Analysis and Commentary Posted in 2018-05
We Need to Talk About Brazil
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Illinois law professor Lesley Wexler comments on the ongoing national strikes by truckers and oil workers in Brazil in protest of the recent steep increase in diesel prices due to international market-based pricing. Wexler expresses specific concerns over calls for a return to a military dictatorship to replace the democracy, despite the prior military government’s corruption and engagement in serious human rights violations including torture, disappearances, and extrajudicial killings.

Far-Reaching Implications of a Narrow Supreme Court Ruling on Tribal Sovereign Immunity
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Cornell University law professor Michael C. Dorf comments on the US Supreme Court’s ruling in Upper Skagit Indian Tribe v. Lundgren, but more specifically the implications of Chief Justice Roberts’s concurrence in that case. Dorf argues that the Chief Justice’s concurrence, taken to its logical conclusion, broadly undermines the basis for much of the Court’s case law involving the sovereign immunity of US states.

No, Oversight Power Does Not Let Congress Ride Shotgun in Criminal Investigations
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Guest columnist and former US Congressman Brad Miller explains why Congress may not intrude on an open criminal investigation, especially not to help political allies who are likely targets. In support, Miller points not only to traditional democratic norms, but also to unequivocal jurisprudence on the limits of congressional oversight.

Big Business Battles the #MeToo Movement
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Marci A. Hamilton, a Fox Distinguished Scholar in the Fox Leadership Program at the University of Pennsylvania, describes how insurance, chamber of commerce, and religious lobbyists are impeding child sex abuse victims’ access to justice in several states. Hamilton points to three states that were considering bills that seemed optimistic but have since been turned sideways by big business and powerful lobbyists.

The Perceived Threat of Trans Identity
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Cornell University law professor Sherry F. Colb explores the reasons behind some people’s refusal to refer to trans men as men and trans women as women. Colb describes some of the concrete harms caused by such refusal, such as policies sending trans women to prisons for the wrong gender—a policy Colb argues violates the Eighth Amendment under the Supreme Court’s jurisprudence.

What Senator Grassley’s Recent Exhortation to (Conservative) Justices to Retire Promptly Says About our Federal Judicial Selection System
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Illinois Law dean and professor Vikram David Amar laments the present state of the federal judiciary system, recently illustrated by Senator Chuck Grassley's call to conservative Supreme Court justices to retire promptly. Amar explains why the proposal of term limits for Supreme Court justices would address some of the concerns of partisanship and would not present issues of judicial independence or due process.

We Are Not Going to Become Less Divided, No Matter How or Why Trump Leaves the White House
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George Washington law professor and economist Neil H. Buchanan explains why the country is not going to be any less divided whether President Trump is impeached or simply not reelected. Buchanan calls upon both sides to acknowledge the strong forces that seek to divide us and to adapt accordingly and realistically.

AT&T’s Hiring of Michael Cohen Was a “Big Mistake,” But Was It More?
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Cornell University law professor Michael C. Dorf discusses a statement by AT&T CEO Randall Stephenson calling his company’s decision to hire Donald Trump’s personal lawyer Michael Cohen “a big mistake.” Dorf describes under what circumstances AT&T’s hiring of Cohen would amount to a crime, and under what circumstances his hiring would not only be legal but a corporate obligation. As Dorf explains, the proper classification of the decision requires more information than the public currently has.

The Good of the Country, or the Good of the Agency? Some Final Reflections on Gina Haspel
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Cornell University law professor Joe Margulies comments on the confirmation hearing of Gina Haspel for director of the Central Intelligence Agency. Margulies initially expressed reservations about Haspel, but he explains her strengths and weaknesses and draws the important distinction between someone who is good for the Agency and someone who is good for the country.

The Sex Assault Avengers: The Enemies and a Superpower
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Marci A. Hamilton—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 Fox Leadership Program at the University of Pennsylvania—analogizes Marvel’s blockbuster Avengers movie with the far more serious (and real) fight for justice for sexual assault victims. Hamilton explains in terms understandable to any moviegoer why statutes of limitations on sexual abuse claims allow the “bad guys” to win.

Rape, Racism, Free Speech, and Fraternities
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Cornell University law professor Sherry F. Colb examines two (real, but slightly altered) conversations in order to explore the thoughts and feelings that might affect the weight we give to principles that support our positions, while disregarding the same principles when they run contrary to our positions. Colb describes the interrelatedness of conversations that arise regarding rape, racism, and free speech, specifically in the context of college fraternities, but applicable to many other situations.

Bad Apologies and the Windrush Scandal
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Illinois Law professor Lesley Wexler comments on the Windrush scandal developing in the United Kingdom, just one example of immigration policies that affect not only undocumented migrants present unlawfully but also undocumented citizens present lawfully. Wexler explores the reasons for the scandal and identifies troubling shortcomings in the apology and remedy offered.

Understanding Free Speech Controversies on College Campuses: A Summary of a Very Helpful Conversation Between Two Leading Analysts—Erwin Chemerinsky and Geof Stone
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Illinois Law dean and professor Vikram David Amar relates insights on campus free speech principles that came up during a recent discussion with renowned constitutional commentators Erwin Chemerinsky and Geof Stone. Among the insights are some possible explanations for why many college students today seem opposed to allowing offensive speech on campus, the different perspectives on the proper role of university officials regarding controversial guest speakers, and the question of when the costs of providing security for controversial speaker events justifies the cancellation or termination of the event.

Stealth Attacks on People’s Lives via Boring Economics
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George Washington law professor and economist Neil H. Buchanan debunks the supposedly simple solutions some purported economists have for complex problems. Buchanan explains that regardless of where one is on the political spectrum, complex social and economic issues—particularly the housing crisis affecting many cities across the country—require considering a number of factors and cannot be solved by “simply” assuming away real-life complications.

Appeals Court Rejects PETA’s “Monkey Selfie” Case
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Cornell University law professor Michael C. Dorf comments on a recent Ninth Circuit decision rejecting an effort by PETA to bring a copyright lawsuit on behalf of Naruto, a crested macaque. Dorf points out that while the result in that case is unsurprising, the court’s reasoning raises important questions about the role of lawsuits and law more generally in furthering the interests of nonhuman animals.

Trust but Verify: The Legal Duties of Broker-Dealers in the Financial System
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In this first of a multi-part series of columns about the legal duties of broker-dealers, Tamar Frankel, the Robert B. Kent Professor of Law at Boston University School of Law, defines fiduciaries and explains the rationale for their duties. In the following columns, Frankel considers the significance of specific words in this context, the legal consequences of such words, and potential ramifications.

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