Analysis and Commentary Posted in 2017-12
One Law School Dean’s (Partial) List of New Year’s Resolutions
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Illinois Law dean and professor Vikram David Amar offers five resolutions he, as a law school dean, hopes to achieve in 2018. These resolutions include taking time to read recent scholarship by his faculty, increasing attendance at campus events, improving communication between faculty and alumni, managing (and reducing, when feasible) bureaucratic burdens, and spending more time with students.

The New Tax Law Punishes Blue States: Is That Constitutional?
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Cornell University law professor Michael C. Dorf considers whether the new tax law, which disproportionally affects “blue” states as compared to “red” states due to changes to the deductions for state and local taxes (SALT), is unconstitutional. Dorf explains some of the possible arguments against the law but ultimately concludes that due to difficulties of proof, courts probably won’t end up ruling that the SALT deductibility cap violates the First Amendment or a core principle of federalism.

Thanks for Everything. Now Get Out.
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Cornell University law professor Joseph Margulies critiques some recent characterizations of Olneyville, a neighborhood on the west side of Providence, Rhode Island. Though the authors he critiques likely write with the best intentions toward Olneyville, Margulies points out that their articles capture three of the most important challenges facing Olneyville and neighborhoods like it across the country: the tendency to look at poverty without seeing the poor, the threat of stereotyping, and the specter of unmanaged and disruptive growth. Having spent much time in Olneyville himself, Margulies observers that the neighborhood has been changing for the better for years now, due to the hard work of the community itself.

Bitcoins: The Evolution of Money and the Enforcement of the Law
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Boston University law professor Tamar Frankel describes the history of money and its role in societies and governments, leading up to today’s bitcoin and the issues governments face in attempting to regulate the cryptocurrency. Rather than purport to provide answer to these pressing questions, Frankel seeks instead to open the door to plain English discussions about the duality of money as asset and as money, the legal control of money transfers to prevent violations of the law, and the government’s control of money supply, which affects the economy and financial systems.

Why Justice Gorsuch May Have Avoided the Word “Privacy” at the Carpenter Oral Argument
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Cornell University law professor Sherry F. Colb comments on the recent oral argument in Carpenter v. United States, in which the US Supreme Court will consider whether the Fourth Amendment requires the government to obtain a warrant before demanding that a cell phone service provider reveal location data about a target’s phone for a certain period of time. Colb notes that during oral argument, the Court’s newest justice, Justice Neil Gorsuch, conspicuously avoided using the word “privacy”—a choice that Colb suggests reflects his views on substantive due process and the rights that flow from that constitutional principle, such as abortion and physician assistance in dying.

Reflections on America’s Reckoning with Sexual Harassment
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SMU Dedman School of Law professor Joanna L. Grossman reflects on the wave of stories of sexual harassment and assault that have come to light in 2017. Grossman points out that sexual harassment of women, particularly in the workplace, is not a new phenomenon, but the sheer number of women sharing their stories today has emboldened others to come forward, and may even signal a cultural shift to address this pervasive problem. Grossman argues that true change will only come when institutional actors decide to hold themselves accountable for the way women are treated.

Facebook, Russian Interference and the Monsters on Maple Street
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Chapman University, Fowler School of Law, professor Ronald D. Rotunda compares the Russian interference with American democracy with an episode of Rod Sterling’s The Twilight Zone from over fifty years ago. Rotunda points out that even with a relatively modest budget, the Russian government was able to exploit the most dangerous enemy of any society—the people who comprise it.

Three Big Constitutional Lessons of 2017 That Are Not Fully Appreciated
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Illinois Law dean and professor Vikram David Amar describes three important constitutional takeaway lessons from 2017. First, improper motive is the key to attacking many government actions, but it is a difficult ground on which to succeed. Second, the US Supreme Court seems to take a different position from that of lower courts on a number of issues. Finally, many norms that people assume are enshrined in the Constitution are actually not.

Damning Democrats With False Equivalence Is Bad, But This Is Worse
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George Washington law professor and economist Neil H. Buchanan describes several instances in which supposedly neutral (or even liberal) sources are unjustly criticizing Democrats for everything they do, characterizing them as hapless losers. Buchanan explains why this criticism is not only unfair but worse than even false equivalence arguments.

