Guest columnist Dean Falvy, a lecturer at the University of Washington School of Law, assesses how the Constitution is faring after one year of Donald Trump as president of the United States. Falvy evaluates Article I (Congress), Article II (the Executive Branch), Article III (the Judicial Branch), Article IV (federalism), the First Amendment (the press), and the Tenth Amendment (public opinion), giving each one a grade based on how well it is serving its purpose as intended by the framers.
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.
Cornell University law professor Michael C. Dorf argues that regardless of the outcome of President Trump's "Travel Ban 3.0" before the US Supreme Court, the litigation challenging the Travel Ban should be regarded as a victory over Trump's effort to rule by diktat. In support of this argument, Dorf points out that the litigation makes it abundantly clear to the American people that Trump remains every ounce the same vile and petty would-be tyrant that he appeared on the campaign trail.
Illinois Law professor Lesley Wexler comments on the 2018 Golden Globes acceptance speech by Laura Dern calling for restorative justice in the context of the #MeToo and Time's Up movements. Wexler analyzes the possible meaning of this somewhat ambiguous call to action, explaining that it could mean the restoration and reintegration of women who have suffered employment setbacks at the hands of their harassers and assaulters, and pointing out that it could also carry the more traditional notion of restorative justice, which includes the wrongdoers and the community as a whole to engage in "apologies, restitution, and acknowledgments of harm and injury."
Cornell University law professor Joseph Margulies continues his discussion of what he calls "pious stories" that come up in discussions of the criminal justice system, explaining why the media and policy-makers continue to repeat these stories despite their being egregiously incorrect or even dangerously incomplete. Margulies points to three characteristics common to all three of these stories: they reduce complex social processes into over-simplified parables about heroes and villains, they engender racial colonialism, and they are perpetuated by people deeply committed to criminal justice reform.
Professor and resident senior fellow in the Fox Leadership Program at the University of Pennsylvania, Marci A. Hamilton likens the relationship between the #MeToo movement and Donald Trump’s presidency as a David versus Goliath moment. Hamilton describes the contrast in apparent values between the two but finds comfort in the #MeToo movement’s demonstration that there is still identifiable right and wrong that we as a society can see and discuss.
Cornell University law professor Sherry F. Colb considers a question raised, but most likely not to be decided, in a criminal procedure case currently before the US Supreme Court. That case, Collins v. Virginia addresses the automobile exception to the Fourth Amendment warrant requirement, and Colb explores some reasons for eliminating the automobile exception altogether.
SMU Dedman School of Law professor Joanna L. Grossman comments on the most recent high-profile revelation of pay disparity between men and women—that between Mark Wahlberg and Michelle Williams in Ridley Scott’s “All the Money in the World.” Grossman describes the state of pay discrimination laws and while she commends Wahlberg for donating the $1.5 million difference in compensation to the Time’s Up fund, she points out that it was not Wahlberg’s responsibility to rectify this disparity. Grossman calls upon the director Ridley Scott, the agency that represented Williams, and all Hollywood studios and directors to right the wrong of gender pay inequality.
Illinois Law dean and professor Vikram David Amar offers some wisdom he shared during his keynote remarks at the swearing-in ceremony of new lawyers in Springfield, Illinois, describing how lawyers can help build American democracy. Amar comments on the specific duties and responsibilities lawyers swear to uphold, and explains why these duties are critical to the very foundations of our country.
Cornell University law professor Michael C. Dorf comments on the recent announcement by Attorney General Sessions that the Trump Department of Justice was rescinding an Obama administration policy toward state-legal marijuana. Dorf argues that the policy shift breaks promises by then-candidate Trump and then-Senator Sessions, but that objections to the new policy on federalism grounds are largely misguided.
Cornell University law professor Joseph Margulies describes three stories among those who study the criminal justice system that are pejoratively described as “pious.” Margulies explains what it means to be a “pious story,” why such stories exist (because simple narratives are the easiest to translate into policy), and calls upon himself and others on both the Right and Left to abandon “pious” stories and tell whole truths instead.
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.
Marci A. Hamilton, a professor and resident senior fellow in the Fox Leadership Program at the University of Pennsylvania, reflects on the changes to civil and criminal statutes of limitations (SOLs) for child sex abuse across the United States in 2017, and points out how SOLs relate to the #MeToo movement exposing the breadth and pervasiveness of adult sexual assault and harassment. Hamilton praises the progress made over the past year and but calls upon legislators and politicians at all levels to take additional steps to protect children.
Cornell University law professor Sherry F. Colb considers the claim by some people that the increase in accusations and occurrences of rape and other sexual misconduct is attributable to the sexual revolution of the late 1960s and mid-1970s. Colb points out that both rape and sexual misconduct existed well before the sexual revolution, and in fact the legal system until very recently either condoned or made it very difficult to prove rape (and categorically excluded the possibility of marital rape). In contrast, the sexual revolution was about liberating consenting adults to have sex with one another and giving women ownership over their own bodies.
Illinois Law dean and professor Vikram David Amar offers five resolutions he, as a law school dean, hopes to achieve in 2018. These resolutions include taking time to read recent scholarship by his faculty, increasing attendance at campus events, improving communication between faculty and alumni, managing (and reducing, when feasible) bureaucratic burdens, and spending more time with students.
Cornell University law professor Michael C. Dorf considers whether the new tax law, which disproportionally affects “blue” states as compared to “red” states due to changes to the deductions for state and local taxes (SALT), is unconstitutional. Dorf explains some of the possible arguments against the law but ultimately concludes that due to difficulties of proof, courts probably won’t end up ruling that the SALT deductibility cap violates the First Amendment or a core principle of federalism.
Cornell University law professor Joseph Margulies critiques some recent characterizations of Olneyville, a neighborhood on the west side of Providence, Rhode Island. Though the authors he critiques likely write with the best intentions toward Olneyville, Margulies points out that their articles capture three of the most important challenges facing Olneyville and neighborhoods like it across the country: the tendency to look at poverty without seeing the poor, the threat of stereotyping, and the specter of unmanaged and disruptive growth. Having spent much time in Olneyville himself, Margulies observers that the neighborhood has been changing for the better for years now, due to the hard work of the community itself.
Boston University law professor Tamar Frankel describes the history of money and its role in societies and governments, leading up to today’s bitcoin and the issues governments face in attempting to regulate the cryptocurrency. Rather than purport to provide answer to these pressing questions, Frankel seeks instead to open the door to plain English discussions about the duality of money as asset and as money, the legal control of money transfers to prevent violations of the law, and the government’s control of money supply, which affects the economy and financial systems.
Cornell University law professor Sherry F. Colb comments on the recent oral argument in Carpenter v. United States, in which the US Supreme Court will consider whether the Fourth Amendment requires the government to obtain a warrant before demanding that a cell phone service provider reveal location data about a target’s phone for a certain period of time. Colb notes that during oral argument, the Court’s newest justice, Justice Neil Gorsuch, conspicuously avoided using the word “privacy”—a choice that Colb suggests reflects his views on substantive due process and the rights that flow from that constitutional principle, such as abortion and physician assistance in dying.
SMU Dedman School of Law professor Joanna L. Grossman reflects on the wave of stories of sexual harassment and assault that have come to light in 2017. Grossman points out that sexual harassment of women, particularly in the workplace, is not a new phenomenon, but the sheer number of women sharing their stories today has emboldened others to come forward, and may even signal a cultural shift to address this pervasive problem. Grossman argues that true change will only come when institutional actors decide to hold themselves accountable for the way women are treated.