In this first of a series of columns, Illinois law dean Vikram David Amar and professor Jason Mazzone consider whether Mississippi’s method of electing its governor—requiring a successful candidate to win both a majority of the state house of representatives and a majority of districts—is constitutional. Amar and Mazzone describe some of the important issues the case raises under the Fourteenth and Fifteenth Amendments.
University of Florida Levin College of Law professor and economist Neil H. Buchanan argues that, notwithstanding some commentators’ claims to the contrary, President Trump poses an existential threat to democracy in the United States and removing him from office via impeachment would be less messy and divisive than defeating him at the ballot box in November 2020. Buchanan points out that there is no reason to believe that Trump will accept losing the 2020 election, and there is every reason to fear that the inevitable protests by the majority of Americans whose votes defeated Trump will be met with violence.
Cornell law professor Michael C. Dorf comments on Argentina’s national elections last month, in which the country elected as Vice President Cristina Fernández de Kirchner, who had previously served as President of Argentina from 2007 to 2015. Dorf considers why Kirchner, and indeed anyone, would accept a lower position than what she has previously held. Dorf argues that due to the Peter Principle—which states that workers in a hierarchical organization tend to rise to their level of incompetence—we would do well as a society to abandon the whole concept of a demotion.
SMU Dedman School of Law professor Joanna L. Grossman comments on a decision by the U.S. Court of Appeals for the Fourth Circuit that spreading a false rumor that a woman “slept her way to the top” constitutes sex discrimination. Grossman points out that this case raises yet another example of the many ways in which working women do not compete on an equal playing field.
University of Florida Levin College of Law professor and economist Neil H. Buchanan calls upon Democratic presidential candidates Mayor Pete Buttigieg and Senator Amy Klobuchar to step up and say what they are for, rather than merely what they are against. While Buchanan acknowledges that he does not fully agree with Warren’s Medicare-for-All proposal, but he praises her for being bold enough to put forth a plan, unlike many of her competitors.
Cornell law professor Sherry F. Colb comments on a minority practice by a number of male faculty at law schools and other institutions of announcing an “open door” policy in their offices, purportedly to protect against false accusations of sexual assault or sexual harassment. For purposes of discussion, Colb steps into the role of a hypothetical male faculty member who has such a policy, and then stepping back out of role, she discusses the pros and cons of such policies.
Illinois law dean and professor Vikram David Amar discusses a recent controversy involving the termination of a Wisconsin public school security guard under a zero-tolerance policy on racial epithets. Amar explains why, if the guard had chosen to sue, he likely would have lost in court based on current precedent, and Amar uses the apparent injustice of that outcome to illustrate that public employees often don’t realize how much their speech can be proscribed and prescribed by their government employers.
University of Florida Levin College of Law professor and economist Neil H. Buchanan argues that Democrats should draft broad articles of impeachment. As Buchanan points out, if the Democrats do not lay out the full case against Trump, everything that is left out will have been validated and will become a precedent for future misdeeds by this or any other President.
Cornell law professor Michael C. Dorf explains why Democratic presidential hopeful Pete Buttigieg and his critics are both wrong about the U.S. Supreme Court having become especially political. Dorf points out that since the Court’s 1803 decision in Marbury v. Madison the Court has been highly political, and the true problem lies with the unprecedented polarization of the political parties—not with the Court or the appointments process.
BU Law emerita professor Tamar Frankel discusses the legal and ethical duty of an employer to discuss separation packages with an employees who is quitting. Frankel argues that while the disclosure of relevant information does not involve the law, it involves the employer’s relational culture and affects the employer’s financial situation and future plans with other employees.
John Cannan, a research and instructional services librarian at Drexel University Thomas R. Kline School of Law in Philadelphia, critiques a proposal by Congress to enact the Copyright Small-Claims Enforcement Act (CASE), which would create a copyright small claims court through which rights holders would be able to pursue small copyright infringement claims. Cannan argues that CASE would empower copyright trolls and subject nearly every American to hundreds or thousands of dollars worth of legal expenses. Cannan concludes that rather than being a sword for the creative middle class, CASE seems more like a trap for the unwary.
Cornell law professor Sherry F. Colb why the question whether a state may abolish the insanity defense (presently before the Supreme Court) is similar to the question whether a state should adopt so-called animal welfare laws. Colb argues that both the insanity defense and animal welfare measures provide the public with a sense of moral relief but only if we willfully ignore the reality of how animals and criminal defendants are treated.
Dean Falvy, a lecturer at the University of Washington School of Law in Seattle, discusses the private testimony of U.S. diplomat Bill Taylor regarding President Trump’s interactions with Ukraine. Falvy argues that by meticulously tracking his digital and verbal conservations with other high-level players, Taylor is forcing the implicated officials to engage at a similar level of detail and precluding them from asserting blanket “I do not recall” defenses.
SMU Dedman School of Law professor Joanna L. Grossman comments on the recent revelation by Democratic presidential candidate Elizabeth Warren that she experienced pregnancy discrimination in 1971. Grossman points out that if we as a society are skeptical that pregnancy discrimination was commonplace in 1971, before it became unlawful, then it must be even harder for some to believe that women continue to experience discrimination today.
Marci A. Hamilton, a professor at the University of Pennsylvania, argues that the present allegations against President Trump require representatives and senators to act in the interest of the voters and seek the truth. Hamilton explains that the checks and balances our Constitution’s framers put in place were designed for this very type of situation, and the power to impeach serves a vital role of protecting the people.
Illinois law professor Lesley Wexler comments on a recent report on Faculty Sexual Misconduct issued by a committee at the University of Illinois at Urbana-Champaign that calls for a sweeping overhaul of the University’s approach to sexual harassment. Wexler begins to explore the proposed reforms, describing the major changes and what they aim to address, and she raises some of the questions that the reforms present.
University of Florida Levin College of Law professor and economist Neil H. Buchanan criticizes Democratic pundits and presidential candidates for trying to force Senator Elizabeth Warren to say explicitly whether she intends to raise taxes to pay for her healthcare-for-all plan. Buchanan points out that their insistence on this point essentially does Republicans’ work for them, rather than setting the table for an honest and clear discussion about the financial costs (by any name) of reform.
Cornell law professor Michael C. Dorf explains why U.S. Supreme Court cases—confusingly, Nixon v. United States and United States v. Nixon—together should foreclose any legal arguments that might have supported President Trump’s strategy to fight impeachment. Dorf explains each of the precedents and their bearing on today’s situation.
Illinois law dean and professor Vikram David Amar comments on a recent decision by a federal district court judge blocking implementation of California’s law that would deny ballot access to presidential candidates who have not released their tax returns. Amar explains why the decision is likely to be overturned on appeal, and, if it were to go that far, why there is a good chance even a majority of the current U.S. Supreme Court would also agree the decision was incorrect.
Cornell law professor Sherry F. Colb discusses the rationale behind Federal Rule of Evidence 609, which allows for impeachment of criminal defendants’ testimony with prior convictions, and the seminal cases applying that rule. Colb explains why the jury’s reaction to evidence of prior convictions is both predictable and irrational.