Analysis and Commentary on Injury Law

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.

Sorry Lessons

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Illinois law professor Lesley Wexler considers the apologies issued by celebrity men recently accused of sexual misconduct and argues that they ultimately fall short of making genuine amends to their victims. Wexler breaks down the components of a sincere apology, discusses the question of compensatory amends, and ultimately concludes that both the United States government and the celebrity men in question have failed to issue apologies of any true substance to those they have wronged. To highlight her point, Wexler compares contemporary examples in which the Canadian government has stepped up to offer proper apologies and provide compensation to victims of its past harmful policies.

Why Washington Reacts More Slowly to Sexual Misconduct Allegations Than Hollywood

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Cornell University law professor Michael C. Dorf considers the recent spate of sexual misconduct allegations in the political sphere and entertainment industry, and notes how much less inclined to action and condemnation the former is compared to the latter. Dorf illustrates this point by considering the allegations against Donald Trump and Roy Moore, as well as various well-known Hollywood players, then evaluates several factors that may explain the contrast in reactions. Dorf concludes that the polarized, partisan state of our government, coupled with weak political parties, ultimately leaves Washington far more powerless to purge offending individuals than Hollywood.

Listen Up: There Is a Solution to the Sex Abuse and Harassment Epidemic Unfolding Before Your Eyes—And You Will Be Surprised at Who Must Step Up to Succeed

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Professor and resident senior fellow in the Fox Leadership Program at the University of Pennsylvania, Marci A. Hamilton addresses the issue of sex abuse and harassment in light of the accusations made against many high-profile men recently. With a focus on the perpetrators, then the victims of their abuse, Hamilton explains why the general public might be (wrongly) disinclined to believe these men are guilty and unpacks why it often takes the victims such a long time to come forward. Hamilton also offers a multi-part solution to this epidemic, laying the moral responsibility of improvement and change squarely on the shoulders of the lawyers and insurance companies that represent these abusive men in various contexts.

What Needs to Happen Next for the #MeToo Campaign to Fulfill Its Potential

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Professor and resident senior fellow in the Fox Leadership Program at the University of Pennsylvania, Marci A. Hamilton praises the #MeToo campaign and explains what more needs to happen to meaningfully address the pervasive issues of sexual assault and abuse against children and adults. Hamilton points to the brave actions by Olympic gymnast McKayla Maroney and elaborates on what must change in our society to empower victims and hold those in power accountable.

Bullies, Bullies Everywhere

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Professor and resident senior fellow in the Fox Leadership Program at the University of Pennsylvania, Marci A. Hamilton points out two ways the legal system reinforces a culturally ingrained fear of undermining the “family breadwinner”: short statutes of limitations (SOLs) for sex abuse and defamation law. Hamilton argues that fixing the SOLs and defamation law can shift the balance of power between perpetrators and the victims.

Ideal Victims and the Damage of a Damage Free Victory

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Illinois law professor Lesley Wexler considers the how the public perceives victims of physical abuse who renounce the monetary rewards to which they are legally entitled. Wexler points to several high-profile cases in which the victim donated or did not seek monetary damages, and critiques the media for lauding the economic selflessness of these female assault victims in a way that obscures the important role of compensatory and punitive damages, particularly for victims who rely on those damages to seek to become whole.

Who Pays for Sex Abuse?

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Marci A. Hamilton, a professor and resident senior fellow in the Fox Leadership Program at the University of Pennsylvania, describes the enormous costs associated with child sex abuse that fall on the victims’ families, government welfare programs, and society. Hamilton points out that there is no comprehensive metric that considers all of the costs, but the ones that have been measured are staggering.

Can a Presidential Candidate Get Away With Defamatory Lying?

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Cornell University law professor Michael C. Dorf analyzes the arguments made by Donald Trump’s lawyers in defending against Summer Zervos’s defamation suit against him, specifically the argument that Trump’s comments were mere “hyperbole” and “fiery rhetoric,” which, in the context of a presidential campaign, do not amount to defamation under state law. Dorf argues that existing law already offers politicians some protections against frivolous lawsuits, and what Trump’s lawyers are asking for is essentially a license for a candidate to lie about anyone and anything so long as the controversy has some connection to politics.

