Children’s Rights Softly Emerge in the Midst of the Trump Administration’s Heartless Separation of Children from their Parents at the Border

Marci A. Hamilton, professor and resident senior fellow in the Program for Research on Religion at the University of Pennsylvania, comments on a laudable decision by a federal district court judge in Connecticut that recognizes children as persons with constitutional rights, in the midst of the Trump administration’s separation of children from their parents at the border. Hamilton calls upon the Senate to ratify the Convention for the Rights of the Child, and upon Congress to pass simple legislation that would ban such separations.

Collins v. Virginia: An Innocuous, Fourth Amendment Decision About Curtilage

Cornell law professor Sherry F. Colb comments on the US Supreme Court’s precedents recognizing, yet not clearly defining, “curtilage”—the area near one’s house that is constitutionally protected against warrantless searches by law enforcement. As Colb explains, the Court’s cases involving curtilage, including its recent decision in Collins v. Virginia leave many Fourth Amendment questions unanswered.

ABA Guidance on Judicial Internet Research: Ethics, Due Process, and the Murky Law of Judicial Notice

Justia editor and attorney Sarah Andropoulos comments on an advisory opinion issued last year by the American Bar Association on the propriety of judges conducting internet research on issues raised by cases pending before them. Andropoulos points out that while the advisory opinion does provide guidance as to when such research is permissible, it is rooted in the nebulous concept of judicial notice, and thus leaves many questions unanswered.

Why the Measure to Split California Into Three Could be Blocked by a Court Before It Appears on the Ballot

Illinois Law dean and professor Vikram David Amar describes the federal constitutional obstacles facing Cal3—the proposal to split California into three separate states that has qualified to appear on the November ballot. As Amar explains, the Constitution’s requirement of consent by the “Legislatures” of concerned states may be an insurmountable obstacle for the proposal and could even prevent the proposal from appearing on the ballot at all.

Replacing Justice Kennedy: Why Roe Won’t Be (Formally) Overruled, Same-Sex Marriage Rights Won’t Be Undone, and Affirmative Action Won’t Be Terminated, but Electoral Reform Could Suffer Greatly

Illinois Law dean and professor Vikram David Amar argues that while Justice Anthony Kennedy’s retirement from the US Supreme Court will change the institution, it may not result in a significant shift to the right on some hot-button issues, as many anticipate. Amar explains that the greatest casualty of Justice Kennedy’s retirement might be electoral reform—not reproductive rights, same-sex marriage, or affirmative action.

The Supreme Court and Conservatives’ Right Not to Be Associated in Any Way With Disagreeable Things

GW Law professor and economist Neil H. Buchanan argues that the pro-business, anti-union expressed during oral argument and in the majority opinion in Janus v. AFSCME, written by Justice Samuel Alito and joined by the other conservative justices including Justice Anthony Kennedy, epitomizes both Kennedy’s right-wing fundamentalism and the direction in which the Court would have continued to move even if he had chosen not to retire. Buchanan points out that the trend among the conservative justices is to insulate conservatives—especially Christian Republicans—from having to be in any way connected to anything with which they disagree, such as collective bargaining, sexual liberation, or provision of contraception.

Justice Kennedy’s Civil Procedure Legacy

Touro Law professor Rodger D. Citron comments on a less-discussed aspect of retiring Justice Anthony Kennedy’s jurisprudence: civil procedure. As Citron explains, Justice Kennedy did not author many civil procedure opinions, but the ones he did write were decidedly pro-business—limiting access to courts, capping punitive damages, and restricting personal jurisdiction in a personal injury context.

Can State Supreme Courts Protect Liberal Constitutionalism in the Coming Era of Reactionary SCOTUS Jurisprudence?

Cornell law professor Michael C. Dorf comments on the suggestion that liberals who are distressed about the impending era of reactionary US Supreme Court jurisprudence should focus efforts on change at the level of state supreme courts. Without discouraging such efforts, Dorf explains why this approach faces significant obstacles, and he argues that anyone concerned about the direction of the Court should not restrict their political activities to judicial elections but engage in organized opposition on multiple fronts.

Mexico’s Turn to Transitional Justice

Illinois law professor Lesley Wexler analyzes the strategy of newly elected Mexican president Andrés Manuel López Obrador with respect to that country’s war on drugs and cartels—a strategy known as transitional justice. Wexler defines transitional justice and explains how the core components of transitional justice might serve as a good framework for addressing some of Mexico’s most daunting challenges.

The Best Laid Plans: New York Court Considers Effect of Couple’s Pre-adoption Agreement

SMU Dedman School of Law professor Joanna L. Grossman comments on a recent decision by an appellate court in New York clarifying the rights of two adults who had a pre-adoption agreement but separated before actually adopting a child. Grossman praises the court for using language that would preserve the rights of lesbian co-parents broadly, but finding that the woman in this particular case is not a co-parent.

Is Demonstrated Animus Irrelevant After Trump v. Hawaii?

