Analysis and Commentary Posted in 2017-05
What Gianforte’s Special Election Victory Teaches About Freedom of the Press
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Cornell University law professor Michael C. Dorf comments on the recent election of Republican Greg Gianforte in Montana, despite Gianforte’s being charged with misdemeanor assault for body-slamming a reporter. Dorf considers the broader implications of voters’ apparent indifference to the assault.

Predicting Donald Trump’s Presidency
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John W. Dean, former counsel to President Richard Nixon, explains the type-analysis developed by political scientist and presidential scholar James David Barber, and applies it to President Trump. Dean observes that Trump fits the Active/Negative type—a type also exhibited by John Adams, Woodrow Wilson, Herbert Hoover, Lyndon Johnson, Richard Nixon, and George W. Bush. Dean argues that presidents of this type have had what he describes as “failed presidencies.”

The Trump Presidency is the Best Civics Lesson in Our Lifetimes
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Marci A. Hamilton, a Fox Distinguished Scholar in the Fox Leadership Program at the University of Pennsylvania, discusses how missteps by the Trump Administration have offered the American people a refresher in basic concepts of U.S. government. Hamilton breaks down these various civics topics and explains how the actions of Donald Trump and his administration have returned subjects such as checks and balances, constitutional allocation of power, and impeachment to the forefront of minds in the American public.

Politics in the U.S. Will Continue to Be Brutal and Nasty, With or Without Impeachment
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George Washington law professor and economist Neil H. Buchanan predicts that regardless of the immediate future of President Trump, the foreseeable future of American politics will be dysfunctional. Buchanan argues that everyone who wants to improve the future of our country should look for solutions regardless of whether they support impeachment or not.

“Dot the i’s and Cross the t’s”: Louisiana Supreme Court Voids Prenuptial Agreement for Signature Defect
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SMU Dedman School of Law professor Joanna L. Grossman describes a case in which the Louisiana Supreme Court voided a prenuptial agreement for its failure to abide by strict formalities required in that state. Grossman discusses the history of prenuptial and postnuptial agreements and uses this case and one from New York to illustrate the importance of paying attention to the details when forming these documents.

A Primer on Impeachment (With Special Attention to the Recent Allegations of Interference by President Trump in the Flynn/Russia Investigation)
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Illinois Law dean and professor Vikram David Amar explains a few basics about the presidential impeachment process. Amar points out that impeachable conduct does not need to violate criminal statutes, that presidential participation in pending investigations isn’t necessarily wrong (but can be), and that not all “high crimes and misdemeanors” must lead to impeachment.

A Fresh Look at Jury Nullification
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In response to a recent episode of the podcast Radiolab that relates the story of a juror who was prosecuted for attempting jury nullification, Cornell University law professor Sherry F. Colb considers how we ought to think about the power of jurors to acquit for any reason. Colb explains what jury nullification is and describes some situations in which it is most clearly appropriate and some in which it is problematic. She also proposes a solution to address bias in all phases of the criminal process, rather than just prosecution and trial.

One Good Thing Donald Trump’s Presidency Has Done: Improved Journalism
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Former counsel to president Richard Nixon John W. Dean explains how the flurry of news surrounding President Trump has, if nothing else, improved the quality of journalism. Dean points out that the critical thinking and work of journalists is at least as strong right now as it was during the Watergate scandal and they are admirably digging for truth rather than taking statements at face value.

What Employment Discrimination Law Teaches About the Comey Firing
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Cornell University law professor Michael C. Dorf comments on President Trump’s decision Tuesday night to fire FBI Director James Comey. Though Title VII obviously does not apply to Trump’s action, Dorf analogizes to the framework used in Title VII employment discrimination contexts to demonstrate that the evidence overwhelmingly suggests Trump’s asserted grounds for firing Comey were pretextual.

“Stealthing”: Is Secret Condom Removal Akin to Sexual Assault?
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Cornell University law professor Sherry F. Colb comments on “stealthing,” a practice in which men surreptitiously remove their condoms while having intercourse. Colb considers whether the practice is best characterized as sexual assault, as some have argued, or whether it is a different kind of harm that should be addressed through a different set of legal processes.