The Silence of the Children (Locked Away in the Secret Archives of the Archdiocese of New York City)

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Marci A. Hamilton—a Fox Distinguished Scholar in the Fox Leadership Program at the University of Pennsylvania, and the CEO and Academic Director of CHILD USA—explains why the New York Senate refuses to take up the issue of the Child Victims Act, which would reform the state’s antiquated child sex abuse statutes of limitations. Hamilton points out that none of the arguments against reform actually hold water and that the real reason lies in the secrets contained in the Secret Archives.

Absolute Power Corrupts Absolutely in The Keepers

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Marci A. Hamilton, a Fox Distinguished Scholar in the Fox Leadership Program at the University of Pennsylvania and CEO of CHILD USA, encourages everyone to watch the Netflix docuseries The Keepers, which addresses child sex abuse in the Catholic Church. Hamilton describes the progress toward justice for child sex abuse victims, including the growing awareness of the pervasiveness the problem and increasing numbers of states who extend or eliminate statutes of limitations for these types of lawsuits and prosecutions.

“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.

Texas Moves Toward Abolishing Wrongful Birth Suits

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Cornell University law professor Sherry F. Colb comments on a Texas bill currently under consideration that would eliminate the “wrongful birth” cause of action. Colb defines wrongful birth and points out that while its opponents argue that it encourages abortion, it actually encourages forthrightness and honesty among physicians, which should already be the standard of conduct. In fact, Colb argues, it is not the availability of a lawsuit that “encourages” abortion so much as the fact of the severe disability and the toll that this could take on their lives as well as on the life of the child whose birth is under consideration.

The Drumbeat of SOL Reform

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Marci A. Hamilton, a Fox Distinguished Scholar in the Fox Leadership Program at the University of Pennsylvania, and the CEO and Academic Director of CHILD USA, comments on the current progress of state statutes of limitations (SOL) for child sex abuse. Hamilton is optimistic that eventually the SOL for child sex abuse will be eliminated in every state, but she points out that the pace can be frustratingly slow.

A Cool Wind Blows Over an Alaska Marriage, but Alienation of Affections Claim Not Viable

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SMU Dedman School of Law professor Joanna L. Grossman comments on a recent decision by the Alaska Supreme Court holding that alienation of affections is not a cognizable claim in that state. Grossman explains the history of so-called heart-balm actions, including alienation of affections, and chronicles their gradual decline over time in most states.

This Holiday Weekend, Try Not to Be Penn State

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Marci A. Hamilton, a Fox Distinguished Scholar in the Fox Leadership Program at the University of Pennsylvania, points out that for many victims of child sexual abuse, the holiday season is a time of torture of revisiting painful memories, rather than joy. Hamilton calls upon us to address the problem of child sex abuse directly by changing the laws, teaching the adults, reforming the institutions, and supporting the victims.

The State Law Gauntlet Facing Child Sex Abuse Survivors: A Long Way to Go to Child-Centered Justice

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Marci A. Hamilton, a Fox Distinguished Scholar in the Program for Research on Religion at the University of Pennsylvania, explains how federal and state law interact to block survivors of child sex abuse from justice. As Hamilton explains, extending statutes of limitations for bringing abuse claims, or eliminating them altogether, is only one (albeit critically important) step state legislators must take toward helping survivors get the justice they deserve.

Timothy Dolan Implements the Penn State Playbook for Child Sex Abuse Victims: The Best Argument Yet for SOL Reform

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Marci Hamilton, a Fox Distinguished Scholar in the Program for Research on Religion at the University of Pennsylvania, comments on the recent announcement by Cardinal Timothy Dolan of an Independent Reconciliation and Compensation Commission intended to help some clergy sex abuse victims in the New York City Archdiocese. Hamilton describes Dolan’s mixed record on justice for sex abuse victims but hails the latest development as a step in the right direction.

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