Articles Posted in Constitutional Law

Cornell Law professor Michael C. Dorf discusses the U.S. Supreme Court’s recent 6-3 decision in Garland v. Cargill, which invalidated a federal regulation banning bump stocks by finding that they do not fall under the statutory definition of a machinegun. Professor Dorf argues that the Justices’ ideological views on gun control, rather than principled differences in interpretive methodology, best explain the divided outcome in this case and many other closely contested Supreme Court cases.

UC Davis Law professor Vikram David Amar discusses a recent Illinois state court ruling in Colazzo v. Illinois State Board of Elections, which dealt with the complex issue of ballot access and the application of a new state law that would have prevented certain Republican candidates from appearing on the November 2024 general election ballot. Professor Amar argues that while the court reached the correct result in this case, the reasoning behind the decision raises interesting questions about the independence of state law grounds, the constraints on altering election rules close to an election, and the need to balance fairness and notice concerns with the importance of each election in maintaining democratic integrity.

Amherst professor Austin Sarat discusses the reactions of former President Trump and his allies to his conviction in the New York hush money trial, including their claims that the prosecutions against him are politically motivated and their threats to retaliate with prosecutions against Democrats if Trump is re-elected. Professor Sarat argues that these false allegations and threats represent a dangerous escalation in the MAGA campaign to discredit the rule of law and turn criminal prosecution into a tool of political combat, which would undermine fundamental freedoms and allow future presidents to target individuals based on their political views rather than actual crimes committed.

UC Davis Law professor Vikram David Amar discusses how California’s Rule of Court 2.1008, which allows individuals aged 70 and older to be excused from jury service due to disability without requiring documentation, may violate the Twenty-Sixth Amendment’s prohibition on age discrimination in voting rights. Professor Amar argues that since jury service is a form of political participation akin to voting, singling out those 70 and older in a way that reduces their jury participation based on assumptions about age and disability is constitutionally problematic, just as it would be to excuse women from juries based on assumptions about their domestic responsibilities.

Former federal prosecutor Dennis Aftergut discusses Supreme Court Justice Samuel Alito’s refusal to recuse himself from a case involving Donald Trump’s claim of immunity related to the January 6th Capitol riot, despite flags associated with the insurrection being flown at Alito’s properties. Mr. Aftergut argues that Alito’s non-denial denials and failure to condemn the violence on January 6th raise serious questions about the appearance of impropriety and the Court’s legitimacy, suggesting that Alito should recuse himself to maintain public trust in the institution.

UC Davis Law professor Vikram David Amar discusses the U.S. Supreme Court’s recent decision in Consumer Financial Protection Bureau (CFPB) v. Community Financial Services Association of America, Ltd., which upheld the constitutionality of the CFPB’s funding scheme, and examines the role of “history and tradition” in the Court’s constitutional jurisprudence. Professor Amar argues that while relying on post-enactment traditions to interpret the Constitution raises complex questions, especially in the context of originalism, such traditions may be more defensible when determining the scope of individual rights as opposed to structural provisions like separation of powers and federalism.

Amherst professor Austin Sarat discusses former President Donald Trump’s recent attacks on the legal system and Congress, highlighting how his rhetoric exploits and exacerbates the American public's growing mistrust and disillusionment with these institutions. Professor Sarat argues that even if Trump is defeated in the upcoming election, the U.S. must address the underlying issues causing this vulnerability in order to restore public confidence and ensure the survival of American democracy in the face of Trumpism.

Cornell Law professor Michael C. Dorf discusses how colleges and universities should handle student protests that violate campus rules, exploring whether such rule-breaking can be considered civil disobedience and what disciplinary consequences may be appropriate. Professor Dorf argues that while protesters should face consequences for rule violations, universities should consider showing some leniency for peaceful protests involving minor infractions, and that developing fair policies requires an inclusive process involving students, faculty, staff and administrators, as well as robust due process protections.

UC Davis Law professor Vikram David Amar discusses a recent Supreme Court decision holding that the Consumer Financial Protection Bureau’s (CFPB) funding mechanism, which draws money from the Federal Reserve System rather than yearly congressional appropriations, does not violate the Constitution’s Appropriations Clause. Professor Amar argues against the view expressed in a Wall Street Journal op-ed that this ruling could turn into a “stunning defeat” for the CFPB due to the Fed’s recent operating deficits, asserting that the Court’s decision merely rejects the Appropriations Clause as a basis to challenge the CFPB’s funding and does not affirmatively rely on that Clause to justify the Bureau’s operations.

Stanford Law visiting professor Joanna L. Grossman discusses the recently enacted Pregnant Workers Fairness Act (PWFA) and its accompanying regulations from the Equal Employment Opportunity Commission (EEOC), which provide protections and reasonable accommodations for pregnant workers. Professor Grossman explains key aspects of the new law and regulations, emphasizing that they will help countless workers maintain their jobs during pregnancy and childbirth while also combating stereotypes about women's labor force attachments and ultimately benefiting both employees and employers.

