Analysis and Commentary Posted in 2016-04

An Era of Unchecked Presidential Primaries

Updated:

Former counsel to the president John W. Dean comments on the current role of the national political parties in presidential campaign politics. Dean argues that both Sanders and Trump illustrate candidates’ declining need for the support—financial or otherwise—of the national parties in order to excel in the primary process.

Rabbis With a Conscience Make History

Updated:

Cardozo Law professor Marci Hamilton comments on a recent development in protections for child sex abuse victims’ access to justice: a letter signed by 62 Jewish rabbis and leaders calling for New York to pass the Child Victims Act, which would create access to justice for child sex abuse victims by eliminating and reviving expired statutes of limitations.

Two Courts, Two Interpretations

Updated:

Igor De Lazari, Antonio Sepulveda, and Carlos Bolonha discuss a recent decision by the Brazilian Supreme Court affecting presidential impeachment procedures. The authors point out that the United States and Brazil have similar constitutional origins of impeachment proceedings but that the two countries diverge in interpreting and applying those provisions.

Why Can’t We Buy Cars the Way We Buy Computers?

Updated:

Chapman University Law professor Ronald Rotunda comments on the law in a majority of states requiring car manufacturers to sell through dealers. Rotunda argues that Tesla Motors’ direct-to-consumer model is an excellent opportunity for the state and federal courts to invalidate laws such as these that exist only to favor entrenched economic interests.

What We Could Learn from Brazil (and Vice Versa) About Presidential Impeachment Procedures (and Related Matters)

Updated:

Vikram David Amar, law professor and dean at Illinois Law, compares and contrasts the presidential impeachment procedures in the United States and Brazil. Amar suggests five ways in which these two large presidential democracies could benefit from more detailed study of the other’s procedures.

What Might a Mediator Do for the Parties to the Contraceptive Case in the Supreme Court?

Updated:

Cornell University law professor Sherry Colb considers how the U.S. Supreme Court, acting as a mediator, might approach the parties in Zubik v. Burwell, a case currently before the Court in which the Court made the unusual request of supplemental briefing from the parties. Colb explains both the capabilities and limitations of transformative mediation as a method of resolving disputes.

Prosecutorial Discretion: The Dog That Didn’t Bark in the Immigration Oral Argument—Yet

Updated:

Cornell University law professor Michael C. Dorf comments on the recent oral argument before the U.S. Supreme Court in United States v. Texas, a case involving a challenge to the Obama Administration’s deferred action immigration policy. Dorf points out that underneath the procedural questions actually before the Court in that case is a crucial unasked question: What is the scope of the president’s prosecutorial discretion not to enforce laws duly enacted by Congress?

Chilling Scientific Inquiry

Updated:

Chapman University law professor Ronald Rotunda comments on several instances in which the government is chilling scientific inquiry into the question of global warming. Rotunda argues that the marketplace of ideas, rather than the subpoena power of government, should decide what is true or false.

The Puzzle of Reform, Part II

Updated:

Cornell University law professor Joseph Margulies comments on the reason behind the particular configuration of criminal justice reform that we presently observe. Margulies argues that the pattern can be explained by the group-position thesis, which posits that racial attitudes are determined substantially by competition and conflict among racial and ethnic groups over resources, power, and status in society.

Game’s On: Big Leaguers Zimmerman & Howard Versus Al Jazeera

Updated:

Former counsel to the president John W. Dean continues his discussion of the defamation lawsuits filed by Philadelphia Phillies first baseman Ryan Howard and by Washington Nationals infielder Ryan Zimmerman against Al Jazeera America (AJAM). Dean assesses defendant AJAM’s motions to dismiss both cases for failure to describe facts that give rise to a plausible entitlement to relief, a requirement under federal law.

