Verdict

Cornell law professor Michael C. Dorf explains why Trump v. Sierra Club, a challenge to President Trump’s border wall currently pending before the U.S. Supreme Court, exemplifies the needless complexity of federal court gatekeeping law. Professor Dorf lists the various legal doctrines that restrict access to the federal courts and argues that their number and complexity tend to undercut, rather than serve, justice.

Illinois law professor Lesley M. Wexler and Nicola Sharpe discuss various corporate responses to the recent storming of Capitol Hill and consider whether such responses might constitute private transitional justice. Professors Wexler and Sharpe point out, however, that simply vocalizing a commitment to social justice, diversity, and inclusivity is not enough; corporations should diversify boards and leadership representation and take other quantifiable steps that transform corporate culture and processes.

SMU Dedman School of Law professor Joanna L. Grossman comments on an executive order the Biden administration issued last week revoking the so-called Mexico City policy, which provided that foreign non-governmental organizations (NGOs) who received U.S. international family planning assistance could not offer abortion services, even if the services were funded with non-U.S. money. Grossman hails the decision as a good start but argues that more is needed to meaningfully undo the harmful policies of the Trump administration because of its implementation of a “domestic gag rule” in addition to the global one.

UF Levin College of Law professor and economist Neil H. Buchanan argues that the text of the Constitution makes clear that Congress has the power to impeach and convict Donald Trump, even though he is no longer President. Buchanan describes the unambiguous textual support for this conclusion, which Buchanan (and others) argue is also amply supported by the Constitution’s purpose, structure, and other interpretive approaches.

Illinois law professor Lesley M. Wexler describes how Amanda Gorman’s The Hill We Climb and Jericho Brown’s Inaugural,’ an Original Poem—as two inaugural poems—fit within the call of transitional justice. Professor Wexler explains how, read together, the two poems provide a roadmap of the transitional justice terrain the government may choose to tread.

NYU law professor Samuel Estreicher discusses a recent decision by the Tenth Circuit in Fedor v. United Healthcare, in which the court clarified that a court must first find agreement to arbitrate before the severability doctrine comes into play. Professor Estreicher explains the severability doctrine, describes the facts giving rise to the case, and the Tenth Circuit’s reasoning behind its conclusion.

Cornell law professor Sherry F. Colb explores the problem of fat discrimination and considers what a law of anti-fat discrimination might look like, and why it could be important. Professor Colb explores the similarities and differences between legally protected characteristics and fatness and expresses optimism that a change in law could persuade some individuals to recognize fat people for the colleagues, students, friends, partners, and neighbors that they are.

NYU law professor Samuel Estreicher responds to an op-ed by Ron Holland criticizing the recent announcement of a members-only union of 300 Google workers. Professor Estreicher points out several errors and assumptions in Mr. Holland’s piece, and he argues that, in sum, there is no good public policy case for barring or restricting members-only unionism.

UF Levin College of Law professor and economist Neil H. Buchanan points out that although Trump’s coup failed, Republicans now have in front of them all of the building blocks necessary to impose one-party rule in the United States within the next four years. In this first of a series of columns, Professor Buchanan describes but a few of the available options Republicans have to rig elections in their favor.

Cornell law professor Michael C. Dorf comments on the willingness of Americans to believe lies and misinformation, pointing to confirmation bias and social media bubbles as playing key roles in this problem. Professor Dorf argues that we must render Trumpism beyond the pale, in part by shunning those who spread lies and minimizing opportunities for them to spread dangerous misinformation and incite riots.

Illinois law professor Lesley M. Wexler discusses the possibility of and criteria for amend making, amid calls for national unity and moving forward after the violence at the Capitol on January 6. Professor Wexler focuses on Oklahoma Senator James Lankford’s recent apology after his call for an electoral commission, applauding Senator Lankford for his willingness to apologize but pointing out that these actions alone do not undertake much of the hard work demanded by restorative and transitional justice.

Austin Sarat—Associate Provost and Associate Dean of the Faculty and William Nelson Cromwell Professor of Jurisprudence & Political Science at Amherst College—and history teacher John deVille argue that George should take the lead in holding Donald Trump accountable for crimes against democracy. Professor Sarat and Mr. deVille point out that a criminal trial with Trump in the dock would be both “a galvanizing national seminar on democratic values” and “a chance for officers of the court to question the President in a forum where he could neither obfuscate nor intimidate.”

UF Levin College of Law professor and economist Neil H. Buchanan argues that the President’s pardon power is not absolute or unreviewable, despite what many have suggested. Professor Buchanan observes that this conventional misreading of the clause is agrammatical because it treats an ambiguous provision as if it were unambiguous, and he points out that even self-styled textualists do not construct comparable provisions of the Constitution so absolutely.

Dean Falvy, a lecturer at the University of Washington School of Law in Seattle, addresses six key questions about Donald Trump’s second impeachment trial. Falvy provides clear and supported answers to frequently asked questions such as whether the Senate can act to remove Trump from the presidency, whether it can hold a trial after his term expires, who should preside, and whether he will lose his presidential perks.

In light of the events of January 6, Illinois law professors Lesley M. Wexler and Colleen Murphy identify some preliminary questions raised by private actors sanctioning other private actors for the latter’s potentially criminal activities at the Capitol. In particular, Professors Wexler and Murphy explain why the event gives rise to transitional justice concerns, and through the transitional justice lens, they assess the advantages and disadvantages of private action in this context.

UF Levin College of Law professor and economist Neil H. Buchanan challenges Senator Josh Hawley’s proffered reason that the Senate should have heard challenges to the counting of electoral votes. Professor Buchanan argues that, no matter how he tries to justify his approach, he was willing to violate the U.S. Constitution to overthrow the duly elected incoming President and to further his own cynical plans to run for President in a future election.

Cornell law professor Sherry F. Colb comments on a movie some have described as one of the best of 2020, The Invisible Man, and describes how the story in the movie offers possibilities for envisioning accountability for domestic violence and other crimes that often receive dismissive treatment under the heading of “he said/she said.” Professor Colb briefly describes the plot of the movie (including spoilers), and explains why the movie is so revelatory.

SMU Dedman School of Law professor Joanna L. Grossman, Duke Law professor Katharine T. Bartlett, and Pitt Law professor Deborah L. Brake reflect on the life and achievements of Professor Deborah Rhode, who recently passed away. Professors Grossman, Bartlett, and Brake describe Professor Rhode’s countless contributions to the legal academy and to the fight for gender equity.

Marci A. Hamilton, a professor at the University of Pennsylvania and one of the country’s leading church-state scholars, describes the steps the Biden administration needs to take to bring the country back from the precipice of becoming a theocracy. Professor Hamilton highlights action items with respect to the Department of Justice, the Religious Freedom Restoration Act (RFRA) and the First Amendment, tax exemptions and accountability, and governmental financial support for organizations engaged in discriminatory practices.

Dean Falvy, a lecturer at the University of Washington School of Law in Seattle, makes the case for impeaching Donald Trump again, after the failed insurrection of January 6. Falvy describes three possible ways to disempower Trump from undermining democracy in our nation and explains why immediate impeachment by the House and removal by the Senate is the most appropriate course of action.