Articles Posted in Constitutional Law

Cornell law professor Michael C. Dorf debunks President Trump’s claim that he has kept his campaign promise to “protect coverage for patients with pre-existing conditions.” Dorf provides three primary reasons that the claim is dishonest: the administration’s position in a pending lawsuit; the GOP’s proposed alternative, which does not require insurance companies to offer policies that actually cover pre-existing conditions, and the claim that Democratic support of Medicare for All is “radical socialism.”

UNLV Boyd School of Law professor Leslie C. Griffin comments on a case currently before the US Supreme Court—Madison v. Alabama—in which the Court will consider whether a death row inmate may constitutionally be executed despite his advanced dementia causing him not to recall the crime for which he is to be executed. Griffin highlights the ethical and legal issues raised in that case and addresses considerations on both sides.

SMU Dedman School of Law professor Joanna L. Grossman comments on a recent decision by a federal court in Florida correctly denying an employer’s motion for summary judgment in a workplace rape case that deserves a full trial on the merits. Grossman points out that anti-discrimination law is not sufficient to eliminate, or even substantially reduce, the incidence of sexual harassment at work, but it is unquestionably necessary to address that problem and protect survivors.

In this second of a four-part series about a new approach to community well-being, Cornell law professor Joseph Margulies comments on the problem of displacement. Margulies points out that influx of capital is not necessarily bad for community well-being but distinguishes gentrification, which can be good, from displacement, which is harmful to communities.

Illinois Law dean Vikram David Amar and professor Jason Mazzone consider the constitutionality of California’s recently passed law requiring that publicly held corporations to have a minimum number of women on their boards of directors. In this first of a series of columns on this topic, Amar and Mazzone analyze whether, under the Equal Protection Clause, the law fails federal intermediate scrutiny.

Cornell law professor Michael C. Dorf anticipates the possible next steps in the federal government’s lawsuit against California over the state’s new law mandating net neutrality. Dorf explains why, if conservative scholars and Supreme Court justices succeed in what seems to be their goal of weakening federal regulatory agencies, that could ironically be a boon to net neutrality and to government regulation more broadly.

Cornell law professor Joseph Margulies argues that the current approach to community well-being will not save the American city. Rather, Margulies points out that communities must remove wealth from individual ownership and place it in the shared hands of the community.

Illinois Law dean and professor Vikram David Amar considers whether the recent purported ratifications by Nevada and Illinois of the Equal Rights Amendment to the US Constitution, proposed in 1972, have any legal effect. Amar proposes seven questions and answers raised by these states’ actions and argues that even if a 38th state were to ostensibly ratify that amendment (the number needed to amend the Constitution), it could not be considered part of the Constitution.

Marci A. Hamilton, professor and resident senior fellow in the Program for Research on Religion at the University of Pennsylvania, calls upon Congress to dissolve and reconstitute the United States Olympic Committee and USA Gymnastics due to their inept handling of child sex abuse within those organizations. Hamilton points out that private organizations have boards of directors who shoulder responsibility for correcting actions of their organizations, but Congress must act when the bad actors are within national governmental bodies (NGBs) such as USOC and USA Gymnastics.

Cornell law professor Joseph Margulies explains how the recent anonymous op-ed published in The New York Times underscores the fundamental continuity between the Obama and Trump administrations on issues of national security. As Margulies observes, our approach to national security in the post-9/11 world has achieved hegemonic status, but we should hope that some future president might not share the same hegemonic view of transnational terror and instead may try to set national security on a different course.

In this second part of a series of columns, GW law professor and economist Neil H. Buchanan considers how the United States, and indeed the world, would shift substantially to the right with a Justice Brett Kavanaugh on the Supreme Court. Buchanan explains not only what might change, but how we can expect that change to come about, as well.

Cornell law professor Michael C. Dorf explains why President Trump can unilaterally undermine NAFTA but cannot act to replace it without help from Congress. Dorf distinguishes treaties from “congressional-executive agreements” (NAFTA is an example of the latter), and he points out that any new agreement Trump seeks to enter with Canada and Mexico that differs in any substantial way from NAFTA can only become effective upon the passage of new legislation by Congress.

Alan Brownstein, an emeritus law professor at UC Davis Law, comments critically on the sole opinion—a dissent—US Supreme Court nominee Brett Kavanaugh has written about the Second Amendment. Brownstein points out two critical fallacies of Judge Kavanaugh’s position with respect to Second Amendment challenges to gun regulations articulated in that dissenting opinion.

Cornell law professor Joseph Margulies describes the ways in which the United States has changed (and remained the same) in its approaches to national security, from President George W. Bush to President Barack Obama to President Donald Trump. Margulies refers to a column he wrote in January 2017 predicting the trajectory of national security under President Trump and points out that many of his predictions have come to pass.

UNLV Boyd School of Law professor Leslie C. Griffin explains why broad support of religion is not necessarily good for religious freedom. Specifically, Griffin looks at the position of Judge Brett Kavanaugh on a number of issues from his time on the bench and before, and predicts that as a justice of the US Supreme Court, he is unlikely to ensure everyone’s constitutional rights are protected, but only those of certain groups.

SMU Dedman School of Law professor Joanna L. Grossman comments on a lawsuit recently filed by the EEOC against United Airlines alleging that the airline failed to protect a female flight attendant from sexual harassment by a pilot, in violation of its obligations under federal anti-discrimination law. Grossman argues that while United is entitled to its day in court, it will need compelling evidence to refute the allegations in the EEOC's complaint.

Illinois Law dean and professor Vikram David Amar explains why the norm of not asking a Supreme Court nominee about his specific views about specific cases does not make sense and renders the hearing unhelpful in evaluating him as a potential justice. Amar explains the distinction between promising to rule in a certain way and predicting how one might rule, and he debunks some of the reasons often given for the norm of not asking (or answering) these types of questions during the confirmation hearing.

Illinois law professor Lesley Wexler comments on the #ChurchToo movement, a campaign arising from the viral #MeToo movement, that seeks to raise awareness of sexual assault in the specific context of churches. Wexler describes the similarities between the #MeToo and #ChurchToo movements, as well as some key differences, and explains that any meaningful change must come largely from within these communities due to challenges in church doctrine and philosophy, particularly with evangelical churches.

Illinois Law dean and professor Vikram David Amar comments on two decisions from the US Supreme Court’s 2017–18 term in which the Court notably overruled two longstanding constitutional precedents by 5–4 votes. Amar discusses the doctrine of horizontal stare decisis—the Court’s respect for its prior rulings—and focuses on three questions in particular these two cases present.

Cornell law professor Michael C. Dorf explains why the FDA’s recent announcement that it intends to restrict the word “milk” on food labels may present First Amendment issues. Dorf points to the US Supreme Court’s decision last year in Matal v. Tam—which rejected the Patent and Trademark Office’s denial of a trademark to a band on the ground that the name was offensive—as evidence of the Court’s skepticism about the government making ideological judgments in the grant or denial of rights to exclusive use of a word.