A Safe Haven for Kody? Sister Wives Star Loses on Appeal, but Protected From Bigamy Prosecution in Utah

Updated:

Hofstra University law professor Joanna Grossman comments on a recent decision by the U.S. Court of Appeals for the Tenth Circuit reinstating Utah’s criminal law banning bigamy. Grossman explains the facts leading up to the lawsuit, the holding of the district, and the reasoning behind the Tenth Circuit’s reversal.

Alcoholics and the Profession of Law

Updated:

Chapman University law professor Ronald Rotunda comments on the prevalence of alcoholism among attorneys as compared to those in other professions. Rotunda urges lawyers with alcohol addiction problems and those who know such people to seek help from programs such as Lawyer Assistance Programs, which are available in nearly all U.S. jurisdictions.

Bucks County DA David Heckler’s Mixed Signals on Pennsylvania’s Statute of Limitations for Child Sex Abuse

Updated:

Cardozo law professor Marci Hamilton examines the position Bucks County, Pennsylvania, District Attorney David Heckler has taken with respect to child sex abuse and sex assault victims. Hamilton points out that Heckler does not seem to truly support the protection of children, based on his role in the misleading statements about SOL in the Task Force Report, the delay in release of a grand jury report that supports SOL reform, and the failure to prosecute a Catholic priest accused of sexual abuse.

On Social Security, at the Very Least, the Dishonesty Is All on the Republican Side

Updated:

George Washington University law professor and economist Neil H. Buchanan explains why, contrary to claims by Republicans, Social Security is not on the brink of bankruptcy or insolvency. Buchanan points out that even in the unlikely event of the worst case scenario—where the Social Security trust fund reaches zero—retirees would still receive modest benefits.

Supreme Court Convenes a Settlement Conference

Updated:

Cornell University law professor Michael Dorf comments on a recent unusual order by the U.S. Supreme Court asking for supplemental briefing from the parties to the latest religious challenge to Obamacare. In contrast with other commentators who have described the order as “puzzling” or “baffling,” Dorf explains how the Court’s order resembles something federal district courts do on a routine basis: facilitate settlement of the dispute.

The Logic of Trump’s Comment Endorsing Punishment for Abortion

Updated:

Cornell University law professor Sherry Colb analyzes Donald Trump’s recent statement—which he subsequently changed—that women who have abortions should be punished for doing so. Colb points out that this position is actually more logically coherent than the more conventional position taken by anti-abortion advocates that the provider be punished for performing an abortion.

Meet our Columnists

Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois College of Law. Immediately prior to taking the position at Illinois, Amar served as the Senior Assoc... more

Neil H. Buchanan

Neil H. Buchanan is an economist and legal scholar and a Professor of Law at The George Washington University. He teaches tax law and tax policy, and he has taught contract law, law and economics, and... more

Sherry F. Colb

Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell University. Colb teaches courses in constitutional criminal procedure, evidence, and animal rights. She has published a... more

John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973. Before becoming White House counsel at age thirty-one, he was the chief minority counsel to the Judiciar... more

Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He has written hundreds of popular essays, dozens of scholarly articles, and four books on constitutional la... more

Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School of Law.  She is an expert in sex discrimination law. Her most recent book,  more

Marci A. Hamilton

Marci A. Hamilton is one of the country’s leading church-state scholars and the Fox Professor of Practice and Fox Family Pavilion Resident Senior Fellow in the Program for Research on Religion in the... more

David S. Kemp

David S. Kemp is an attorney and managing editor at Justia. He received his B.A. in Psychology from Rice University and his J.D. from the University of California, Berkeley, School of Law (Boalt Hall)... more

Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of Record in Rasul v. Bush (2004), involving detentions at the Guantánamo Bay Naval Station, and in more

Anita Ramasastry

Anita Ramasastry is the UW Law Foundation Professor of Law at the University of Washington School of Law in Seattle, where she also directs the graduate program on Sustainable International Developmen... more

Ronald D. Rotunda

Ronald D. Rotunda is the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, at Chapman University, Fowler School of Law. He joined the faculty in 2008. Before that, he was Univ... more