Analysis and Commentary Posted in 2019-11
Trump Administration Lawyer Asserts That a State Courthouse is no Different from a Burger King
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Cornell law professor Michael C. Dorf comments on a lawsuit in which New York State and other plaintiffs are suing the federal government over an immigration policy of arresting undocumented immigrants when they appear in state court on unrelated matters. Dorf explains why the federal judge hearing the case should reject the government’s motion to dismiss the lawsuit.

What Does John Bolton Know, and When Will We Know It? Why the Former National Security Advisor May Hold Trump’s Fate in His Hands
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Dean Falvy, a lecturer at the University of Washington School of Law in Seattle, explains why former National Security Advisor John Bolton may hold the key to what happens with the impeachment proceedings of President Trump. Falvy describes Bolton’s background and shows why he may play such a critical and unique role in what happens to the President.

Another Way That American Democracy Might End
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Neil H. Buchanan, a University of Florida Levin College of Law professor and economist, argues that a 2020 win for President Donald Trump would likely to lead to the end of constitutional democracy. Buchanan points out that the demise would be due not only to what Trump would do if reelected, but also what the Democratic Party and the media would do to pretend that the victory resulted from legitimate processes.

Reducing Pregnancy Discrimination, One Accommodation at a Time
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SMU Dedman School of Law professor Joanna L. Grossman discusses a recent decision by a federal district court in Louisiana correctly applying the U.S. Supreme Court’s decision in Young v. United Parcel Service. Grossman describes the facts of that case and explains how Young affected the outcome; she argues that many cases decided before Young should come out differently now, but only if courts carefully apply the new standard to the facts before them.

What’s Wrong with Blackmail?
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Cornell law professor Sherry F. Colb discusses blackmail and the paradox of coercion, that is, the phenomenon where the law permits two different actions but prohibits a person from making one action a condition of the other. Colb proposes that our laws should evolve over time toward a framework that is less and less supportive of coercion.

2019 Is a Banner Year for SOL Reform, But There Is Much More to Do
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Marci A. Hamilton, professor at the University of Pennsylvania and CEO of CHILD USA, explains why 2019 has been such an historic year for child sex abuse victims. Hamilton points out that children will not thrive in a society where individuals and institutions can ignore child sex abuse without consequence, so we must focus on protecting children and holding perpetrators and institutions accountable.

Is Mississippi’s Distinctive Method of Electing Governors Constitutional? Part One in a Series
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In this first of a series of columns, Illinois law dean Vikram David Amar and professor Jason Mazzone consider whether Mississippi’s method of electing its governor—requiring a successful candidate to win both a majority of the state house of representatives and a majority of districts—is constitutional. Amar and Mazzone describe some of the important issues the case raises under the Fourteenth and Fifteenth Amendments.

Alarmism Is a Necessity and a Virtue in the Age of Trumpian Attacks on the Foundations of the Republic
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University of Florida Levin College of Law professor and economist Neil H. Buchanan argues that, notwithstanding some commentators’ claims to the contrary, President Trump poses an existential threat to democracy in the United States and removing him from office via impeachment would be less messy and divisive than defeating him at the ballot box in November 2020. Buchanan points out that there is no reason to believe that Trump will accept losing the 2020 election, and there is every reason to fear that the inevitable protests by the majority of Americans whose votes defeated Trump will be met with violence.

The Argentine Election and the Limits of the Peter Principle
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Cornell law professor Michael C. Dorf comments on Argentina’s national elections last month, in which the country elected as Vice President Cristina Fernández de Kirchner, who had previously served as President of Argentina from 2007 to 2015. Dorf considers why Kirchner, and indeed anyone, would accept a lower position than what she has previously held. Dorf argues that due to the Peter Principle—which states that workers in a hierarchical organization tend to rise to their level of incompetence—we would do well as a society to abandon the whole concept of a demotion.

“She Slept Her Way to the Top”: The Fourth Circuit Pushes Back on a Harmful Gender Stereotype
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SMU Dedman School of Law professor Joanna L. Grossman comments on a decision by the U.S. Court of Appeals for the Fourth Circuit that spreading a false rumor that a woman “slept her way to the top” constitutes sex discrimination. Grossman points out that this case raises yet another example of the many ways in which working women do not compete on an equal playing field.

Dear Mayor “Extremely Vague” and Senator “Pipe Dream”: Put Up or Shut Up
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University of Florida Levin College of Law professor and economist Neil H. Buchanan calls upon Democratic presidential candidates Mayor Pete Buttigieg and Senator Amy Klobuchar to step up and say what they are for, rather than merely what they are against. While Buchanan acknowledges that he does not fully agree with Warren’s Medicare-for-All proposal, but he praises her for being bold enough to put forth a plan, unlike many of her competitors.

Are Open Door Policies Cost-Justified?
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Cornell law professor Sherry F. Colb comments on a minority practice by a number of male faculty at law schools and other institutions of announcing an “open door” policy in their offices, purportedly to protect against false accusations of sexual assault or sexual harassment. For purposes of discussion, Colb steps into the role of a hypothetical male faculty member who has such a policy, and then stepping back out of role, she discusses the pros and cons of such policies.

The Constitutional Permissibility (Under the First Amendment) of Public School District Zero-Tolerance Policies on Racial Epithets
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Illinois law dean and professor Vikram David Amar discusses a recent controversy involving the termination of a Wisconsin public school security guard under a zero-tolerance policy on racial epithets. Amar explains why, if the guard had chosen to sue, he likely would have lost in court based on current precedent, and Amar uses the apparent injustice of that outcome to illustrate that public employees often don’t realize how much their speech can be proscribed and prescribed by their government employers.

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