Articles Posted in Constitutional Law

Cornell University law professor Sherry F. Colb comments on a recent decision in which the U.S. Supreme Court held that a juror’s use of racial stereotypes to vote for conviction may be used to invalidate the verdict, despite evidentiary rules that otherwise prohibit the use of juror testimony to challenge a verdict. Colb argues that the Supreme Court should have either extended the Sixth Amendment exception to cover other types of juror misconduct, or repealed the rule that prohibits the use of post-verdict juror testimony to impeach a verdict.

Chapman University Fowler School of Law professor Ronald D. Rotunda calls for the executive branch to shine a light into some areas of government that have been obscured in the past eight years, including the conduct of former IRS officer Lois Lerner, Operation Fast and Furious, and investigations by the offices of the inspectors general. Rotunda argues that the release of documents related to these and other issues will help us know if we should be worried about our government.

Illinois Law dean and professor Vikram David Amar and UC Davis Law emeritus professor Alan E. Brownstein explain the complexities behind analyzing the motive underlying legislation and executive orders. Specifically, Amar and Brownstein highlight the difficulty in courts’ using perceived motive to strike down President Trump’s executive order regarding entry to the United States.

George Washington law professor and economist Neil H. Buchanan explains in plain English what Mick Mulvaney meant when he attempted to justify President Trump’s budget proposal that would cut programs that help America’s most vulnerable, such as Meals on Wheels and subsidized school lunches for poor children. As Buchanan explains, Mulvaney’s explanation is based on a false notion that better-off people gain as much utility from each dollar as worse-off people receive from the same amount.

Cornell University law professor Michael C. Dorf explains the value of the confirmation hearing of Supreme Court nominee Neil Gorsuch, despite the tradition in such hearings of the nominee evading answering questions about the most divisive legal issues of the day. Dorf argues that the Gorsuch hearing provides a unique opportunity for bipartisan repudiation of President Trump’s irresponsible attacks on the judiciary.

Marci Hamilton, a Fox Distinguished Scholar in the Fox Leadership Program at the University of Pennsylvania and the CEO of CHILD USA, calls attention to the patterns of child sex abuse that indicate it is a symptom of a larger society-wide problem. To address this problem at its root, Hamilton proposes a law that would mandate certain principles and practices for every organization involved in any way with children.

Marci A. Hamilton, a Fox Distinguished Scholar in the Fox Leadership Program at the University of Pennsylvania, pens an open letter to the American people warning of the dangers of trusting any president without questioning. Hamilton explains that the framers of the Constitution envisioned that those in power could not be trusted and for that reason empowered the press to check those with power. Hamilton argues that the Trump Administration is encouraging the American people to abandon this part of the social contract.

Cornell University law professor Sherry F. Colb examines the how ineffective assistance of counsel and equal protection interact in cases involving race to produce results different from what might result from similar cases not involving race. Specifically, Colb looks at whether the U.S. Supreme Court’s conclusion of ineffective assistance of counsel in Buck v. Davis would have been different if the issue of race had not been involved.

Illinois Law dean and professor Vikram David Amar discusses several legislative proposals in various states that purport to give state legislatures power to interpret and implement the federal Constitution notwithstanding judicial rulings interpreting the same. Amar explains some of the key differences between the different proposals and why some are likely to pass constitutional muster while others are not.

Cornell University law professor Michael Dorf argues that in some contexts, consideration of states’ rights is relevant to the interpretation of federal statutes, but in other contexts—including the federal lawsuit over a transgender boy’s access to a boys’ restroom at school—principles of federalism are outweighed by other considerations. Dorf provides three examples of instances where federalism should play a role in the interpretation of federal statutes, and he explains why the transgender bathroom case differs from those instances.

John W. Dean, former counsel to President Richard Nixon, explains how President Trump’s poor relations with mainstream news outlets will damage his presidency. Specifically, Dean focuses on the endless leaks, the First Amendment, and the ill will Trump is creating for himself.

Cornell University law professor Sherry F. Colb comments on a bill currently under consideration by the Oklahoma legislature that would require a woman who wants to have an abortion to first obtain the written consent of the father of the pregnancy. Colb argues that not only is the bill plainly unconstitutional, but it is also outright misogynistic.

SMU Dedman School of Law professor Joanna Grossman argues that the decision by the Trump Administration to roll back protections for transgender students is mean-spirited and serves no legitimate purpose. Grossman briefly describes the history of the recognition of transgender rights under federal statutes and explains why protections for transgender students make far greater legal sense than denying those protections.

Chapman University, Fowler School of Law, professor Ronald D. Rotunda explains the legal precedent behind the executive’s power to restrict visas for non-U.S. citizens to enter the United States. Rotunda points out that the recent opinion by the U.S. Court of Appeals for the Ninth Circuit fails to mention almost any of the precedential cases on point when it struck down President Trump’s executive order limiting immigration.

University of Illinois Law dean and professor Vikram David Amar provides answers to some common questions about the Trump Administration from a constitutional perspective. Specifically, Amar addresses what is a constitutional crisis and whether we are approaching one, what the worst-case constitutional scenario might look like, how state and local governments can resist federal government overreach, to what extent executive criticism of the judiciary has a chilling effect, and what topics are fair game in the confirmation hearings of Judge Neil Gorsuch.

Marci Hamilton, a Fox Distinguished Scholar in the Fox Leadership Program at the University of Pennsylvania and leading church/state scholar, outlines what the United States must do to restore true religious liberty under the First Amendment, rather than go down the path of extreme religious liberty supported by right-wing Christian lobbyists. Hamilton argues that President Trump needs to remove Steve Bannon, unhinge himself from the extreme religious right, and open his eyes to the plain discrimination directly in front of him.

Guest columnist Dean Falvy, a lecturer at the University of Washington School of Law and attorney with an international business practice, explains how Congress might be able to use the 25th Amendment to remove President Donald Trump. Falvy explains the difficulties in involuntarily removing a president under the 25th Amendment and describes how Congress might get around these difficulties.

Chapman University, Fowler School of Law, professor Ronald D. Rotunda comments on the proper handling of classified information and expresses concern over Hillary Clinton’s apparent departure from protocol.

John W. Dean, former counsel to President Richard Nixon, discusses President Trump’s recent comments regarding information leaks, one of which led to the resignation of National Security Advisor Michael Flynn. While Dean explains that there is no official law in the United States that makes it a crime to leak information to the news media or others, many former U.S. presidents have made attempts to prosecute those who leaked information during their presidencies, with varying degrees of success. This, Dean notes, may lend credence to President Trump's threat of legal consequences, should the individuals responsible for these most recent leaks be identified.

George Washington law professor and economist Neil H. Buchanan considers where resistance may arise during Donald Trump’s presidency. Specifically, Buchanan considers the three branches of government and identifies where in each branch resistance to Trump is strongest, as well as where it needs to be augmented.