Analysis and Commentary Posted in 2016-02

What Does Ancient Athens Have to Do With University Protesters?

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Chapman University law professor Ronald Rotunda describes how freedom—specifically freedom of speech—was recognized as important as far back as ancient Athens, and how it remains important in the United States today, not only for its inherent value but also in setting an example for the rest of the world to use. Rotunda argues that when the United States restricts speech, other countries will use our example to justify their own repression.

The Grave Risks of the Senate Republicans’ Stated Refusal to Process any Supreme Court Nominee President Obama Sends Them

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Illinois Law dean and professor Vikram David Amar describes some of the risks Senate Republicans will face if they refuse to process any Supreme Court nominee that President Obama sends them, as they have claimed they would. Among these risks, Amar argues, are the possibility that a President Hillary Clinton might appoint Obama to the Supreme Court, that the Democrats could take over the Senate and approve a nominee that a Republican-controlled Senate would not have approved, or even that Justices Breyer and Ginsburg could retire under a Democrat-controlled Senate, giving President Obama three places on the Court to fill with liberal justices.

The Kasich Moderation Burlesque

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George Washington University law professor and economist Neil H. Buchanan continues his series of columns evaluating presidential candidates’ claims of being moderate by looking at Ohio governor John Kasich. Buchanan cautions that although as governor Kasich accepted a Medicaid expansion for Ohio and acknowledges climate change, his actions and words with respect to issues such as abortion, the Affordable Care Act, and the federal budget—among others—reflect extreme conservative views, not moderate ones.

Senate Republicans Offer Laughable Reasons for Refusing to Confirm an Obama Supreme Court Nominee

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Cornell University law professor Michael Dorf explains why Republicans’ claims that President Obama lacks democratic legitimacy in appointing a successor to the late Justice Antonin Scalia. Dorf points out that the reasons offered thus far for refusing to confirm an Obama nominee seem to imply that originalism/formalism can be validated or invalidated by popular approval, even absent a constitutional amendment.

The 2016 RFRA Decline Is Due to the Difficulty of Selling Discrimination and Child Endangerment as Good Policy

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Cardozo Law professor Marci Hamilton explains why the pace of new state Religious Freedom Restoration Acts is slower in 2016 than in previous years. Hamilton points out that to pass these bills, legislators have to not only advocate for discrimination, but also for child endangerment—hard policies to sell.

Enough

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Cornell University law professor Joseph Margulies comments on Donald Trump’s recent declaration that not only does he support torture, but that if he becomes president, he would utilize it more, regardless of whether it “works.” Margulies explores these statements as well as the identity of those who support him and his views.

Nino Scalia, R.I.P.

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Chapman University law professor Ronald Rotunda reflects on the life and accomplishments of his friend the late Justice Antonin Scalia. Rotunda responds to some of the criticism that surfaced after Scalia’s death and recounts some of his most memorable opinions.

In Defense of Justice Scalia on Religious Liberty and Smith

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In honor of the recently deceased Supreme Court Justice Antonin Scalia, Cardozo Law professor Marci Hamilton discusses the Court’s decision in Employment Div. v. Smith, in which Justice Scalia wrote for the majority holding that a law is constitutional under the Free Exercise Clause of the First Amendment if it is facially neutral and generally applied. Hamilton lauds the decision as striking the right balance between liberty and harm, and between religious diversity and religious tyranny.

The Second Circuit Honors the Threshold of the Home in a Fourth Amendment Opinion

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Cornell University law professor Sherry Colb discusses a decision by the U.S. Court of Appeals for the Second Circuit holding that when police are outside the threshold of a home arresting a suspect who is inside the threshold, it is a “home arrest” requiring a warrant. Colb explains why the decision is significant in protecting the home as a space where a person can feel the highest degree of privacy and comfort, free from unreasonable government intrusions.

Course Correction: Young v. United Parcel Service Makes Courts Focus on Right Issues, but Also Reveals Limits of PDA

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Hofstra University law professor Joanna Grossman discusses the effect that the U.S. Supreme Court’s decision in Young v. United Parcel Service has had on cases arising under the Pregnancy Discrimination Act (PDA), as well as the limitations of that decision. Grossman argues that while the decision helped give effect to the intended purpose of the PDA, it did not and could not expand the scope of the statute, which is what is now needed to adequately protect pregnant workers.

When Judicial and Presidential Politics Collide

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Cornell University law professor Joseph Margulies comments on the likely political and legal consequences of the recent passing of Associate Supreme Court Justice Antonin Scalia. Margulies predicts that, due to the ongoing presidential campaign, anyone President Obama nominates to fill the vacancy might become both a partisan tool in presidential politics and also a symbol for the future of America.

