A Republican Reverie: If Only Clinton Had Won!

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George Washington law professor and economist Neil H. Buchanan argues that a Clinton victory in 2016 would have been better for Republicans than Trump has been. Buchanan explains why Republican obstructionism, if carried into a Clinton presidency, would have meant longer-term wins for Republicans across multiple branches of government.

Supreme Court of India Protects a Right to Privacy

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Cornell University law professor Michael C. Dorf comments on a recent decision by the Supreme Court of India in which that court ruled that the Constitution of India protects a right of privacy. Dorf explains the significance of the decision not only for the largest democracy in the world, but also for people in other constitutional democracies, including the United States.

More Aggressive Antitrust Enforcement Would Create More Jobs and Grow the Economy

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Guest columnist and UC Hastings adjunct professor Samuel R. Miller contrasts the recent decision by antitrust enforcers in Europe to fine Google $2.7 billion for abusing its dominant position in internet search with the FTC’s decision not to pursue an antitrust case against Google based on similar allegations. Miller argues that the US should shift toward the EU’s position on antitrust law and that such a policy change would not even require any modifications of statutory language.

Don’t Shred the Evidence

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Cornell University law professor Joseph Margulies comments critically on the decision by the Bureau of Immigration and Customs Enforcement (ICE) to destroy certain records regarding detainees held in ICE custody. Margulies argues that the information ICE seeks to destroy can be helpful in assessing the conditions, staffing, supervision, and practices in various facilities, for the purpose of improving the worst ones and learning from the ones with the best practices.

Can Texas Require Separate Insurance Coverage For Abortion?

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Cornell University law professor Sherry F. Colb considers a recently passed Texas law that will require people who want insurance coverage for non-emergency abortions to buy an additional, separate policy from their regular health insurance policy. Colb explains that proponents of the law argue that individuals should not have to fund practices with which they fundamentally disagree, but she points out that many taxpayers provide funding for government activities with which they fundamentally disagree and this situation is arguably no different from those.

Out in the Open: The Alt-Right Learns About Privacy in the Modern World

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Joanna L. Grossman, SMU Dedman School of Law professor, and Lawrence M. Friedman, a Stanford Law professor, comment on the decreased privacy of the modern world, as recently illustrated by the very public identification of some of the alt-right demonstrators in Charlottesville, Virginia, from photos and videos of the rally. Grossman and Friedman point out that technology is making anonymity a thing of the past and that only affirmative legislative changes, such as recognition of a “right to be forgotten,” can alter that course.

An Accidental Argument for Progressive Taxation from One of the Marie Antoinettes of the Trump Administration

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George Washington law professor and economist Neil H. Buchanan comments on the response of Louise Linton, wife of Treasury Secretary Steve Mnuchin, to criticism regarding her bragging about wearing expensive clothes in a government jet. Buchanan points out that Linton’s path to fortune is based not on her hard work but largely on circumstances beyond her control, and he argues that simply being a billionaire does not necessarily mean one has positively contributed to society to get there.

Free Speech Issues Raised by Internet Companies Denying Service to Neo-Nazi Sites

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Cornell University law professor Michael C. Dorf uses the refusal of private internet domain registrars to do business with neo-Nazi website The Daily Stormer to illustrate the need for a change in the law. Dorf acknowledges that in the case of The Daily Stormer, no rights were violated, and the companies acted within their terms of service. However, Dorf argues that Congress should impose obligations to respect freedom of speech on companies that provide essential internet services to avoid the future possibility that such private companies stifle speech of worthy organizations and legitimate causes.

Explicit Bigotry and Veiled Racism in the Trump Era

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George Washington law professor and economist Neil H. Buchanan warns of the false distinction between being racist and supporting racist policies. Buchanan points out racism is not limited to those marching with Nazis and Klansmen; to consistently support policies that invariably harm disadvantaged people is its own form of racism and is itself reproachable.

Symbols and Distractions

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Cornell University law professor Joseph Margulies comments on the announcement by the White House that it would expand the U.S. prison at Guantanamo. Margulies describes the role that Guantanamo has taken on—including its extremely high cost of operations—and the symbolic role it has for Donald Trump and his supporters.

It’s an Either-Or Question: Trump or Decency

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Marci A. Hamilton, a professor and resident senior fellow in the Fox Leadership Program at the University of Pennsylvania, minces no words in criticizing President Trump’s taking sides with neo-Nazis and supporters of the KKK. Hamilton calls upon everyone to make known where they stand—either with Trump in betraying fundamental American values, or on the side of decency.

The Meaning of an Alabama Abortion Law Governing Minors

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Cornell University law professor Sherry F. Colb explains the meaning behind an Alabama law governing minors who wish to have an abortion but are unable or unwilling to get their parents’ consent. Colb argues that the law was correctly struck down in federal court, but that the message the law’s passage sends is clearly hostile to women’s right to abortion.

Indicting the President: President Clinton’s Justice Department Says No

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Chapman University Fowler School of Law professor Ronald D. Rotunda explains his legal conclusion in the opinion letter he authored for Ken Star regarding the ability of a federal grand jury to indict a sitting president. Rotunda points out that the key difference between then and now is the presence of a special prosecutor statute protecting independent counsel from removal.

Why One Can Support Affirmative Action but Oppose Favoring Whites Over Asians When Administering It

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Illinois Law dean and professor Vikram David Amar comments on the recent indications that the Trump Justice Department will investigate and possibly sue colleges and universities that make use of race-based affirmative action. Without expressing views as to the merits of pending lawsuits, Amar explains how one can simultaneously support race-based affirmative action and oppose the so-called “Asian penalty”—that is, systematically requiring Asian American applicants to have higher scores than white applicants.

What Do Colleges Have to Fear From Trump Justice Department’s Anti-Affirmative Action Policy?

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Cornell University law professor Michael C. Dorf highlights some potentially dangerous consequences of the Justice Department’s recent indication that it would be investigating and suing colleges and universities that practice affirmative action. Dorf points out that the executive branch holds significant power over both public and private universities and colleges, and that it could exercise that power to induce significant changes in admissions policies.

Reason in the Time of Trump’s Transgender Tweet: The Military Benefits of Fortifying Pro-Dignity and Anti-Discrimination Norms

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Illinois Law professor Lesley Wexler explains why the U.S. military would benefit from strengthening its pro-dignity and anti-discrimination norms, rather than implementing divisive discriminatory policies such as President Trump’s recent tweet regarding transgender service members. Wexler points to concrete ways inclusivity fortifies the military and calls upon leadership to embrace inclusive policies.

Phillips

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Cornell University law professor Joseph Margulies describes the remarkable transformation of Phillips, a community in Minneapolis, from “Murderapolis” to a thriving, vibrant, safe community. Margulies uses this example to point out that when police and communities they serve work together effectively, truly positive change can emerge.

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