Analysis and Commentary Posted in 2021-06
Challengers to the Affordable Care Act Lose their Third Supreme Court Case: Will They Bring a Fourth?

In light of the U.S. Supreme Court’s decision last week rejecting a third legal challenge to the Affordable Care Act, Cornell Law professor Michael C. Dorf considers whether challengers could bring (and succeed on) a fourth. Professor Dorf explains why subsequent challenges are unlikely to succeed, pointing out that a nonexistent obligation (as the so-called individual mandate now is) cannot be unconstitutional.

Coping with Constitutional Ignorance and Alienation

Austin Sarat—Associate Provost and Associate Dean of the Faculty and Professor of Jurisprudence & Political Science at Amherst College—explains why ignorance of the Constitution is more consequential now than ever before, particularly coupled with increasing numbers of Americans who are indifferent or hostile toward democratic norms. Professor Sarat calls upon our leaders to take care to explain why our constitutional democracy is worth fighting for and to take up that fight every day.

Evaluating the Republican Federal Court Challenge to Illinois’s Recently Adopted Redistricting Plan

In this first of a series of columns, Illinois Law dean Vikram David Amar and professor Jason Mazzone describe a lawsuit in which Republicans are challenging Illinois’s recently adopted redistricting plan. Dean Amar and Professor Mazzone identify several obstacles the lawsuit may face, which, in their estimation, make it unlikely to succeed.

Can Philly and LGBTQs Still Win?

UNLV Boyd School of Law professor Leslie C. Griffin comments on the Supreme Court’s unanimous decision in Fulton v. City of Philadelphia, in which the Court held that Philadelphia’s refusal to contract with Catholic Social Services for the provision of foster care services unless CSS agreed to certify same-sex couples as foster parents violated the Free Exercise Clause of the First Amendment. Professor Griffin joins numerous Catholic leaders in urging Catholic believers—a majority of whom support allowing LGBTQ couples to adopt children, contrary to CSS’s position in this case—to tell their leaders to support all families, including gay families.

Hamas, Not Israel, Violated International Humanitarian Law

NYU Law professor Samuel Estreicher and Hofstra Law professor Julian G. Ku argue that, with regard to recent armed hostilities in the Gaza Strip, Israel’s use of force likely conformed to applicable international laws of war and was legally justified, whereas Hamas’s actions repeatedly violated the core, bedrock principle that civilians cannot be targeted. Professors Estreicher and Ku point out that the presently known facts support the conclusion that Israel complied with customary international law, codified in the 1949 Geneva Conventions and their subsequent protocols: use of force is limited to (1) situations of military necessity; (2) where the use of force makes a distinction between combatants and non-combatants; and (3) where the use of force is proportionate to the concrete military objective sought to be achieved.

Should Vegans “Force” Their Children to Be Vegan?

Cornell Law professor Sherry F. Colb comments on a recent interview in which actor Joaquin Phoenix, who is vegan, said that he would not “force” his nine-month-old son River to be vegan, though he hoped he would be. Professor Colb explores why the question and his answer have provoked strong responses among vegan activists and offers an alternative understanding of his statement that supports, rather than undermines, veganism.

Naomi Osaka, Disability Accommodations, and Platonic Essentialism

Cornell Law professor Michael C. Dorf considers how the recent treatment of tennis player Naomi Osaka by the professional tennis establishment highlights key aspects of disability law. Professor Dorf argues that while reasonable people can disagree in many cases about what constitutes the “essence” of a sport for purposes of the Americans with Disabilities Act (ADA), no one can plausibly argue that speaking to reporters at a press conference is in any way essential to playing tennis.

California Gun Decision Opens Another Front in the Culture Wars

Austin Sarat—Associate Provost and Associate Dean of the Faculty and Professor of Jurisprudence & Political Science at Amherst College—comments on a recent decision by a federal district judge in San Diego striking down California’s statewide ban on assault weapons. Professor Sarat observes that regardless of the outcome of the appeals in this case, the country will remain deeply divided about things like COVID-19 restrictions and gun ownership while our political leaders and the judges they appoint continue to repeat the underlying antipathies animating these divisions.

Mrs. Billie B. McClure

UNLV Boyd School of Law professor Leslie C. Griffin reflects on one of the earliest litigated ministerial exception cases, in which Billie Marie Barrett McClure sued the Salvation Army in 1971 for providing men with superior housing benefits as compared to women. Professor Griffin describes how the language of the petition for certiorari in that case (which was denied) raised some of the very issues that the Court did not fully consider until Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, which it decided in 2012.

Series of Recent Statements from Rutgers University Illustrates the Complexity of Institutional Speech in Higher Education

Using recent statements from Rutgers University as an example, Illinois Law dean and professor Vikram David Amar describes certain cautionary factors that high-level university administrators should bear in mind before engaging in institutional speech. Dean Amar explains the complexity of institutional speech in higher education and suggests that even well-intentioned speech can lead to unexpected criticism and responses.

The U.S. Supreme Court Takes a Step toward Defunding the Police

Cornell Law professor Sherry F. Colb comments on the U.S. Supreme Court’s recent decision in Caniglia v. Strom, holding that police may not enter a private home to perform a “community caretaking” function without having a search warrant. Professor Colb suggests that by recognizing limits on the authority of law enforcement officers to enter a home without a warrant in these circumstances, the Court may be implicitly adopting the message of “defunding the police” by reallocating a non-police function to better-suited responders, such as social workers or mental health experts.

Justice Kagan’s Unusual and Dubious Approach to “Reliance” Interests Relating to Stare Decisis

Illinois Law dean and professor Vikram David Amar critiques Supreme Court Justice Elena Kagan’s recent use of stare decisis doctrine and reliance interest in her dissenting opinion last term in Ramos v. Louisiana, and again this term in Edwards v. Vannoy. Dean Amar describes the reliance interest theory and explains why Justice Kagan’s reasoning is unusual and dubious.

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