Sticking Up (Kind of) for a(n Idaho) State Court Slapped Down by the U.S. Supremes

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Vikram David Amar—dean and law professor at the University of Illinois College of Law—comments on a summary reversal by the U.S. Supreme Court of a decision by the Idaho Supreme Court. While Amar agrees with the Court that the Idaho court erred in reaching its decision, but he argues that the Idaho jurists were not guilty of the particular stupidity or defiance the Supreme Court imputed to them.

Republicans Will Not Seriously Try to Sell Marco Rubio as a Moderate, Will They?

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In this first of a series of columns evaluating presidential candidates’ claims of being moderate, George Washington law professor and economist Neil H. Buchanan argues that Marco Rubio is extremely conservative on both social and economic issues. Buchanan points to Rubio’s position on such social issues as reproductive rights, same-sex marriage, gun control, and economic issues such as tax policy and the federal budget.

What War Is Good For

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Cornell University law professor Michael Dorf reviews Sidney Tarrow’s new book, War, States, and Contention. Dorf considers how Tarrow’s view of the role of contentious politics applies in the current political campaign and examines the relation between national security and domestic social movements.

The Most Promising Reform

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Cornell University law professor Joseph Margulies reflects on the devastating toll solitary confinement can take on those who are already part of a vulnerable demographic, as witnessed during his time as a criminal defense and human rights attorney. The story Margulies describes offers compelling support for criminal justice reform as it currently exists in the United States.

Homespun Wisdom (and Wrongheadedness) in Iowa on the Treatment of Muslims

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Illinois Law dean and law professor Vikram David Amar evaluates three people’s statements regarding America’s treatment of Muslims: President Obama, an Iowa businessman, and a local Muslim cleric (an imam). Amar points out that Donald Trump’s proposal that America ban all Muslims from entering the country is vastly underinclusive (because the great majority of violent acts in this country are perpetrated by non-Muslims), and at the same time very overinclusive (because the overwhelming majority of Muslims who want to enter the United States intend no harm)—two indicators of legal and moral unfairness.

Godly Rhetoric in Presidential Campaigns: Cruz, Rubio, and Reagan

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Cardozo law professor Marci Hamilton comments on the use of religious terms in among the Republican presidential candidates, particularly terms that refer to a specific religio-political world view. Hamilton especially critiques Cruz’s and Rubio’s invocation of Ronald Reagan’s name, pointing out that Reagan tried to bring Americans together in his speeches, even in his references to God.

You Made Your (Marital) Bed, Now Lie in It

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Hofstra University law professor Joanna Grossman comments on a recent decision by an appellate court in New York holding that a harsh but voluntary prenuptial agreement could be enforced as written. Grossman points out that the decision is consistent with a larger trend of courts enforcing prenuptial agreements, even when their terms might seem objectively one-sided or unfair.

Meet our Columnists

Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois College of Law. Immediately prior to taking the position at Illinois, Amar served as the Senior Assoc... more

Neil H. Buchanan

Neil H. Buchanan is an economist and legal scholar and a Professor of Law at The George Washington University. He teaches tax law and tax policy, and he has taught contract law, law and economics, and... more

Sherry F. Colb

Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell University. Colb teaches courses in constitutional criminal procedure, evidence, and animal rights. She has published a... more

John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973. Before becoming White House counsel at age thirty-one, he was the chief minority counsel to the Judiciar... more

Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He has written hundreds of popular essays, dozens of scholarly articles, and four books on constitutional la... more

Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School of Law.  She is an expert in sex discrimination law. Her most recent book,  more

Marci A. Hamilton

Marci A. Hamilton is one of the country’s leading church-state scholars and the Fox Professor of Practice and Fox Family Pavilion Resident Senior Fellow in the Program for Research on Religion in the... more

David S. Kemp

David S. Kemp is an attorney and managing editor at Justia. He received his B.A. in Psychology from Rice University and his J.D. from the University of California, Berkeley, School of Law (Boalt Hall)... more

Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of Record in Rasul v. Bush (2004), involving detentions at the Guantánamo Bay Naval Station, and in more

Anita Ramasastry

Anita Ramasastry is the UW Law Foundation Professor of Law at the University of Washington School of Law in Seattle, where she also directs the graduate program on Sustainable International Developmen... more

Ronald D. Rotunda

Ronald D. Rotunda is the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, at Chapman University, Fowler School of Law. He joined the faculty in 2008. Before that, he was Univ... more