Articles Posted in Constitutional Law

The War Over Women’s Health: The Supreme Court Considers Validity of California Law Mandating that Anti-Abortion Pregnancy Centers Disclose if They Are Not Licensed

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SMU Dedman School of Law professor Joanna L. Grossman comments on the recent oral argument in NIFLA v. Becerra, in which so-called Crisis Pregnancy Centers challenge California’s Reproductive FACT Act as violating their First Amendment right to free speech by requiring posted information about medical licensure and abortion. Grossman points out that Justices Stephen Breyer and Sonia Sotomayor seemed to believe that if California’s FACT Act violates the First Amendment, then so too would laws in other states requiring that doctors engage in anti-abortion (or abortion-deterrent) speech.

Is the Winner-Take-All Method States Use to Select Presidential Electors Legally Vulnerable?

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In this second of a two-part series of columns, Illinois Law dean and professor Vikram David Amar evaluates the major constitutional and statutory voting rights claims asserted in the federal challenge to Texas’s use of the so-called Winner-Take-All approach to selecting the state’s representatives to the Electoral College. Amar explains why he finds both types of arguments set forth in the complaint largely unpersuasive.

Does the Constitution Permit a State to Abolish Marriage?

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Cornell University law professor Michael C. Dorf considers whether, in protest of the Supreme Court’s recognition of the constitutional right to same-sex marriage, states can “get out of the marriage business” altogether. Dorf explains that abolishing marriage for everyone likely poses no equal protection issues, and points out some interesting and unique characteristics about marriage as a fundamental right.

Lessons From the Gina Haspel Imbroglio

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Cornell University law professor Joseph Margulies explains why we should withhold judgment about President Donald Trump’s nominee to head the CIA, Gina Haspel. Margulies points out that, notwithstanding what we do know about Haspel’s role in facilitating torture at CIA black sites, there is much information we still do not yet know that could inform our assessment of her. He calls upon both the Left and the Right to reduce knee-jerk reactions and instead seek to make careful assessments based on complete information and facts.

R.I.P. Ron Rotunda—A Man Responsible for Watergate’s Most Lasting Positive Impact

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Former White House counsel John W. Dean describes the incredible legacy of fellow Verdict columnist, Professor Ronald D. Rotunda, who passed away unexpectedly earlier this week. Dean explains how he came to know Rotunda—through the Watergate hearings—and Rotunda’s critical role in developing the modern-day ethics rules that govern lawyers (“post-Watergate morality”). A prolific writer, Rotunda is perhaps best known for co-authoring the revered Legal Ethics: The Lawyer’s Deskbook on Professional Responsibility, as well as a highly regarded treatise on constitutional law.

2020 Presidential Election Legal Maneuvering: Prominent Lawyers and Law Professors File Lawsuit Challenging Winner-Take-All Method Used by Texas (and Most Other States) to Pick Presidential Electors

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Illinois Law dean and professor Vikram David Amar comments on a lawsuit recently filed in Texas challenging the winner-take-all method by which Texas (and other states) administer presidential elections. Amar explains the benefits and drawbacks of the method and why the lawsuit is unlikely to elicit changes in Texas or elsewhere.

Supreme Court Divides Over What a Law Is

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Cornell University law professor Michael C. Dorf comments on a recent sharply divided decision by the US Supreme Court in Patchak v. Zinke, in which Court considered whether a particular piece of legislation actually constitutes a law. Dorf explains why the issue was so difficult and points out some of the flaws in reasoning by both the plurality and the dissent.

Maybe He’s Just a Bum

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Cornell University law professor Joseph Margulies considers the contention that President Trump's frequent tweets criticizing the ongoing investigation by Special Counsel Mueller and others are an assault on the "rule of law." Margulies notes that the prevailing view on this rather nebulous concept seems to be that the law must be allowed to operate without criticism from anyone it targets. Not only is this interpretation overly literal and simplistic, Margulies argues, President Trump’s criticism also does not amount to such an assault. The president’s attempts to interfere with the ongoing investigation, his order for Special Counsel Mueller to be fired, and other actions, on the other hand, come far closer to constituting an (attempted) assault on the rule of law.

Take a Flying Leap: The Second Circuit Holds That Skydiving Instructor Can Sue for Sexual Orientation Discrimination Under Title VII

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SMU Dedman School of Law professor Joanna Grossman comments on a decision by the US Court of Appeals for the Second Circuit, sitting en banc, holding that sexual orientation discrimination is an actionable form of sex discrimination under Title VII of the Civil Rights Act of 1964. Grossman explains the significance of the holding and describes the circuitous route federal courts have taken to finally arrive at that common-sense conclusion.

