Articles Posted in Constitutional Law

Cornell law professor Sherry F. Colb considers when the void-for-vagueness doctrine, which has a due process component, does and does not make sense. Colb argues that differences in the length of a criminal sentence have little or no deterrence effect, so imposing long sentences as an attempt to deter crimes is a waste of resources.

Marci A. Hamilton—a professor at the University of Pennsylvania and one of the country’s leading church-state scholars—discusses how the U.S. Supreme Court’s majority opinion in American Legion v. American Humanist Association rejects without giving proper respect to the “endorsement test” that Justice Sandra Day O’Connor first championed as a way of maintaining separation between church and state. Hamilton argues that the endorsement test was the right test at the right time in history and that the majority in American Legion attempted to erase Justice O’Connor’s contribution to the Court’s Establishment Clause doctrine.

Brazilian legal scholar Igor de Lazari, Brazilian law professor Antonio G. Sepulveda, and attorney David S. Kemp compare the evolving recognition of the rights of LGBTQ individuals in Brazil and the United States. De Lazari, Sepulveda, and Kemp describe specifically the role of courts in recognizing these rights and establishing protections in the absence of clear legislation.

Illinois law dean and professor Vikram David Amar discusses the U.S. Supreme Court’s decision in Rucho v. Common Cause, in which the Court held that disputes over partisan gerrymandering are political questions that are beyond the competence of federal courts to resolve. Amar argues that while state courts may attempt to process partisan gerrymandering claims under state statutes and state constitutional provisions, they would need to do so not under the federal Constitution but under independent and adequate state-law grounds.

Cornell law professor Sherry F. Colb and George R. El-Khoury, JD, comment on a decision by the U.S. Supreme Court last month applying the “exigent circumstances” exception to the warrant requirement to permit the admission in evidence of a blood-alcohol test administered on an unconscious driver. Colb and El-Khoury describe some of the problems with using the exigent circumstances exception to arrive at the result in this case and propose some alternative approaches that might yield the same outcome but for stronger reasons.

SMU Dedman School of Law professor Joanna L. Grossman describes recently passed anti-discrimination laws in New York that improve protections for victims of sexual harassment and assult. Grossman describes the role of the #MeToo movement in increasing awareness of the prevalence of sexual harassment and assault and praises New York for being a leader in protecting the rights of women.

University of Florida Levin College of Law professor Neil H. Buchanan laments the current precarious situation of our constitutional democracy. He argues that a constitutional democracy becomes unsustainable and ultimately dies when a party abuses and changes the system to maintain its power, which he observes Republicans are doing now.

Cornell law professor Michael C. Dorf comments on the recent back-and-forth involving the Department of Justice seeking to place a new legal team on the Trump administration’s effort to justify the addition of a citizenship question to the 2020 census. Dorf points out that whoever ends up representing the administration, this attempted withdrawal may shed light on the merits of the case and the lengths to which the President and those who serve him are willing to go for the citizenship question.

NYU law professor Samuel Estreicher comments on the U.S. Supreme Court’s recent decision regarding the inclusion of a citizenship question on the 2020 census questionnaire, arguing that courts should not get involved in determining whether agency action is based on “pretext.” Rather, Estreicher suggests that this particular case was highly unusual and that the Court’s decision should be limited accordingly.

Illinois law dean and professor Vikram David Amar reflects on the decisions the U.S. Supreme Court issued at the end of its 2018–19 term. Amar observes three key trends at the Court: its focus on what constitutes improper government motive, concerns over broad congressional delegation to the executive, and tension over the meaning and theory of stare decisis.

In honor of the 100th anniversary of Illinois’ ratification of the Nineteenth Amendment, Illinois law dean and professor Vikram David Amar reflects on what it means to be free from discrimination in the right to vote. Amar points out the connection between the right against discrimination in voting and the right discrimination in jury service and calls upon us all to consider what full, equal citizenship means.

Cornell law professor Michael C. Dorf comments on a decision the U.S. Supreme Court issued this week invalidating a provision of the Lanham Act that prohibited registration of “immoral” and “scandalous” trademarks. Dorf provides a brief history of the legal protection for profane speech and considers the implications of a more precisely worded statute regulating profanity for trademark registration purposes.

Joanna L. Grossman, SMU Dedman School of Law professor, and Lawrence M. Friedman, a Stanford Law professor, comment on a decision by the U.S. Supreme Court last month upholding a provision of Illinois law that prescribed the disposition of fetal remains. Grossman and Friedman focus their discussion on Justice Clarence Thomas’s concurring opinion and his discussion of eugenics, which they argue is inapt and a distorted telling of history.

Cornell law professor Joseph Margulies addresses comments made in an op-ed by Atlanta District Attorney John Melvin that opponents of restrictive abortion laws are similar to Nazis or supporters of Jim Crow laws. Margulies explains why the comparison is not only intellectually and morally bankrupt, but also shameful, deserving of the most direct condemnation.

Marci A. Hamilton, a professor at the University of Pennsylvania and one of the country’s leading church-state scholars, comments on the decision by the U.S. Supreme Court in American Legion v. American Humanist Association, in which the Court upheld against an Establishment Clause challenge a large cross on public land in Maryland. Hamilton argues that in reaching its conclusion, a majority of the Court ignores the purpose of the Establishment Clause—to create a bulwark against the tyranny that results from the joinder of government and religious power to rule.

UNLV Boyd School of Law professor Leslie C. Griffin discusses the decision by the U.S. Supreme Court earlier this week upholding the display of a World War I memorial cross on public land. Griffin argues that the majority erroneously and unnecessarily complicated the question asked by the Establishment Clause, effectively forgetting that the United States is not a Christian nation and that the Constitution requires the government not to prefer one religion over any other (or none at all.

Illinois law dean and professor Vikram David Amar contrasts Florida’s recent enactment of one of the strictest measures in the country to prohibit state and local entities from becoming “sanctuary” jurisdictions with California’s pro-sanctuary state laws. Amar explains this autonomy of states to enact such different laws with respect to federal laws as a product of the so-called anti-commandeering doctrine the Supreme Court has applied in three major cases over the past quarter century.

Jareb Gleckel, a third-year law student at Cornell Law, comments on the legal and regulatory issues that arise from new food technologies such as “cell-based meat”—which is derived from stem cells to create meat that is identical, at the cellular level, to animal flesh, but does not require the raising and slaughtering of animals. Gleckel explains why both the Food and Drug Administration (FDA) and the Department of Agriculture (USDA) have been asked to exercise jurisdiction over this cell-based meat and argues that, given the position of “Big Ag” that the USDA should regulate cell-based meat, cell-based meat companies therefore have the right to call their products “slaughter-free meat,” “cruelty-free meat,” “antibiotic-free meat,” or even simply “meat.”

University of Florida Levin College of Law professor Neil H. Buchanan considers whether America, having elected Donald Trump, must consequently accept everything he does as “democracy at work.” Buchanan argues that constitutional processes exist not only to protect democracy not only in word but also in spirit, and that extreme consequences of legal action can still threaten the future of democracy.

SMU Dedman School of Law professor Joanna L. Grossman comments on a recent unanimous decision by the U.S. Supreme Court clarifying a procedural point about Title VII and the requirements of employees filing discrimination claims in federal court. As Grossman explains, the Court’s opinion correctly minimizes the importance of a technical requirement of employees and might as a result provide greater protection to employees who suffer from workplace discrimination.