Facebook Messenger Kids—Good for Whom?
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University of Washington law professor Anita Ramasastry comments on Facebook’s recently announced messenger app for kids. Ramasastry describes the key features of Facebook’s new program and explores the privacy and safety concerns that arise with this business model. She calls upon policymakers or advocacy groups to weigh in, as well, anticipating that this will not be the only business model aimed at kids in this manner.

Liberty and Equality Sometimes Require Tragic Choices, Just Not in Masterpiece Cakeshop
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Cornell University law professor Michael C. Dorf explains why the Masterpiece Cakeshop case before the US Supreme Court—in which the Court will decide whether a baker may refuse to serve a gay couple based on his religious beliefs—does not present a difficult choice between liberty and equality. Rather, Dorf points out, the baker’s free speech claim in this case should be relatively easy to reject because a cake without an articulate message on it does not constitute the “speech” of the person who made it.

Why Government?
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Cornell University law professor Joseph Margulies points out that “the market” did not create any of the benefits to which most of us have come to feel entitled to—including workers’ compensation, mortgage interest deductions, veterans’ benefits, non-discrimination laws, and many more. Rather, the federal government created these things, and the government continues to play a critical and beneficial role in everyone’s lives, despite widespread sentiment that “government is bad.” Margulies looks specifically to the Low Income Housing Tax Credit, which is the primary reason affordable housing exists, albeit in lesser numbers than is currently needed, and points out that this and other critical services are at risk in the GOP tax bill.

Cluster Munitions: Policy Reversal and International Law Norms
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Illinois Law professor Lesley M. Wexler comments on the Trump administration’s reversal of longstanding policy on cluster munitions. Wexler describes both what changes and what remains the same under the new policy and considers whether, taken in the context of other similar shifts in policy, the Trump administration is implementing its “America-First” approach and discarding prior policies that upheld international law norms.

The Masterpiece Cakeshop Oral Argument and the Fatal Flaw in the Bakers’ Free Speech Argument
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Marci A. Hamilton, a professor and resident senior fellow in the Fox Leadership Program at the University of Pennsylvania, reacts to the oral argument in Masterpiece Cakeshop v. Colorado Civil Rights Comm’n, in which the Supreme Court will decide whether a Colorado baker may refuse to serve a same-sex couple on the basis that doing so would violate his religious beliefs. Hamilton argues that lawyer for the baker, as well as the solicitor general arguing in support of the baker’s position in the case, took the nonsensical position that the cake serves as the baker’s speech in the couple’s private ceremony. Hamilton points out that the cake is actually the couple’s expression to each other and to those present at the ceremony, just as any other product is simply a product imbued only with the meaning intended by its purchaser.

Why “Believing Women” Has Been a Challenging Task
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Cornell University law professor Sherry F. Colb explains why it is so difficult for society as a whole to believe women’s accounts of sexual assault and harassment. Colb argues that the first step in developing solutions is for society, and particularly men, to admit that many (if not all) of these claims are true, and once that happens, then one has to either say that such behavior is acceptable or unambiguously condemn the behavior. Assuming that one rightfully condemns the behavior, Colb points out that the next step is to investigate the claims and impose whatever penalties are appropriate.

Texas Strikes Out Again: Federal Court Halts Enforcement of Yet Another Unconstitutional Anti-Abortion Law
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SMU Dedman School of Law professor Joanna L. Grossman comments on a recent decision by a federal court in Texas permanently enjoining the State of Texas from enforcing an unconstitutional anti-abortion law. Grossman provides a brief background of both Texas and the law at issue and explains why the federal court struck it down. Grossman points out that the clear weight of Supreme Court jurisprudence supports the district court’s reasoning and decision.

Some Tips For Succeeding on Law School Exams
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Illinois Law dean and professor Vikram David Amar offers some timely tips for law students during the law school exam season. Noting that there often seems to be a divide between what students know on a given topic and what their exam answers convey to a grader, Amar provides common sense test-taking suggestions to help bridge that gap, as well as insight into what law professors often look for in a successful exam answer.

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 the University of Toronto Law school. He is the James J. Freeland Eminent Scholar Chair in Taxation Emeritus at the... 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 and CEO of CHILD USA, a 501(c)(3) nonprofit academic think... 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