Articles Posted in Constitutional Law

Illinois Law dean and professor Vikram David Amar comments on the lawsuit filed by the Trump administration against California over its so-called sanctuary policies. Amar explains why the federal government is likely to prevail on one claim, to lose on another claim, and to lose in part on the third claim. Amar laments that both sides seem to assert extreme positions that are not entirely tenable.

Cornell University law professor Michael C. Dorf comments on the US Supreme Court’s ruling in Upper Skagit Indian Tribe v. Lundgren, but more specifically the implications of Chief Justice Roberts’s concurrence in that case. Dorf argues that the Chief Justice’s concurrence, taken to its logical conclusion, broadly undermines the basis for much of the Court’s case law involving the sovereign immunity of US states.

Guest columnist and former US Congressman Brad Miller explains why Congress may not intrude on an open criminal investigation, especially not to help political allies who are likely targets. In support, Miller points not only to traditional democratic norms, but also to unequivocal jurisprudence on the limits of congressional oversight.

Cornell University law professor Sherry F. Colb explores the reasons behind some people’s refusal to refer to trans men as men and trans women as women. Colb describes some of the concrete harms caused by such refusal, such as policies sending trans women to prisons for the wrong gender—a policy Colb argues violates the Eighth Amendment under the Supreme Court’s jurisprudence.

Cornell University law professor Joe Margulies comments on the confirmation hearing of Gina Haspel for director of the Central Intelligence Agency. Margulies initially expressed reservations about Haspel, but he explains her strengths and weaknesses and draws the important distinction between someone who is good for the Agency and someone who is good for the country.

Cornell University law professor Sherry F. Colb examines two (real, but slightly altered) conversations in order to explore the thoughts and feelings that might affect the weight we give to principles that support our positions, while disregarding the same principles when they run contrary to our positions. Colb describes the interrelatedness of conversations that arise regarding rape, racism, and free speech, specifically in the context of college fraternities, but applicable to many other situations.

Illinois Law dean and professor Vikram David Amar relates insights on campus free speech principles that came up during a recent discussion with renowned constitutional commentators Erwin Chemerinsky and Geof Stone. Among the insights are some possible explanations for why many college students today seem opposed to allowing offensive speech on campus, the different perspectives on the proper role of university officials regarding controversial guest speakers, and the question of when the costs of providing security for controversial speaker events justifies the cancellation or termination of the event.

Cornell University law professor Michael C. Dorf comments on a recent Ninth Circuit decision rejecting an effort by PETA to bring a copyright lawsuit on behalf of Naruto, a crested macaque. Dorf points out that while the result in that case is unsurprising, the court’s reasoning raises important questions about the role of lawsuits and law more generally in furthering the interests of nonhuman animals.

SMU Dedman School of Law professor Joanna L. Grossman describes the last ruling by the late Judge Stephen Reinhardt, in which Reinhardt, writing for the Ninth Circuit en banc, reversed an interpretation of the Equal Pay Act that allowed employeers to justify paying female employees less than their male counterparts based on salary history. Grossman explains why the ruling is a correct interpretation of the Equal Pay Act and notes that the decision underscores Judge Reinhardt’s reputation as a staunch defender of equality and justice.

Illinois Law dean and professor Vikram David Amar comments on Tim Draper’s proposal to divide California into three separate state. Amar describes what the proposal would do and provides three levels of hurdles that will (and Amar argues should) make the proposal a difficult sell, particularly among rational Democrats, who make up the majority of California voters.

Cornell University law professor Michael C. Dorf comments on an exchange during the confirmation hearing of Wendy Vitter, whom President Trump has nominated for a federal district court judgeship, in which Vitter declined to answer whether she thought Brown v. Board of Education was rightly decided. Dorf points out that Vitter’s refusal to answer that question may have been an attempt to avoid further scrutiny about her views about abortion but also served to inadvertently acknowledge what conservatives routinely deny—that a judge’s “personal, religious, and political” views necessarily interact with the legal materials.

Cornell University law professor Joseph Margulies expands upon a prior column in which he argued that all of President Donald Trump’s attacks thus far on Special Counsel Mueller are not actually a threat to the rule of law. Margulies considers two other scenarios: delegating the task of firing the special counsel, which Margulies argues does threaten the rule of law, and pardoning those convicted by the special counsel, which he argues does not.

George Washington law professor and economist Neil H. Buchanan considers gerrymandering, particularly whether there are legal or constitutional limits on how far one party can go to marginalize and potentially destroy the other party. Buchanan explains how gerrymandering works and why it is such a troubling phenomenon in a democracy.

SMU Dedman School of Law professor Joanna L. Grossman considers whether New York’s all-female private social club, The Wing, violates that state’s public accommodations law. Grossman reviews the relevant case law and concludes that The Wing will likely have difficulty arguing that should be exempt from the public accommodations law under First Amendment or public policy grounds.

Marci A. Hamilton—a Fox Distinguished Scholar in the Fox Leadership Program at the University of Pennsylvania, and the CEO and Academic Director of CHILD USA—considers recent news of the EEOC’s budget increase for fiscal year 2018. Hamilton notes that this appears to be a win for the EEOC and the #MeToo movement at first glance. Nevertheless, Hamilton explains that the increasing public encouragement for victims of sexual misconduct to come forward does not negate the unwillingness of those in power to effect change within the legal system for these victims to have a real chance at justice.

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.

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.

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.

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.

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.