In this second of a two-part series of columns, University of Florida Levin College of Law professor and economist Neil H. Buchanan argues that Americans do not have to—and should not—support Trump simply because he claims (erroneously) to have revitalized the economy. Buchanan argues that for a voter to cast a vote purely on account of a perceived improved economy would require her to devalue every other issue—effectively selling the country’s soul.
Cornell law professor Sherry F. Colb comments on a decision the U.S. Supreme Court issued toward the end of the last term, in which a majority of the Court ruled that as long as police have probable cause for an arrest, it does not matter if their actual motivation for arresting someone violates the person’s First Amendment rights. Colb considers whether such pretextual, speech-based arrests are a problem, how they differ from other pretextual arrests, and how the ruling in this case resembles the law of a seemingly different area—post-conviction incarceration for convicted criminals.
Marci A. Hamilton, professor at the University of Pennsylvania and CEO of CHILD USA, calls for an end to legislative exemptions to mandatory childhood vaccinations, except those that are absolutely necessary. Hamilton explains why these exemptions undermine the public good and endanger children.
BU Law emerita professor Tamar Frankel dissects a manipulative email message purporting to offer a once-in-a-lifetime investment opportunity. Frankel explains why the message is effective at deceiving many recipients and cautions investors to be wary of similar advertisements.
In this first of a two-part series of columns, University of Florida Levin College of Law professor and economist Neil H. Buchanan responds to the claim that President Trump is helping the U.S. economy. Buchanan argues that beneath the “somewhat good” aggregate numbers, most people in this country are suffering genuine damage, including not having health care insurance and being perpetually on the verge of financial ruin.
Cornell law professor Michael C. Dorf offers some advice to new law students, highlighting the importance of being able to distinguish among different types of legal questions—easy questions, complicated questions, and indeterminate questions. Dorf explains what he means by each type of question and concludes with a caveat and a warning.
Guest columnist Austin Sarat—Associate Provost, Associate Dean of the Faculty and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College—expresses concern that Democrats are joining President Trump in undermining the public’s trust in the judiciary. Sarat specifically discusses an amicus brief filed with the U.S. Supreme Court by five Democratic senators in which the senators criticize the bias and partisanship of the Court’s conservative justices.
NYU law professor Samuel Estreicher comments on a recent decision by the U.S. Court of Appeals for the Fifth Circuit, in which that court enjoined the Equal Employment Opportunity Commission (EEOC) from publishing its guidance on the applicability of Title VII’s disparate impact analysis to employers’ use of criminal records in hiring decisions. Estreicher explains why the federal appeals court was incorrect in holding that the EEOC violated the notice-and-comment procedures for rulemaking under the Administrative Procedure Act.
Cornell law professor Sherry F. Colb cautions against using a disgust reaction alone to justify legislation—particularly legislation involving criminal penalties. Colb points out that disgust can sometimes help us determine that something bad is in fact going on, but we should not to allow disgust to power our moral choices without interrogation.
Illinois law dean and professor Vikram David Amar comments on the Trump administration’s recent legal challenge to California’s law that denies ballot access to presidential candidates who have chosen not to release their tax returns. Without opining as to whether that challenge is likely to succeed or whether it is a good idea for states to enact such laws, Amar explains why, as a normative matter, the arguments in favor of striking down the law are misplaced, or at the very least, overly simplistic.
Illinois Law professors Lesley Wexler and Jennifer Robbennolt respond to a recent op-ed by Professor Cass Sunstein, in which Sunstein suggests that an apology is a risky strategy for a public figure seeking election or re-election. Wexler and Robbennolt point out three troubling aspects of Sunstein’s op-ed and argue that rather than abstain from giving apologies altogether, perhaps public figures should study apologies and learn how to give—and live—a good one.
University of Florida Levin College of Law professor and economist Neil H. Buchanan cautions liberals, particularly the Democratic presidential candidates, not to treat Donald Trump as unbeatable—as though he were some sort of undefeatable science-fiction villain. Buchanan argues that while liberals should not make the same mistake they made in 2016 of being overconfident, they should also not overstate his ability to win, lest they make that perspective a self-fulfilling prophecy.
Cornell law professor Michael C. Dorf offers some thoughts on a comment by Golden State Warriors head coach Steve Kerr that moves by NBA stars like Kawhi Leonard and Anthony Davis are “bad for the league.” Dorf explains that while the concept—and legal acceptability—of efficient breach in contract law demonstrate that the law does not impose an obligation to carry out one’s end of a bargain, one could understand Kerr’s statement more accurately to mean that because the legal remedies for enforcing sports contracts are inadequate, the NBA and its fans must rely on the consciences of individual players to honor the obligation of good faith.
Marci A. Hamilton, professor at the University of Pennsylvania and CEO of CHILD USA, describes the statute of limitations reform in New York that will give victims of child sex abuse a window of one year to file civil lawsuits against their abusers. Hamilton explains why this is an important—but not nearly sufficient—victory for child sex abuse victims and describes the three major changes we as a society need to implement to meaningfully address the scourge of child sex abuse.
In this second of a series of columns, Illinois law professors Lesley Wexler, Jennifer Robbennolt, and Jennie Pahre continue their discussion of the legal mechanism of cy pres—by which a court decides a remedy based on how closely it serves the intended purpose (originally from the law of trusts). The authors draw upon the plot and characters of the television show Fleabag to illustrate how restorative justice might help re-center the #MeToo debate away from its seemingly sole punitive focus and more towards the twin purposes of victim restoration and deterrence.
In tribute to Justice Stephen Breyer’s 25 years of service as a U.S. Supreme Court justice, Illinois law dean and professor Vikram David Amar discusses his favorite Breyer majority opinion, dissent, and concurrence. Amar describes Justice Breyer’s opinion in each case and explains why it is notable, and he considers what we might expect from the justice in the coming years.
Cornell law professor Sherry F. Colb considers when the void-for-vagueness doctrine, which has a due process component, does and does not make sense. Colb argues that differences in the length of a criminal sentence have little or no deterrence effect, so imposing long sentences as an attempt to deter crimes is a waste of resources.
Marci A. Hamilton—a professor at the University of Pennsylvania and one of the country’s leading church-state scholars—discusses how the U.S. Supreme Court’s majority opinion in American Legion v. American Humanist Association rejects without giving proper respect to the “endorsement test” that Justice Sandra Day O’Connor first championed as a way of maintaining separation between church and state. Hamilton argues that the endorsement test was the right test at the right time in history and that the majority in American Legion attempted to erase Justice O’Connor’s contribution to the Court’s Establishment Clause doctrine.
BU Law emerita professor Tamar Frankel offers some suggestions to investors about how to avoid being scammed by sophisticated con artists. Frankel points out that even sophisticated investors sometimes fall victim to complex and enticing schemes and dissects a few examples of advertisements for such schemes to illustrate her points.
Guest columnist and UC Hastings adjunct professor Samuel R. Miller considers whether Amazon is violating antitrust laws if it is (as is alleged) misusing data it obtains from third-party transactions. Miller explains two potential theories of antitrust liability—the “essential facilities” doctrine and the “monopoly leveraging” theory—and discusses the extent to which Amazon might be liable under each theory.