Amherst professor Austin Sarat discusses the systematic exclusion of Jewish people from death penalty juries in Alameda County, California, and explores Jewish perspectives on capital punishment. Professor Sarat argues that while Jewish religious texts mention capital punishment, rabbinical interpretations and Jewish history have made many Jews wary of the death penalty, and the discriminatory practices in Alameda County highlight the need to end capital punishment altogether.

Amherst professor Austin Sarat discusses the recent adoption of nitrogen hypoxia as a method of execution in several U.S. states, focusing on Alabama’s recent executions and other states considering or implementing this method. Professor Sarat argues that, despite proponents’ claims, nitrogen hypoxia is not a humane or problem-free method of execution, but instead echoes the unfulfilled promises made about previous execution methods like electrocution, gas chambers, and lethal injection.

Cornell professor Joseph Margulies comments on a pro-Palestinian encampment set up by student activists at Cornell University, which the author views as a peaceful protest in line with the university’s stated values. Professor Margulies shares an opinion piece he wrote in the student newspaper, The Cornell Daily Sun, in which he criticized the university administration’s cold response to the encampment, arguing that the students’ demands for divestment, acknowledgement, disclosure, and absolution are just, and that Cornell is failing to live up to its reformist ideals by deriding the protesters and remaining silent on the issues they raise.

Amherst professor Austin Sarat discusses the recent surge in pro-Palestinian protests on college campuses across the United States and how these protests have become a political issue in the 2024 presidential campaign. Professor Sarat argues that while peaceful protest should be protected, violent and disruptive protests should not be tolerated, and expresses concern that the campus protests, despite their aim to support human rights, may inadvertently help those who seek to undermine human rights and decency both domestically and internationally.

UC Davis Law professor Vikram David Amar and professor emeritus Alan E. Brownstein discuss the regulation of student protests and encampments on college campuses, particularly focusing on the balance between protecting free speech and ensuring the safety and functioning of the university. Professors Amar and Brownstein argue that while peaceful protests should generally be permitted, universities have significant interests—such as preventing physical obstruction, noise pollution, unsanitary conditions, and liability issues—that can justify content-neutral time, place, and manner restrictions on encampments, even if evenly enforcing such restrictions during tense situations presents challenges.

In this second of a two-part series of columns discussing a recent incident at a North Carolina high school where a student was suspended for using the term “illegal alien” in class, UC Davis Law professor Vikram David Amar and Illinois Law professor Jason Mazzone explore how the dispute might be analyzed applying only the Supreme Court’s seminal decision in Tinker v. Des Moines Independent School District. Professors Amar and Mazzone argue that while schools have some authority to regulate disruptive student speech under Tinker and Hazelwood v. Kuhlmeier, the student’s suspension here likely violated due process because he lacked clear prior notice that using this term, which appears in Supreme Court opinions and federal statutes, was prohibited.

In this first of a two-part series of columns discussing a recent incident at a North Carolina high school where a student was suspended for using the term “illegal alien” in class, UC Davis Law professor Vikram David Amar and Illinois Law professor Jason Mazzone explain the relevant First Amendment case law surrounding student speech in public K-12 schools. Professors Amar and Mazzone suggest that under the Supreme Court’s decision in Hazelwood School District v. Kuhlmeier, which allows schools broad authority to regulate student speech that occurs within the curriculum, the school may have been justified in disciplining the student, but they note that there are still some unresolved questions and complexities that they will address in Part II of their analysis.

James F. McHugh, a retired Massachusetts Appeals Court Justice, comments on the American Law Institute (ALI)’s recently released Statement entitled “Ethical Standards for Election Administration,” which seeks to help election administrators understand and agree on basic ethical principles for implementing election laws, in light of the contentious 2020 Presidential Election and concerns about the upcoming November 2024 election. Justice McHugh points out that ALI’s report provides a set of common principles and a shared national vocabulary for ethical election administration, emphasizing adherence to the law, protection of election integrity, transparency, impartiality, personal integrity, ethics, and professional excellence, with the goal of increasing public confidence in the impartial administration of elections.

Cornell Law professor Michael C. Dorf discusses the recent conflict at Columbia University involving student protests, potential antisemitism, and the balance between free speech and protection from harassment on college campuses. Professor Dorf argues that while Title VI of the Civil Rights Act obligates colleges to prevent harassment, free speech should be more strongly protected in public campus spaces, and the sensitivities of observers should hold less weight there compared to other campus settings.

UC Davis Law professor Vikram David Amar discusses two recent incidents at Stanford Law School and the University of Maryland where student protesters disrupted invited speakers, and he explores the legal and constitutional implications of such disruptions. Professor Amar argues that while protesters have a right to express their dissent, they do not have a constitutional right to “shout down” speakers in a way that prevents the speakers from being heard, and that universities can and should adopt content-neutral policies to prevent such disruptions without violating free speech principles.