Analysis and Commentary Posted in 2019-06
The 100-Year Anniversary of the First State Ratification of the Nineteenth Amendment: Reflections on the Breadth of Freedom from Discrimination in the “Right to Vote”

In honor of the 100th anniversary of Illinois’ ratification of the Nineteenth Amendment, Illinois law dean and professor Vikram David Amar reflects on what it means to be free from discrimination in the right to vote. Amar points out the connection between the right against discrimination in voting and the right discrimination in jury service and calls upon us all to consider what full, equal citizenship means.

After Supreme Court Ruling, Are Profane Trademarks Truly “FUCT”?

Cornell law professor Michael C. Dorf comments on a decision the U.S. Supreme Court issued this week invalidating a provision of the Lanham Act that prohibited registration of “immoral” and “scandalous” trademarks. Dorf provides a brief history of the legal protection for profane speech and considers the implications of a more precisely worded statute regulating profanity for trademark registration purposes.

Junk Science, Junk Law: Eugenics and the Struggle Over Abortion Rights

Joanna L. Grossman, SMU Dedman School of Law professor, and Lawrence M. Friedman, a Stanford Law professor, comment on a decision by the U.S. Supreme Court last month upholding a provision of Illinois law that prescribed the disposition of fetal remains. Grossman and Friedman focus their discussion on Justice Clarence Thomas’s concurring opinion and his discussion of eugenics, which they argue is inapt and a distorted telling of history.

Dismantling the Falsest Comparison: Why a Woman’s Right to Choose Has Nothing to Do With Nazism and Jim Crow

Cornell law professor Joseph Margulies addresses comments made in an op-ed by Atlanta District Attorney John Melvin that opponents of restrictive abortion laws are similar to Nazis or supporters of Jim Crow laws. Margulies explains why the comparison is not only intellectually and morally bankrupt, but also shameful, deserving of the most direct condemnation.

The Supreme Court Dramatically Narrows the Establishment Clause in American Legion v. American Humanist Association

Marci A. Hamilton, a professor at the University of Pennsylvania and one of the country’s leading church-state scholars, comments on the decision by the U.S. Supreme Court in American Legion v. American Humanist Association, in which the Court upheld against an Establishment Clause challenge a large cross on public land in Maryland. Hamilton argues that in reaching its conclusion, a majority of the Court ignores the purpose of the Establishment Clause—to create a bulwark against the tyranny that results from the joinder of government and religious power to rule.

Christians Win Again in the Supreme Court

UNLV Boyd School of Law professor Leslie C. Griffin discusses the decision by the U.S. Supreme Court earlier this week upholding the display of a World War I memorial cross on public land. Griffin argues that the majority erroneously and unnecessarily complicated the question asked by the Establishment Clause, effectively forgetting that the United States is not a Christian nation and that the Constitution requires the government not to prefer one religion over any other (or none at all.

Herman Melville’s Billy Budd: Why this Classic Law and Literature Novel Endures and Is Still Relevant Today

In recognition of the bicentennial of Herman Melville’s birth, Touro Law Center professor Rodger Citron discusses the continuing relevance of Melville’s Billy Budd. Citron provides a brief summary of the novel, considers a few conflicting interpretations of it, and explains why it is relevant for legal professionals even today.

Federalism and State Autonomy in Operation: Florida Bans Sanctuary Jurisdictions in the State, in Sharp Contrast to California’s Approach

Illinois law dean and professor Vikram David Amar contrasts Florida’s recent enactment of one of the strictest measures in the country to prohibit state and local entities from becoming “sanctuary” jurisdictions with California’s pro-sanctuary state laws. Amar explains this autonomy of states to enact such different laws with respect to federal laws as a product of the so-called anti-commandeering doctrine the Supreme Court has applied in three major cases over the past quarter century.

What Makes Self-Defense Justifiable?

Cornell law professor Sherry F. Colb discusses the criminal defenses of self-defense and defense of others and considers what role emotions should and do play in society’s assessment of whether a person’s violent conduct is justified and thus not criminally punishable. Colb argues that fear, rather than anger, most clearly motivates legitimate uses of self-defense or defense of others, but the mere fact of the victim’s anger (which might be present in addition to fear) should not necessarily mean the victim is criminally culpable.

You Can’t Have Your Meat and Eat It Too: “Big Ag’s” Conflicting Positions About Regulating New Food Technologies

Jareb Gleckel, a third-year law student at Cornell Law, comments on the legal and regulatory issues that arise from new food technologies such as “cell-based meat”—which is derived from stem cells to create meat that is identical, at the cellular level, to animal flesh, but does not require the raising and slaughtering of animals. Gleckel explains why both the Food and Drug Administration (FDA) and the Department of Agriculture (USDA) have been asked to exercise jurisdiction over this cell-based meat and argues that, given the position of “Big Ag” that the USDA should regulate cell-based meat, cell-based meat companies therefore have the right to call their products “slaughter-free meat,” “cruelty-free meat,” “antibiotic-free meat,” or even simply “meat.”

Elected Dictators? The Limits of What Government Officials Can Do With Their Power

University of Florida Levin College of Law professor Neil H. Buchanan considers whether America, having elected Donald Trump, must consequently accept everything he does as “democracy at work.” Buchanan argues that constitutional processes exist not only to protect democracy not only in word but also in spirit, and that extreme consequences of legal action can still threaten the future of democracy.

The Trouble With Trump’s Tariff Threats—And With a Critique of Them

Cornell law professor Michael C. Dorf explains why President Trump’s threat to escalate tariffs on all Mexican goods if Mexico had not stopped the flow of Central American Migrants erroneously presumes a win-lose situation where none exists. Dorf also explains the fallacy of the criticism that immigration and trade ought to be always kept separate in negotiations.

How Should A Progressive Prosecutor Respond to Injustice Beyond Her Courtroom?

Cornell law professor Joseph Margulies explains why and how a progressive prosecutor should work to correct injustice throughout the criminal justice system. Margulies argues that a prosecutor must not, for example, turn a blind eye to the prisons in her state or pursue convictions for unjust laws.

Use It or Lose It: The Supreme Court Gets a Procedural Point About Title VII Unanimously Right

SMU Dedman School of Law professor Joanna L. Grossman comments on a recent unanimous decision by the U.S. Supreme Court clarifying a procedural point about Title VII and the requirements of employees filing discrimination claims in federal court. As Grossman explains, the Court’s opinion correctly minimizes the importance of a technical requirement of employees and might as a result provide greater protection to employees who suffer from workplace discrimination.

Does the Constitution Require the Insanity Defense?

Cornell law professor Sherry F. Colb discusses a question the U.S. Supreme Court will consider next term—whether the U.S. Constitution prohibits a state’s abolition of the insanity defense. Colb points out the various ways in which our current criminal justice system arbitrarily excuses some sources of criminal conduct but not others, and she argues that because of these inconsistencies already inherent in the system, the insanity defense cannot logically be required.

Woulda Coulda Shoulda: Were, And Are, Mueller’s Hands Really Tied From Saying Whether President Trump Committed Indictable Crimes?

Michigan law professor Evan Caminker considers whether Special Counsel Robert Mueller could have—and whether he can yet—opine on whether President Trump committed a federal crime in obstructing justice. Caminker argues that if Mueller is subpoenaed to testify before Congress, he should say more than he did in his report.

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, an economist and legal scholar, holds the James J. Freeland Eminent Scholar... 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

Lesley Wexler
Lesley Wexler

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