Complicity in Trump’s Bogus Emergency

Cornell law professor Michael C. Dorf comments on President Trump’s declaration of a national emergency after Congress denied him most of the funding he requested for a border wall. Dorf describes the legal framework that allows the president to do so even in the absence of an emergency and points out that combined actions of Congress, the courts, and the People have created this situation.

With Ink Not Yet Dry on the New York Child Victims Act, There Is Already Reason to Be Concerned About the Victims in this Process

Marci A. Hamilton—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—comments on New York’s recent passage of the New York Child Victims Act and the troubling class action lawsuit filed purportedly on behalf of victims on the same day. Hamilton explains why class action lawsuits are inconsistent with child sex abuse victim empowerment and healing, pointing out that such lawsuits are designed for circumstances where the victims have identical or nearly identical harm, which is not the case with child sex abuse.

A Right to Abort a Full-Term “Fetus”?

Cornell law professor Sherry F. Colb comments on an abortion bill that is currently under consideration in Virginia, arguing that the bill would excessively liberalize abortion laws in that state. Colb, who is pro-choice, points out that pro-choice theorists and activists should discern exactly why they believe in the right to terminate an unwanted pregnancy and draw—rather than resist—rational distinctions between a ball of cells and a newborn baby.

Can Law Reviews Take Race and Gender Into Account in Selecting Members (and Also Articles)? Part One in a Series

In this first of a series of columns, Illinois law dean Vikram David Amar and professor Jason Mazzone comment on a legal challenge to the practice by Harvard Law Review of taking into consideration race, gender, and other demographic factors when making membership decisions. Amar and Mazzone highlight some of the hurdles the challenger faces in establishing standing— the right to have the dispute heard in a federal forum.

Justifying External Support for Regime Change in Venezuela

Cornell law professor Michael C. Dorf comments on the recognition by the United States and some other constitutional democracies of Juan Guaidó as Venezuela’s legitimate leader pending new elections. Dorf points out that many countries suffer under incompetent, corrupt, and authoritarian leaders just as Venezuela did under Nicolás Maduro, yet constitutional democracies typically do not rally behind the ouster of those leaders. What makes Maduro’s case different?

Not an Administrative Law Bang but a Whimper

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.

“Implied Consent” and the Fourth Amendment Go To the US Supreme Court

Cornell law professor Sherry F. Colb comments on a case the US Supreme Court recently agreed to review raising the question whether a state statute may constitutionally conduct a blood test on an unconscious driver suspected of drunk driving under a theory of “implied consent.” Colb explains the meaning of “implied consent”—deceivingly named, for there is no actual consent—and predicts that, consistent with the Court’s recent precedent on a similar issue, the state statute should be struck down.

On Anniversary of Roe v. Wade, New York Moves to Shore Up Reproductive Rights

SMU Dedman School of Law professor Joanna L. Grossman comments on New York Governor Andrew Cuomo’s signing into law the Reproductive Health Act, which eliminates disparities between the federal constitutional standard and New York’s statutory standard preserving a woman’s right to terminate a pregnancy. Grossman describes the evolution of abortion rights in the United States and points out that New York’s move to safeguard this right comes at a time when the US Supreme Court might rule to overturn its precedent, and ironically, on the 46th anniversary of the Court’s historic decision in Roe v. Wade.

What the Alabama Confederate Memorial Case Says About Modern Constitutional Doctrine

Illinois law dean and professor Vikram David Amar explains why a recent decision by an Alabama trial court was constitutionally misguided while also illustrating some of the prominent and problematic features of modern First Amendment and federalism doctrines. Amar describes the reasoning behind the ruling, points out the flaws in the analysis, and then offers two takeaway points that we might learn from the opinion.

Mitsubishi Bank’s Museum of Trust in Tokyo

BU Law emerita professor Tamar Frankel explains why the Mitsubishi Bank’s Museum of Trust in Tokyo, Japan, which opened a few years ago, could serve as a model for the United States to reduce the cost of mistrust and breach of trust in this country. Frankel describes the museum and considers how it affects people’s perception of the importance of trust in society.

How Should the Law Address Illicit Motives in the Age of Trump?

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.

#MeToo Goes Global: Introducing the #MeToo Treaty

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.

Cardinal Timothy Dolan Proves Once Again the Church Will Never Reform Itself without the Law and Civil Society Behind It

Marci A. Hamilton—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—comments on an op-ed by New York City’s Archdiocese’s Cardinal Timothy Dolan that Hamilton characterizes as full of “misstatements and ugly implications.” Hamilton disassembles Dolan’s claims and explains why litigation—not mediation, as Dolan claims—is critically essential for the victims of child sex abuse to access the justice they deserve.

Who’s a Good Boy? US Supreme Court Considers Again Whether Dog Sniffs Are Searches

Cornell law professor Sherry F. Colb comments on a case in which the US Supreme Court is considering whether to grant review that presents the question whether police must obtain a search warrant before bringing a trained narcotics dog to sniff at a person’s door for illicit drugs. Colb highlights some of the most interesting arguments on the issue and explains some of the nuances that make a clear answer more elusive in these cases.

Run, Baby, Run: Federal Court (Correctly) Sends Pregnancy Discrimination Case to Trial

SMU Dedman School of Law professor Joanna L. Grossman praises a recent decision by a federal district court allowing a claim of pregnancy discrimination to go to trial and denying the employer’s motion for summary judgment. Grossman describes the factual and legal background of the case and explains how the court used two methods to find that the case should go to trial on the merits.

Frenemies at Last?: How Legislative History Could Save Justice Kavanaugh’s Opinion in Azar v. Allina

John Cannan—a research and instructional services librarian at Drexel University Thomas R. Kline School of Law in Philadelphia—discusses a case that will be argued before the US Supreme Court this week and explains how the legislative history of the law at issue in that case could save the lower court’s decision, which was written by then-Judge Brett Kavanaugh. Cannan points out the irony that Justice Kavanaugh, who is vocally opposed to using legislative history in interpreting the meaning of statutes, may find the greatest support for his decision in this case in the legislative history.

How the Arizona Legislature Has Exceeded its Permissible Role in Filling US Senate Vacancies: Part Two in a Series

In this second of a series of columns, Illinois law dean and professor Vikram David Amar explains how the Arizona legislature has exceeded its power under the Seventeenth Amendment in prescribing how the governor must make a temporary appointment to a vacant US Senate seat. Amar points out that under the most likely reading of the Amendment, state legislatures may empower the governor to make such temporary appointments but may not further participate in the process.

Can the Supreme Court Shelter Rich People from Taxation?

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.

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... more

Neil H. Buchanan
Neil H. Buchanan

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

Sherry F. Colb
Sherry F. Colb

Sherry F. Colb is the C.S. Wong Professor of Law at Cornell University. Colb teaches courses in... more

John Dean
John Dean

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

Michael C. Dorf
Michael C. Dorf

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

Marci A. Hamilton
Marci A. Hamilton

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

Joseph Margulies
Joseph Margulies

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

Anita Ramasastry
Anita Ramasastry

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

Lesley Wexler
Lesley Wexler

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