Analysis and Commentary Posted in 2020-10
The Questions I Would Have Asked Judge Amy Coney Barrett Before Voting for Her to Ascend to the United States Supreme Court

Marci A. Hamilton—a professor at the University of Pennsylvania and one of the country’s leading church-state scholars—offers eight questions she would have asked Judge Amy Coney Barrett during her confirmation hearings. Hamilton points out that questioning a person’s religious affiliation is considered taboo because of the false, public mythology in the United States that religion is always good and pure, despite overwhelming evidence that religion, which is run by humans, often perpetuates domestic violence against women and children.

Is the So-Called Mandate Without Any Tax Consequences Unconstitutional? And If So, How Should a Court Remedy That? Part Three in a Series Examining Underexplored Issues in the California v. Texas Affordable Care Act Case

In this third of a series of columns examining underexplored issues in the California v. Texas case challenging the Affordable Care Act (ACA), Illinois law dean Vikram David Amar, Michigan Law dean emeritus Evan Caminker, and Illinois law professor Jason Mazzone consider whether the so-called individual mandate of the ACA, now without any tax consequences, is unconstitutional, as the challengers argue. The authors explain why, in their view, the challengers are incorrect, regardless of whether the word “shall” in the ACA is interpreted as obligatory or not.

Racism, Rage, and Raw Political Power: Revisiting the Motivations of Trump’s Supporters

UF Levin College of Law professor and economist Neil H. Buchanan develops his argument that the only plausible reasons Republicans continue to support President Trump are “bigotry and raw political power.” In this follow-up column, Buchanan explores these explanations a bit further, drawing in part from incensed reader responses to his previous column.

In Gratuitously Attacking Marriage Equality, Clarence Thomas Accidentally Raised an Important Question About the Scope of Religious Liberty

Cornell law professor Michael C. Dorf comments on a statement by Justice Clarence Thomas (joined by Justice Samuel Alito) gratuitously expressing his hostility to the Court’s same-sex marriage decision in Obergefell v. Hodges and his sympathy for Kim Davis, a county clerk in Kentucky who refused to issue marriage licenses to same-sex couples even after the Supreme Court’s decision. Although Justice Thomas characterizes Davis and those like her as people who “refus[e] to alter their religious beliefs in the wake of prevailing orthodoxy,” Dorf points out that no one asked Davis to alter her religious beliefs. Rather, the lawsuit against her contends that she must provide services to the public in accordance with their constitutional rights, whatever her religious beliefs.

“Standing” In Unfamiliar Territory: Part Two in a Series on the California v. Texas Affordable Care Act Case

In this second of a series of columns on the latest prominent challenge to the Affordable Care Act (ACA), Illinois law dean Vikram David Amar, Michigan Law dean emeritus Evan Caminker, and Illinois law professor Jason Mazzone comment on the standing issue presented in California v. Texas. The authors explore the Solicitor General’s creative argument and argue that the argument leaves several hurdles unaddressed. The authors point out that even if the plaintiffs in these cases can overcome the hurdles, the Court should consider that embracing the Solicitor General’s broad new theory would open the door to other, even more aggressive, applications.

“Might as Well Carry a Purse with That Mask, Joe”: COVID-19, Toxic Masculinity, and the Sad State of National Politics

SMU Dedman School of Law professor Joanna L. Grossman and Boston University law professor Linda C. McClain comment on COVID-19, toxic masculinity, and the state of national politics today. Grossman and McClain contrast President Trump’s reckless bravado that endangers the lives of Americans with the empathy of Democratic presidential nominee former Vice President Joe Biden’s in asking people to be patriotic by doing their part by wearing masks to protect other Americans.

Should Department of Justice Lawyers Defy William Barr?

Austin Sarat—Associate Provost, Associate Dean of the Faculty, and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College—comments on an open letter addressed to the 100,000 professionals working in the U.S. Department of Justice and published by Lawyers Defending Democracy. In the letter, more than 600 members of the bar from across the United States call on their DOJ colleagues to refrain from “participating in political misuse of the DOJ in the elction period ahead.” Sarat argues that the letter rightly recognizes that Attorney General Barr’s blatant partisanship endangers the integrity of the DOJ itself and its role in preserving the rule of law.

A Somewhat Optimistic View of the Possible Constitutional Crisis of 2020

UF Levin College of Law professor and economist Neil H. Buchanan reflects on the contributions of the late Justice Ruth Bader Ginsburg to tax law jurisprudence and discusses the potential chaos that faces our country in the upcoming elections. Although he expresses cautious optimism that law and the American public together should prevent a constitutional crisis, Buchanan warns that we should all be frightened by the fact that the election can still be stolen if enough carefully placed Republican partisans are willing to upend our constitutional democracy.

He Said/She Said, Save Our Sons, and the Stories that Stick: Part One of a Two-Part Series of Columns

Cornell law professor Sherry F. Colb comments on the U.S. Department of Education’s recent push toward a higher burden of proof in determinations of sexual harassment or assault under Title IX. In this first part, Colb suggests that men who say “not guilty” in response to a sexual assault accusation are not especially credible and that we accordingly need an explanation for why people find the accuser’s words equally lacking in credibility (and therefore call the dispute a “he said/she said” dilemma for the factfinder).

“Remain Humble and Compassionate—And Have a Plan to Kill Everyone You Meet”

Cornell law professor Joseph Margulies argues that to fix policing, we must change police culture and norms, starting with ending the warrior model of policing. Margulies describes what this model means and explains why it is such a substantial obstacle to productive relationships between the police and the communities they serve.

Here We Go Again: The Supreme Court Considers Whether to Further Narrow the Law of Personal Jurisdiction

Laura Dooley and Rodger D. Citron—both law professors at Touro College, Jacob D. Fuchsberg Law Center—comment on two consolidated cases pending before the U.S. Supreme Court that present questions of the exercise of personal jurisdiction. Dooley and Citron summarize the facts and procedural history of each case, analyze the issues raised by the defendant, and consider how the recent death of Justice Ruth Bader Ginsburg might affect the Court’s decision.

Reflections on the Pending Supreme Court Challenge to the Affordable Care Act in California v. Texas: Part One in a Series

In this first of a series of columns on the latest prominent challenge to the Affordable Care Act (ACA), Illinois law dean Vikram David Amar, Michigan Law dean emeritus Evan Caminker, and Illinois law professor Jason Mazzone examine the stare decisis effects of the Supreme Court’s initial blockbuster decision involving the ACA. The authors demonstrate several, perhaps surprising, ways that the earlier decision should shape how the Court views the present challenge.

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

Samuel Estreicher
Samuel Estreicher

Samuel Estreicher is the Dwight D. Opperman Professor, Director, Center for Labor and Employment... more

Leslie C. Griffin
Leslie C. Griffin

Dr. Leslie C. Griffin is the William S. Boyd Professor of Law at the University of Nevada, Las... 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 Fels Institute of Government 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

Austin Sarat
Austin Sarat

Austin Sarat is Associate Provost, Associate Dean of the Faculty and William Nelson Cromwell... more

Lesley Wexler
Lesley Wexler

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