Three Big Constitutional Lessons of 2017 That Are Not Fully Appreciated

Illinois Law dean and professor Vikram David Amar describes three important constitutional takeaway lessons from 2017. First, improper motive is the key to attacking many government actions, but it is a difficult ground on which to succeed. Second, the US Supreme Court seems to take a different position from that of lower courts on a number of issues. Finally, many norms that people assume are enshrined in the Constitution are actually not.

Facebook Messenger Kids—Good for Whom?

University of Washington law professor Anita Ramasastry comments on Facebook’s recently announced messenger app for kids. Ramasastry describes the key features of Facebook’s new program and explores the privacy and safety concerns that arise with this business model. She calls upon policymakers or advocacy groups to weigh in, as well, anticipating that this will not be the only business model aimed at kids in this manner.

Liberty and Equality Sometimes Require Tragic Choices, Just Not in Masterpiece Cakeshop

Cornell University law professor Michael C. Dorf explains why the Masterpiece Cakeshop case before the US Supreme Court—in which the Court will decide whether a baker may refuse to serve a gay couple based on his religious beliefs—does not present a difficult choice between liberty and equality. Rather, Dorf points out, the baker’s free speech claim in this case should be relatively easy to reject because a cake without an articulate message on it does not constitute the “speech” of the person who made it.

Why Government?

Cornell University law professor Joseph Margulies points out that “the market” did not create any of the benefits to which most of us have come to feel entitled to—including workers’ compensation, mortgage interest deductions, veterans’ benefits, non-discrimination laws, and many more. Rather, the federal government created these things, and the government continues to play a critical and beneficial role in everyone’s lives, despite widespread sentiment that “government is bad.” Margulies looks specifically to the Low Income Housing Tax Credit, which is the primary reason affordable housing exists, albeit in lesser numbers than is currently needed, and points out that this and other critical services are at risk in the GOP tax bill.

Cluster Munitions: Policy Reversal and International Law Norms

Illinois Law professor Lesley M. Wexler comments on the Trump administration’s reversal of longstanding policy on cluster munitions. Wexler describes both what changes and what remains the same under the new policy and considers whether, taken in the context of other similar shifts in policy, the Trump administration is implementing its “America-First” approach and discarding prior policies that upheld international law norms.

The Masterpiece Cakeshop Oral Argument and the Fatal Flaw in the Bakers’ Free Speech Argument

Marci A. Hamilton, a professor and resident senior fellow in the Fox Leadership Program at the University of Pennsylvania, reacts to the oral argument in Masterpiece Cakeshop v. Colorado Civil Rights Comm’n, in which the Supreme Court will decide whether a Colorado baker may refuse to serve a same-sex couple on the basis that doing so would violate his religious beliefs. Hamilton argues that lawyer for the baker, as well as the solicitor general arguing in support of the baker’s position in the case, took the nonsensical position that the cake serves as the baker’s speech in the couple’s private ceremony. Hamilton points out that the cake is actually the couple’s expression to each other and to those present at the ceremony, just as any other product is simply a product imbued only with the meaning intended by its purchaser.

Why “Believing Women” Has Been a Challenging Task

Cornell University law professor Sherry F. Colb explains why it is so difficult for society as a whole to believe women’s accounts of sexual assault and harassment. Colb argues that the first step in developing solutions is for society, and particularly men, to admit that many (if not all) of these claims are true, and once that happens, then one has to either say that such behavior is acceptable or unambiguously condemn the behavior. Assuming that one rightfully condemns the behavior, Colb points out that the next step is to investigate the claims and impose whatever penalties are appropriate.

Texas Strikes Out Again: Federal Court Halts Enforcement of Yet Another Unconstitutional Anti-Abortion Law

SMU Dedman School of Law professor Joanna L. Grossman comments on a recent decision by a federal court in Texas permanently enjoining the State of Texas from enforcing an unconstitutional anti-abortion law. Grossman provides a brief background of both Texas and the law at issue and explains why the federal court struck it down. Grossman points out that the clear weight of Supreme Court jurisprudence supports the district court’s reasoning and decision.

Some Tips For Succeeding on Law School Exams

Illinois Law dean and professor Vikram David Amar offers some timely tips for law students during the law school exam season. Noting that there often seems to be a divide between what students know on a given topic and what their exam answers convey to a grader, Amar provides common sense test-taking suggestions to help bridge that gap, as well as insight into what law professors often look for in a successful exam answer.

Liberals Should Readily Condemn Sexual Misconduct by Democratic Men

George Washington law professor and economist Neil H. Buchanan discusses allegations of sexual misconduct aimed at Democratic men in power and the opposing views progressive writers have taken as to whether these men should resign. Buchanan considers arguments for and against resignation, and reasserts his stance that these men should not be allowed to remain in office. Moreover, Buchanan argues, Democrats should be less fixated on defending these men against Republican attacks (especially those who have not been in office for years) than they are on issues that truly matter in current United States politics.