Discrimination Begets Discrimination: The Ninth Circuit Allows Prior Salary to Justify Paying Women Less Than Men for the Same Work
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SMU Dedman School of Law professor Joanna Grossman comments on a recent decision by the U.S. Court of Appeals for the Ninth Circuit perpetuating pay disparities between men and women by allowing an employer to rely on prior salary in determining pay. Grossman explains why the use of salary history undermines the purpose of the Equal Pay Act of 1963 and argues that laws prohibiting use of salary history, like Massachusetts has, require an employer to think about how much the work is worth rather than how much the person is worth.

George Wallace at Harvard—The Good Old Days of Campus Free Speech
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Chapman University, Fowler School of Law, professor Ronald D. Rotunda comments on the plight of free speech on college campuses and elsewhere. Rotunda describes the limitations on speech imposed not only by college campuses, but also by governments, despite their ostensible support for the freedom of speech.

An Academic Year-End Look at Some Bright Spots and Significant Challenges for Legal Education
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Illinois Law dean Vikram David Amar comments on two important indicators of the health of legal education—employment outcomes and bar passage rates. Amar points out that based on the currently reported data on employment for America’s ABA-accredited law schools, the overall percentage has gone up for the Class of 2016 as compared to the Class of 2015. Amar also argues that law schools should take a deeper look at the factors contributing to low (and in some cases, increasingly low) bar pass rates.

Assessing President Hillary Clinton’s First 100 Days
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George Washington law professor and economist Neil H. Buchanan pens an alternate history—where we would be today if Hillary Clinton had been elected rather than Donald Trump. Buchanan’s alternate history calls attention to the extreme tactics used by Republicans regardless of who sits in the White House.

A Hundred-Plus Days of Incompetent Lawyering and Attempts to Delegitimate Dissent
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Cornell University law professor Michael C. Dorf describes President Trump’s first hundred days in office as characterized by incompetence and efforts to delegitimate the courts and the press. Dorf argues that the incompetence runs throughout Trump’s administration, not only in Trump himself.

Snap to It: Why Theresa May Called an Early Election, and Why Her Expected Win May Be a Loss for Britain
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Guest columnist Dean Falvy, a lecturer at the University of Washington School of Law and attorney with an international business practice, explains why (and how) British prime minister Theresa May called an early election for June 8. Falvy describes the legal basis for the election and predicts that rather than leading to a kind of national rebirth, Brexit may actually end up being the catalyst for the rapid dissolution of the United Kingdom.

What We Really Mean by the Culture War
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Cornell University law professor Joseph Margulies points out that teaching about religion is substantially different from promoting one religion at the expense of another, or of promoting religiosity at the expense of agnosticism or atheism. Margulies argues that a San Diego school district’s choice to teach about Islam promotes a safe climate of respect and toleration, notwithstanding claims that it has “surrendered” to Sharia law.

Meet our Columnists
Vikram David Amar

Vikram David Amar is a Distinguished Professor of Law at UC Davis School of Law and a Professor of Law and Former Dean at the University of Illinois College of Law on the Urbana-Champaign campus.... more

Neil H. Buchanan

Neil H. Buchanan, an economist and legal scholar, is a visiting professor at both Osgoode Hall Law School and the University of Toronto Law school. He also holds the James J. Freeland Eminent... 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... 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 six books on constitutional... more

Samuel Estreicher

Samuel Estreicher is Dwight D. Opperman Professor of Law and Director of the Center of Labor and Employment Law and Institute of Judicial Administration at New York University School of Law. He... more

Leslie C. Griffin

Dr. Leslie C. Griffin is the William S. Boyd Professor of Law at the University of Nevada, Las Vegas Boyd School of Law. Prof. Griffin, who teaches constitutional law and bioethics, is known for... more

Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School of Law and is currently serving as the Herman Phleger Visiting Professor at Stanford Law School. ... more

Marci A. Hamilton

Professor Marci A. Hamilton is a Professor of Practice in Political Science at the University of Pennsylvania. She is also the founder, CEO, and Academic Director of CHILD USA, a 501(c)(3)... more

Joseph Margulies

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

Austin Sarat

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College.Professor Sarat founded both Amherst College’s Department of Law,... more

Laurence H. Tribe

Laurence H. Tribe is the Carl M. Loeb University Professor Emeritus at Harvard University and Professor of Constitutional Law Emeritus at Harvard Law School, where he has taught since 1968. Born in... more

Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately prior to taking the position at Illinois, Wexler was a Professor of Law at Florida State University,... more