Articles Posted in Constitutional Law

Cornell law professor Sherry F. Colb proposes the psychological effects of the “silent treatment” as a possible reason that arrested individuals who understand their Miranda rights nevertheless confess to the police. Rather than seeking to dispute or displace other explanations of the phenomenon, Colb suggests that when police leave a suspect alone in his cell, he may experience their exit as the silent treatment and confess as an attempt to end it.

Joanna L. Grossman, law professor at SMU Dedman School of Law, reviews how disgraced Hollywood producer Harvey Weinstein started the #MeToo movement. Grossman details the origins of the #MeToo movement, particularly Weinstein’s role, and describes how Weinstein’s despicable behavior helped to illuminate and begin to address sexual misconduct not only by individuals, but throughout entire industries.

Illinois law dean Vikram David Amar and professor Jason Mazzone evaluate the suggestion made by some that the votes of senators on President Trump’s impeachment can and should be private. Amar and Mazzone argue that while the text of the Constitution alone does not foreclose secrecy, structural, prudential, and logistical considerations strongly disfavor a secret vote on the matter.

NYU law professor Samuel Estreicher and 3L Christopher S. Owens discuss the unique situation of the impeachment of a U.S. President for conduct not alleged to be a crime. Looking to both text and history, Estreicher and Owens argue that commission of a particular, defined crime should be necessary for presidential impeachment for the preservation of the legitimacy and original purpose of that political device, particularly in polarized times such as these.

Illinois law dean and professor Vikram David Amar considers whether a President who has been impeached and acquitted may, if reelected, be retried by a subsequent Senate. Amar acknowledges that it is unclear whether the Fifth and Sixth Amendments’ criminal procedural protections apply to impeachment proceedings, but he offers two key reasons that re-litigation of impeachment allegations after presidential reelection would be improper.

In this third of a series of columns on a legal challenge to Mississippi’s method of selecting governors, Illinois law dean Vikram David Amar and professor Jason Mazzone discuss the merits of the challenge, with a particular focus on the plaintiffs’ contention that the method violates the one-person, one-vote principle enshrined in the Equal Protection Clause of the Fourteenth Amendment. Amar and Mazzone discuss the relevant precedents and argue that based on those precedents, the challenge has solid legal ground on which to proceed.

Cornell law professor Michael C. Dorf comments on a case the U.S. Supreme Court recently agreed to review that presents the question whether a provision of the Delaware Constitution that requires the state’s judiciary be nearly equally balanced between Democrats and Republicans is constitutional. Dorf argues in favor of the provision, explaining that the provision takes into consideration partisan affiliation as means of limiting the role of politics in judicial appointments and judging.

Cornell law 3L Jareb Gleckel and professor Sherry F. Colb discuss, in point-counterpoint style, one aspect of the legal issue presented in Altitude Express v. Zarda—in which the U.S. Supreme Court will decide whether Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against their employees based on sexual orientation. Gleckel argues that sexual orientation discrimination does not qualify as sex discrimination under the text of Title VII and describes a hypothetical example in support of his argument. In response, Colb first addresses Gleckel’s formalistic argument and then contends, even assuming Gleckel’s premise to be true, that because the policy at issue in Zarda discriminates between men and women both formally and in a manner that inflicts a gender-relevant injury, it violates the text of Title VII.

In this second of a series of columns, Illinois law dean Vikram David Amar and professor Jason Mazzone continue their discussion of a federal lawsuit challenging Mississippi’s scheme for electing governors. Amar and Mazzone examine a few important procedural and jurisdictional issues the lawsuit presents, specifically, why the plaintiffs have standing to sue in federal court and what remedies a federal court might provide if it agrees with the plaintiffs on the merits.

Cornell law professor Michael C. Dorf comments on a lawsuit in which New York State and other plaintiffs are suing the federal government over an immigration policy of arresting undocumented immigrants when they appear in state court on unrelated matters. Dorf explains why the federal judge hearing the case should reject the government’s motion to dismiss the lawsuit.

SMU Dedman School of Law professor Joanna L. Grossman discusses a recent decision by a federal district court in Louisiana correctly applying the U.S. Supreme Court’s decision in Young v. United Parcel Service. Grossman describes the facts of that case and explains how Young affected the outcome; she argues that many cases decided before Young should come out differently now, but only if courts carefully apply the new standard to the facts before them.

In this first of a series of columns, Illinois law dean Vikram David Amar and professor Jason Mazzone consider whether Mississippi’s method of electing its governor—requiring a successful candidate to win both a majority of the state house of representatives and a majority of districts—is constitutional. Amar and Mazzone describe some of the important issues the case raises under the Fourteenth and Fifteenth Amendments.

Cornell law professor Michael C. Dorf comments on Argentina’s national elections last month, in which the country elected as Vice President Cristina Fernández de Kirchner, who had previously served as President of Argentina from 2007 to 2015. Dorf considers why Kirchner, and indeed anyone, would accept a lower position than what she has previously held. Dorf argues that due to the Peter Principle—which states that workers in a hierarchical organization tend to rise to their level of incompetence—we would do well as a society to abandon the whole concept of a demotion.

SMU Dedman School of Law professor Joanna L. Grossman comments on a decision by the U.S. Court of Appeals for the Fourth Circuit that spreading a false rumor that a woman “slept her way to the top” constitutes sex discrimination. Grossman points out that this case raises yet another example of the many ways in which working women do not compete on an equal playing field.

Illinois law dean and professor Vikram David Amar discusses a recent controversy involving the termination of a Wisconsin public school security guard under a zero-tolerance policy on racial epithets. Amar explains why, if the guard had chosen to sue, he likely would have lost in court based on current precedent, and Amar uses the apparent injustice of that outcome to illustrate that public employees often don’t realize how much their speech can be proscribed and prescribed by their government employers.

Cornell law professor Sherry F. Colb why the question whether a state may abolish the insanity defense (presently before the Supreme Court) is similar to the question whether a state should adopt so-called animal welfare laws. Colb argues that both the insanity defense and animal welfare measures provide the public with a sense of moral relief but only if we willfully ignore the reality of how animals and criminal defendants are treated.

SMU Dedman School of Law professor Joanna L. Grossman comments on the recent revelation by Democratic presidential candidate Elizabeth Warren that she experienced pregnancy discrimination in 1971. Grossman points out that if we as a society are skeptical that pregnancy discrimination was commonplace in 1971, before it became unlawful, then it must be even harder for some to believe that women continue to experience discrimination today.

Marci A. Hamilton, a professor at the University of Pennsylvania, argues that the present allegations against President Trump require representatives and senators to act in the interest of the voters and seek the truth. Hamilton explains that the checks and balances our Constitution’s framers put in place were designed for this very type of situation, and the power to impeach serves a vital role of protecting the people.

Illinois law professor Lesley Wexler comments on a recent report on Faculty Sexual Misconduct issued by a committee at the University of Illinois at Urbana-Champaign that calls for a sweeping overhaul of the University’s approach to sexual harassment. Wexler begins to explore the proposed reforms, describing the major changes and what they aim to address, and she raises some of the questions that the reforms present.

Cornell law professor Michael C. Dorf explains why U.S. Supreme Court cases—confusingly, Nixon v. United States and United States v. Nixon—together should foreclose any legal arguments that might have supported President Trump’s strategy to fight impeachment. Dorf explains each of the precedents and their bearing on today’s situation.