SMU Dedman School of Law professor Joanna L. Grossman comments on a bill under consideration by the Texas legislature that would require appointment of an attorney ad litem to represent an unborn child during a judicial bypass proceeding for an abortion for a pregnant minor. Grossman describes the legal background and explains why the bill is both unconstitutional and unwise.
GW law professor and economist Neil H. Buchanan argues that Democrats’ supposedly unpopular extreme-left policy proposals are actually both moderate and popular. Buchanan points out that polls show that Americans overwhelmingly embrace policies that are mischaracterized as extreme left.
Marci A. Hamliton—professor and resident senior fellow in the Program for Research on Religion at the University of Pennsylvania and founder, CEO, and Academic Director of CHILD USA—describes the similarities and differences between the Vatican’s gathering of bishops to address clergy sex abuse scandals and the federal judge’s ruling in the case of Jeffrey Epstein over sex trafficking scandals. Hamilton points out that decision in the Epstein case is a victory for child sex abuse victims, while the approach of the Catholic Church is already misguided.
Illinois law dean and professor Vikram David Amar comments on a challenge presently facing public (and many private) universities: how best to handle student organizations’ invitations of contentious speakers to speak on campus. Amar points out the legal limitations to some proposed solutions and argues that the law should adapt to a changing world to allow universities more options to craft data-informed and viewpoint-neutral policies.
NYU law professor Samuel Estreicher comments on Kisor v. Wilkie, a case currently before the US Supreme Court that raises the narrow question whether a court should accept an interpretation by the Department of Veterans Affairs of its own technical regulation but also gets at a broader question of judicial deference more generally. Estreicher argues that when agencies interpret their own regulations, courts should afford those interpretations only Skidmore respect, not the higher Chevron-style deference that has come to be commonplace.
BU Law emerita professor Tamar Frankel discusses Ponzi schemes, explaining how they work and why the con artists are able to deceive victims. Frankel also describes what we might learn from studying con artists and their victims.
Cornell law professor Michael C. Dorf comments on a case arising from the Trump administration’s decision to add a citizenship question to the 2020 census questionnaire—a case the US Supreme Court had on its calendar for oral arguments until late last week, when the federal district judge issued an opinion and enjoined the government from including the question. Despite the original issue presented in the case (a technical one about the scope of discovery) being made moot by the district court opinion, Dorf discusses the remaining and greater issue of how to discern and address illicit government motives.
Illinois law professor Lesley Wexler discusses a draft treaty by the International Labor Organization that would address, on a global scale, many of the issues of workplace harassment and sexual assault that the #MeToo movement has brought into the spotlight. Wexler describes how the treaty is grounded in human rights language and would create protections for workers far more expansive than even those recognized under current US law, such as Title VII of the Civil Rights Act of 1964.
GW law professor and economist Neil H. Buchanan explains the benefits of a tax policy that eliminates the “realization requirement” but describes how a hyper-conservative Supreme Court might go to great lengths to strike down such a policy. Buchanan points to an all-but-overturned Supreme Court decision from 1920 and suggests that the conservatives on the Court could ignore the (well deserved) criticism that decision has received in order to strike down progressive tax legislation.
Marci A. Hamilton—the Robert A. Fox Leadership Program Professor of Practice, and Fox Family Pavilion Resident Senior Fellow in the Program for Research on Religion at the University of Pennsylvania—comments on the progress (and lack thereof) of legislation in 2018 affecting child sex abuse victims’ access to justice across the United States. In particular, Hamilton calls upon American bishops to start advocating for, rather than against, the victims of abuse.
Illinois law dean and professor Vikram David Amar discusses the possibility of a federal constitutional convention to propose fundamental revisions to the document. Amar points out that many fundamental legal questions about such a convention remain unanswered and highlights 24 important questions that will need to be considered if a constitutional convention seems imminent.
Marci A. Hamilton, professor and resident senior fellow in the Program for Research on Religion at the University of Pennsylvania, explains the role of Labor Secretary Alexander Acosta in allowing multi-millionaire Jeffrey Epstein to plead guilty to a mere 13-month sentence despite evidence he had abused dozens of girls in his home in Palm Beach. Hamilton argues that Acosta should not be in any position of power, but particularly not one such as Labor Secretary, where the welfare of children or trafficking victims is at stake.
Cornell law professor Sherry F. Colb explains how a better understanding of consent in a police interrogation context can inform our understanding of consent in a sexual context. Colb argues that the solution to both is to educate everyone more effectively about what will and will not successfully make things (the interrogation or the sexual activity) stop.
GW law professor and economist Neil H. Buchanan continues his series of columns considering how much damage the US Supreme Court will inflict after Justice Anthony Kennedy’s retirement. Drawing upon the nation’s experience with a conservative Court during the Lochner era, Buchanan predicts that one of the most consequential results of Republicans’ theft of a Supreme Court seat could be to seriously undermine one or more of Social Security, Medicare, and Medicaid.
Cornell law professor Michael C. Dorf considers the legality of President Donald Trump’s firing of US Attorney General Jeff Sessions and designating Matthew Whitaker as Acting Attorney General. Dorf points out that while the Constitution does not expressly address acting officers, Trump’s actions certainly violate the spirit of the law and the Constitution.
Cornell law professor Joseph Margulies explains the difference between preferences and norms and argues that when social norms and personal preferences conflict, the norm must win. Margulies laments that President Donald Trump misunderstands the elemental distinction between social norms and personal preferences and accepts the norm as legitimate only to the extent it coincides with his personal views.
Marci A. Hamilton, professor and resident senior fellow in the Program for Research on Religion at the University of Pennsylvania, comments on Pope Francis’s call for the Catholic bishops to Rome to discuss the clergy sex abuse crisis. Hamilton points out that a similar meeting was called in 2002 after the Boston Globe’s report on sex abuse in the Boston Archdiocese, yet the changes needed in in the Catholic Church in 2002 are still outstanding today in 2018.
Cornell law professor Sherry F. Colb explains what #BelieveWomen means—that society should stop being presumptively skeptical of women who report sexual misconduct—as well as what the movement does not mean. Colb points out that to believe women does not mean to criminally convict the accused and bypass constitutional safeguards; rather, it means to treat their testimony the same as society and the law treat all other testimony—as presumptively credible. Colb argues that if we make systemic changes to the way we treat women reporting sexual misconduct, starting with initial contact with the police, these changes could translate into more widespread reforms in the courtroom and prosecution of sexual offenders.
GW law professor and economist Neil H. Buchanan describes the immediate consequences that should persuade all voters, but particularly young voters, to vote in this year’s midterm election. Buchanan points out that the short-term consequences of Republican victories this week will mean the likely shutdown the special counsel’s investigation of Trump’s 2016 campaign, continued vilification of the FBI and intelligence services, environmental ruin, increasing economic inequality, and more.
Illinois law dean Vikram David Amar and professor Jason Mazzone continue their commentary on California’s mandate that women be placed on corporate boards. In this third of a series of columns on the topic, Amar and Mazzone consider whether SB 826 violates the Commerce Clause and whether there are constitutional issues with the state’s use of the law merely to make a political statement.