Pushback by Legislators Against Judges Illustrates the Overriding Importance of Legislative Elections

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Illinois Law dean and professor Vikram David Amar comments on the phenomenon by legislators on judges for alleged "activism." Amar argues that when the attacks on judicial independence move from seeking to limit jurisdiction or undo particular rulings to attempting to remove jurists themselves, although such attacks may not "seem" right, they are (perhaps oddly) legal. He points out that state constitutions operate not just in the larger context of morality and justice, but also in the larger context of the US Constitution. Ultimately, Amar explains, the most important decisions are made not by judges or even legislators, but by voters, when they elect people to the political branches.

Did Trump Inadvertently Make Banning Dreamers Unconstitutional?

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George Washington law professor and economist Neil H. Buchanan comments on the apparent conflict between President Trump's declaration that the Deferred Action for Childhood Arrivals (DACA) program is unconstitutional and his decision to delay ending it. Buchanan considers whether the inconsistent positions with respect to the program actually affect the constitutional options available to him.

Mass Shootings and the Supreme Court

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Cornell University law professor Michael C. Dorf describes the underappreciated role of the US Supreme Court in shaping public opinion and discussion of gun regulations. Specifically, Dorf explains that the Court's seminal decisions in District of Columbia v. Heller and McDonald v. City of Chicago have symbolic importance beyond their literal holdings, giving gun rights proponents strong rhetoric, though not strong legal basis, for an absolutist position.

Do Defendants Have the Right to Make Bad Decisions?

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Cornell University law professor Sherry F. Colb comments on the case before the US Supreme Court, McCoy v. Louisiana, in which the Court will decide whether a criminal defendant has a Sixth Amendment right to stop his attorney from announcing to a jury that his client killed the victims for whose murder he is standing trial. Colb considers the argument that the lawyer's behavior constituted deficient performance counsel and argues that in that case, the defendant's conviction should be reversed and remanded for a new trial.

Why the Supreme Court Was Right to Stay out of the Pennsylvania Supreme Court Districting Case, and Why State Courts Have Important Roles in this Arena

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Illinois Law dean and professor Vikram David Amar explains why the US Supreme Court was right to leave undisturbed the recent congressional redistricting ruling by the Pennsylvania Supreme Court. Amar describes the important role (and limitations) of state courts and state legislative bodies in our federal system.

What Miranda Can Teach Us About Sexual Consent

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Cornell University law professor Sherry F. Colb compares the requirement that police officers advise suspects in custody of their Miranda rights with the proposal that we as a society adopt a "Yes means yes" requirement for sexual consent. Colb describes how many of the fears about Miranda never actually came to fruition and points out how both the strengths and weaknesses of Miranda can help us to figure out how best to design the rules defining sexual assault.

Lawyers and Judges Crossing the Bar in 2017

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Chapman University, Fowler School of Law, professor Ronald D. Rotunda commemorates some of the notable lawyers who died in 2017, including John Nolan, Jr., Michel, Aurillac, Willie, Stevenson Glanton, Gustavo Valdés, Hersh Wolch, the honorable Thomas Griesa, and others. Rotunda also notes one lawyer who had a near-death experience, Nikolai Gorokhov, a Russian lawyer who found key evidence of a $230 million corruption scandal involving high-ranking state officials.

The Constitution Under Trump: A Year-One Report Card

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Guest columnist Dean Falvy, a lecturer at the University of Washington School of Law, assesses how the Constitution is faring after one year of Donald Trump as president of the United States. Falvy evaluates Article I (Congress), Article II (the Executive Branch), Article III (the Judicial Branch), Article IV (federalism), the First Amendment (the press), and the Tenth Amendment (public opinion), giving each one a grade based on how well it is serving its purpose as intended by the framers.

The Constitutional Issues Driving the Events in the Hit Movie, The Post

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Illinois Law dean and professor Vikram David Amar and UC Davis Law emeritus professor Alan E. Brownstein describe and analyze the two main legal doctrines that give rise to the action in the blockbuster movie The Post, which chronicles the efforts of journalists at the Washington Post and the New York Times to publish the Pentagon Papers. As Amar and Brownstein explain, the rule against prior restraint and the collateral bar rule animated many of the motives, moves, and countermoves that were documented in the acclaimed film.

Travel Ban 3.0 Heads to the Supreme Court: Win or Lose the Battle, the Resistance is Winning the War

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Cornell University law professor Michael C. Dorf argues that regardless of the outcome of President Trump's "Travel Ban 3.0" before the US Supreme Court, the litigation challenging the Travel Ban should be regarded as a victory over Trump's effort to rule by diktat. In support of this argument, Dorf points out that the litigation makes it abundantly clear to the American people that Trump remains every ounce the same vile and petty would-be tyrant that he appeared on the campaign trail.

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 on the Urbana-Champaign campus. Immediately prior to taking the position at Illinois i... 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 six books on constitutional law... 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

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, Dale E. Fowler School of Law. Before that, he was University Profe... more

Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately prior to taking the position at Illinois, Wexler was a Professor of Law at Florida State University, whose... more