Chapman University Fowler School of Law professor Celestine McConville considers whether the US Supreme Court’s decision in Trump v. Hawaii establishes a new equal protection rule regarding when the presence of government animus will invalidate government action. McConville points out that under Trump, a stated nondiscriminatory justification will outweigh demonstrated animus, provided the means are “plausibly related” to that justification—a bar so low, she argues, it does a disservice to the integrity of equal protection doctrine.

The European Immigration Deal and Its Aftermath

Illinois law professor Lesley Wexler comments on last week’s EU summit, in which the heads of state sought to address the immigration crisis affecting various countries in the European Union. Wexler describes the highlights of the resulting agreement and while cautiously optimistic, expresses concerns for what some of the longer term implications may be.

A Strong Anti-Choice Signal From the Court

UNLV Boyd School of Law professor Leslie C. Griffin discusses the US Supreme Court’s recent decision in NIFLA v. Becerra, in which a 5–4 majority of the Court struck down a California law requiring crisis pregnancy centers to inform their pregnant patients about abortion options. Griffin explains why the majority’s decision can only be read as a strong anti-choice signal that will only grow stronger with Justice Kennedy being replaced.

Questioning Justice Kennedy’s Replacement: Pay Attention Not Just to Roe v. Wade but Also the Right to Privacy and Contraception

Marci A. Hamilton, professor and resident senior fellow in the Program for Research on Religion at the University of Pennsylvania, explains why the impact of Justice Anthony Kennedy’s retirement from the US Supreme Court touches far more than just the issue of abortion—but the very notion of a constitutional right to privacy. Hamilton argues that if the Federalist Society has its way, the core reasoning of Roe v. Wade will be eviscerated and the constitutional right to privacy—from which the right to access to contraception and the right to engage in consensual sexual relations in private—will be eroded.

Kennedy’s Sadly and Unnecessarily Tainted Legacy

GW law professor and economist Neil H. Buchanan comments on Justice Anthony Kennedy’s announcement that he is retiring from the Supreme Court and the legacy he leaves. Buchanan laments that Justice Kennedy’s last term on the bench can only be described as tragedy, as he joined the conservative 5–4 majority on critical cases that Buchanan predicts will have a lasting harmful effect on individuals across the country and the world.

Carpenter and the Beginning of the End of Privacy

Cornell law professor Sherry F. Colb comments on the US Supreme Court’s recent decision in Carpenter v. United States, in which the Court held that the government must have a search warrant to obtain an individual’s cell-site location information (CSLI). Colb describes the Court’s holding and the dissenting opinions, and considers the Court’s minority (but growing) view that only property, and not privacy, is protected under the US Constitution—particularly when privacy rights encompass the right of a woman to obtain an abortion and the right of same-sex couples to engage in private, consensual sexual acts.

Can the Feds Subject “Sanctuary” Jurisdictions to Liability for Crimes Committed by Private Persons Who Are in the US Unlawfully?

Illinois law dean and professor Vikram David Amar considers whether the federal government can subject so-called sanctuary jurisdictions to liability for crimes committed by private persons who are in the United States unlawfully, as two Republican-backed legislative proposals seek to do. Specifically, Amar discusses whether such liability constitutes unconstitutional commandeering of states under existing Supreme Court precedent.

The Supreme Court Is Still Incoherent About Taxes and Finance, But the Conservatives Seem to Know What They Want

GW law professor and economist Neil H. Buchanan comments on two of last week’s decisions from the US Supreme Court that at least nominally involved tax law issues. Buchanan explains why the decisions suggest that the justices remain confused about taxes and financial issues more generally and suggests that the lower-profile case from last week may end up having the most important and negative effects going forward.

Justice Kennedy’s Replacement and the Religious Test Awaiting

Marci A. Hamilton, professor and resident senior fellow in the Program for Research on Religion at the University of Pennsylvania, comments on this week’s news from the US Supreme Court—its decisions upholding President Trump’s travel ban, striking down a California law affecting so-called crisis pregnancy centers, and the news that Justice Anthony Kennedy will be retiring. Hamilton cautions that the cases portend that, President Trump will, in effect, impose a religious test on candidates for Justice Kennedy’s replacement—a requirement expressly prohibited by the Constitution.

Meet our Columnists

Vikram David Amar
Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois Co... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan is an economist and legal scholar and a Professor of Law at The George Washington U... more

Sherry F. Colb
Sherry F. Colb

Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell University. Colb tea... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973. Befo... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He has w... more

Joanna L. Grossman
Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School of L... more

Marci A. Hamilton
Marci A. Hamilton

MARCI A. HAMILTON is the Robert A. Fox Leadership Program Professor of Practice, and Fox Family Pavi... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of Record... more

Anita Ramasastry
Anita Ramasastry

Anita Ramasastry is the UW Law Foundation Professor of Law at the University of Washington School of... more

Lesley Wexler
Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately prior... more