Guest columnist Barry Winograd—an arbitrator and mediator, and lecturer at Berkeley Law—concludes his two-part series of columns on the conflict between President Donald Trump and Stephanie Clifford, the adult film actress known as Stormy Daniels. Winograd argues that both parties would benefit from settling their claims against the other so they can minimize disruption to their personal and professional futures.
Guest columnist Barry Winograd—an arbitrator and mediator, and lecturer at Berkeley Law—analyzes the settlement agreement purportedly between Donald Trump and Stephanie Clifford, an adult film actress also known as Stormy Daniels. In this first of a two-part series of columns, Winograd describes some of the intricacies of the agreement as well as the budding litigation over it, highlighting some of the strengths and weaknesses in the legal arguments of each side.
Cornell University Michael C. Dorf explains the symbolism of President Donald Trump's announcement during his State of the Union address that he would be keeping the detention facility at Guantánamo Bay open. Dorf points out that despite the extraordinarily high cost of keeping the facility open, Republicans support its continued operation simply as repudiation of President Obama, who wanted to close it. Dorf points out that Republicans' opposition to closing Gitmo during the Obama presidency also jibed with the not-so-veiled racism of many Republicans who questioned Obama's citizenship and commitment to the US (disregarding the fact that President Bush actually released more Gitmo detainees than President Obama did).
Illinois Law dean and professor Vikram David Amar and UC Davis Law emeritus professor Alan E. Brownstein describe and analyze the two main legal doctrines that give rise to the action in the blockbuster movie The Post, which chronicles the efforts of journalists at the Washington Post and the New York Times to publish the Pentagon Papers. As Amar and Brownstein explain, the rule against prior restraint and the collateral bar rule animated many of the motives, moves, and countermoves that were documented in the acclaimed film.
John W. Dean, former counsel to President Richard Nixon, comments on former Trump campaign manager Paul Manafort’s civil action attacking Special Counsel Robert Mueller. Dean agrees with many other legal commentators that Manafort’s lawsuit is a publicity stunt and posits that, further, it gives Manafort’s lawyers a way to talk about his prosecution by the special counsel without violating the gag order imposed in the criminal case.
Illinois Law dean and professor Vikram David Amar offers some thoughts on the divisive ongoing conversation about the possibility of the Senate voting to expel Senate candidate Roy Moore from Alabama, if he should win next month’s special election. Amar looks at the history of the practice of Senate expulsion, as well as some of the uncertainties that surround it.
Illinois Law dean and professor Vikram David Amar comments on the increasingly frequent practice of federal district courts issuing injunctions that extend relief beyond the plaintiffs in the case. Amar describes the problems with this practice and calls upon the US Supreme Court to clarify the doctrine of when nationwide (or global) injunctions by federal district courts are permissible and when they are not.
Chapman University Fowler School of Law professor Ronald D. Rotunda describes the historic practice by the US Supreme Court of issuing seriatim opinions, where each justice wrote his own separate opinion, rather than the current practice of issuing an Opinion of the Court. Rotunda describes the role of Chief Justice John Marshall in changing the practice, which resulted in the most powerful Court in the world.
Guest columnist and former US Congressman Brad Miller argues in favor of limits on the president’s power to pardon criminal contempt of court. Miller describes two US Supreme Court precedents on point and explains why circumstances today are radically different from what the Court in those decisions envisioned.
Marci A. Hamilton, a Fox Distinguished Scholar in the Fox Leadership Program at the University of Pennsylvania, extols the late Judge Edward Becker as exemplifying the traits of integrity, intelligence, and goodness—traits Hamilton argues that President Trump lacks. Hamilton uses Judge Becker’s example to illustrate the point that not all those in power seek to abuse it.
John W. Dean, former counsel to President Richard Nixon, comments on attempts by President Trump’s lawyers to defer civil lawsuits against him until after his presidency ends. Dean compares the lawsuit to similar ones filed against former Presidents Bill Clinton and Richard Nixon.
Illinois Law dean and professor Vikram David Amar comments on a motion by President Trump’s personal lawyers seeking temporary dismissal of a civil lawsuit against him for the duration of his time in office. Amar describes two key differences between this lawsuit and one filed against former president Bill Clinton while he was president.
Cornell University law professor Sherry F. Colb comments on a recent decision in which the U.S. Supreme Court held that a juror’s use of racial stereotypes to vote for conviction may be used to invalidate the verdict, despite evidentiary rules that otherwise prohibit the use of juror testimony to challenge a verdict. Colb argues that the Supreme Court should have either extended the Sixth Amendment exception to cover other types of juror misconduct, or repealed the rule that prohibits the use of post-verdict juror testimony to impeach a verdict.
Illinois Law dean and professor Vikram David Amar and UC Davis Law emeritus professor Alan E. Brownstein explain the complexities behind analyzing the motive underlying legislation and executive orders. Specifically, Amar and Brownstein highlight the difficulty in courts’ using perceived motive to strike down President Trump’s executive order regarding entry to the United States.
Cornell University law professor Michael C. Dorf explains the value of the confirmation hearing of Supreme Court nominee Neil Gorsuch, despite the tradition in such hearings of the nominee evading answering questions about the most divisive legal issues of the day. Dorf argues that the Gorsuch hearing provides a unique opportunity for bipartisan repudiation of President Trump’s irresponsible attacks on the judiciary.
Cornell University law professor Michael Dorf argues that in some contexts, consideration of states’ rights is relevant to the interpretation of federal statutes, but in other contexts—including the federal lawsuit over a transgender boy’s access to a boys’ restroom at school—principles of federalism are outweighed by other considerations. Dorf provides three examples of instances where federalism should play a role in the interpretation of federal statutes, and he explains why the transgender bathroom case differs from those instances.
Cornell University law professor Michael C. Dorf considers whether President Trump’s new executive order on immigration, anticipated to be issued this week, will fare better than Executive Order 13769, which temporarily banned nationals of seven predominantly Muslim countries and all refugees from entering the United States. Dorf discusses Trump’s past public statements advocating for a Muslim ban during his presidential campaign and applies the factors courts may use in evaluating whether those statements can be considered evidence of Trump’s motives for his actions as president, should the constitutionality of his executive order be challenged in court again.
Illinois Law dean Vikram David Amar and California civil litigator Michael Schaps consider the strength of San Francisco’s lawsuit against the Trump Administration arising out of its identity as a “sanctuary city.” Amar and Schaps discuss both the ripeness of the claim, a threshold procedural matter, and also the merits of San Francisco’s arguments.
Cornell University law professor Michael C. Dorf discusses the distinctive position taken by Supreme Court nominee Neil Gorsuch with respect to the so-called Chevron doctrine, under which courts defer to reasonable agency interpretations of ambiguous federal statutes. Dorf explains why Judge Gorsuch’s quest to end judicial deference to agencies not only contrasts with Justice Scalia’s position on the issue, but it is also erroneous and based on a misconception of how Chevron works.
John W. Dean, former counsel to President Nixon, converses with author David Dorsen about whether President Trump’s pick for the U.S. Supreme Court, Judge Neil Gorsuch, is going to be ideologically consistent with the late Justice Antonin Scalia, whose seat Gorsuch would fill. Led by Dean’s questions, Dorsen explains that Scalia was not as across-the-board conservative as many thought him to be, and Gorsuch may not be either, at least not on topics such as trial by jury and double jeopardy.