Sorry Lessons

Illinois law professor Lesley Wexler considers the apologies issued by celebrity men recently accused of sexual misconduct and argues that they ultimately fall short of making genuine amends to their victims. Wexler breaks down the components of a sincere apology, discusses the question of compensatory amends, and ultimately concludes that both the United States government and the celebrity men in question have failed to issue apologies of any true substance to those they have wronged. To highlight her point, Wexler compares contemporary examples in which the Canadian government has stepped up to offer proper apologies and provide compensation to victims of its past harmful policies.

Why Washington Reacts More Slowly to Sexual Misconduct Allegations Than Hollywood

Cornell University law professor Michael C. Dorf considers the recent spate of sexual misconduct allegations in the political sphere and entertainment industry, and notes how much less inclined to action and condemnation the former is compared to the latter. Dorf illustrates this point by considering the allegations against Donald Trump and Roy Moore, as well as various well-known Hollywood players, then evaluates several factors that may explain the contrast in reactions. Dorf concludes that the polarized, partisan state of our government, coupled with weak political parties, ultimately leaves Washington far more powerless to purge offending individuals than Hollywood.

The Economists Who Support the Republicans Are as Dishonest as Their Patrons

George Washington law professor and economist Neil H. Buchanan provides political context for the latest Republican-backed tax reform package. He highlights how the authors of an “open letter” to “Senators and Representatives” that recently made the rounds, and which attempted to solicit signatures of other Republican economists, deliberately misused numbers and employed sleight-of-hand wording to declare that corporate tax cuts would stimulate economic growth, lead to more jobs, and increase American wages. Buchanan counters each of the letter’s assertions in turn, illustrates how its stated economics is ultimately faulty, and fixes a critical eye on the economists who so willingly set aside intellectual integrity to appease the well-financed Republican powerbrokers who support these tax cuts.

Listen Up: There Is a Solution to the Sex Abuse and Harassment Epidemic Unfolding Before Your Eyes—And You Will Be Surprised at Who Must Step Up to Succeed

Professor and resident senior fellow in the Fox Leadership Program at the University of Pennsylvania, Marci A. Hamilton addresses the issue of sex abuse and harassment in light of the accusations made against many high-profile men recently. With a focus on the perpetrators, then the victims of their abuse, Hamilton explains why the general public might be (wrongly) disinclined to believe these men are guilty and unpacks why it often takes the victims such a long time to come forward. Hamilton also offers a multi-part solution to this epidemic, laying the moral responsibility of improvement and change squarely on the shoulders of the lawyers and insurance companies that represent these abusive men in various contexts.

A Tax Deduction for Unborn Children: Should Pro-Choice Advocates Have Worried?

Cornell University law professor Sherry F. Colb considers a provision of the proposed statute in the House version of the latest tax reform bill that would have allowed expectant parents to take a tax deduction on college fund investments for their offspring. Colb notes the negative response to this provision among pro-choice advocates as a result of how the provision’s language equates a fetus with a child. While acknowledging the worry among abortion rights proponents that such wording might provide a legal foundation for future attempts to restrict women’s rights to terminate their pregnancies, Colb counters this concern by explaining why it is unlikely that the language in the tax bill would have any effect on the legal status of abortion.

A Dozen (or so) Thoughts on Senate Expulsion (With Special Reference to the Roy Moore Affair)

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.

Right Thing, Wrong Reason: Killing the Republican Tax Plan with Anti-Deficit Arguments Is a Bad Idea

George Washington law professor and economist Neil H. Buchanan discusses politicians' current fixation on the budget deficit and argues that Democrats who take an anti-deficit stance to attack the Republican tax bill are playing right into Republicans’ hands. Buchanan explains why blanket declarations about decreasing the budget deficit as a tax reform fix-all are problematic and cautions Democrats (along with journalists who report on tax reform issues) to be mindful of the arguments they choose when countering Republicans.

Do Trump’s Attacks on CNN Render Unconstitutional the Justice Department’s Effort to Block AT&T’s Acquisition of Time Warner?

Cornell University law professor Michael C. Dorf considers how President Trump’s attacks on CNN affect the Justice Department’s efforts to block AT&T’s proposed purchase of Time Warner (by requiring AT&T to sell off Turner Broadcasting, the parent company of CNN, or DirecTV). As Dorf points out, illicit intent can taint policies that without such intent would pass constitutional muster. Dorf explains why AT&T likely can meet the threshold of making a “credible showing of different treatment of similarly situated persons” to advance allegations of selective prosecution based on free speech.

Trouble in Paradise? The Paradise Papers and the Ethics of Lawful Tax Avoidance

University of Washington law professor Anita Ramasastry comments on the recent release of records known as the Paradise Papers, which reveal the identities of thousands of individuals and corporations using offshore jurisdictions as a tax avoidance strategy. Ramasastry argues that while such actions may in many cases be legal, they are also unethical. She points out that if we focus on the harm of tax avoidance to society, rather than how it is legally defined, then we can see that it contributes to growing inequality and increases tax burdens on resident taxpayers who cannot change their citizenship or move their money.

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 one of the country’s leading church-state scholars and the Fox Professor of Pra... more

David S. Kemp
David S. Kemp

David S. Kemp is an attorney and managing editor at Justia. He received his B.A. in Psychology from... 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

Ronald D. Rotunda
Ronald D. Rotunda

Ronald D. Rotunda is the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, at... more