Articles Posted in Constitutional Law

What California Voters Should Focus on When Voting on Tim Draper’s “CAL 3” Initiative

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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.

Judicial Nominee Refuses to Say Whether Brown v. Board Was Rightly Decided

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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.

The Only Unpardonable Offense

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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.

Fly Away: Why the New York City Human Rights Commission is Right to Investigate The Wing, a Private Club and Workspace that is Just for Women

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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.

The EEOC and the #MeToo Era: Is the Budget Increase Enough?

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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.

The War Over Women’s Health: The Supreme Court Considers Validity of California Law Mandating that Anti-Abortion Pregnancy Centers Disclose if They Are Not Licensed

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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.

Is the Winner-Take-All Method States Use to Select Presidential Electors Legally Vulnerable?

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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.

Does the Constitution Permit a State to Abolish Marriage?

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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.

Lessons From the Gina Haspel Imbroglio

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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.

R.I.P. Ron Rotunda—A Man Responsible for Watergate’s Most Lasting Positive Impact

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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.

2020 Presidential Election Legal Maneuvering: Prominent Lawyers and Law Professors File Lawsuit Challenging Winner-Take-All Method Used by Texas (and Most Other States) to Pick Presidential Electors

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Illinois Law dean and professor Vikram David Amar comments on a lawsuit recently filed in Texas challenging the winner-take-all method by which Texas (and other states) administer presidential elections. Amar explains the benefits and drawbacks of the method and why the lawsuit is unlikely to elicit changes in Texas or elsewhere.

Supreme Court Divides Over What a Law Is

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Cornell University law professor Michael C. Dorf comments on a recent sharply divided decision by the US Supreme Court in Patchak v. Zinke, in which Court considered whether a particular piece of legislation actually constitutes a law. Dorf explains why the issue was so difficult and points out some of the flaws in reasoning by both the plurality and the dissent.

Maybe He’s Just a Bum

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Cornell University law professor Joseph Margulies considers the contention that President Trump's frequent tweets criticizing the ongoing investigation by Special Counsel Mueller and others are an assault on the "rule of law." Margulies notes that the prevailing view on this rather nebulous concept seems to be that the law must be allowed to operate without criticism from anyone it targets. Not only is this interpretation overly literal and simplistic, Margulies argues, President Trump’s criticism also does not amount to such an assault. The president’s attempts to interfere with the ongoing investigation, his order for Special Counsel Mueller to be fired, and other actions, on the other hand, come far closer to constituting an (attempted) assault on the rule of law.

Take a Flying Leap: The Second Circuit Holds That Skydiving Instructor Can Sue for Sexual Orientation Discrimination Under Title VII

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SMU Dedman School of Law professor Joanna Grossman comments on a decision by the US Court of Appeals for the Second Circuit, sitting en banc, holding that sexual orientation discrimination is an actionable form of sex discrimination under Title VII of the Civil Rights Act of 1964. Grossman explains the significance of the holding and describes the circuitous route federal courts have taken to finally arrive at that common-sense conclusion.

Pushback by Legislators Against Judges Illustrates the Overriding Importance of Legislative Elections

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Illinois Law dean and professor Vikram David Amar comments on the phenomenon by legislators on judges for alleged "activism." Amar argues that when the attacks on judicial independence move from seeking to limit jurisdiction or undo particular rulings to attempting to remove jurists themselves, although such attacks may not "seem" right, they are (perhaps oddly) legal. He points out that state constitutions operate not just in the larger context of morality and justice, but also in the larger context of the US Constitution. Ultimately, Amar explains, the most important decisions are made not by judges or even legislators, but by voters, when they elect people to the political branches.

Did Trump Inadvertently Make Banning Dreamers Unconstitutional?

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George Washington law professor and economist Neil H. Buchanan comments on the apparent conflict between President Trump's declaration that the Deferred Action for Childhood Arrivals (DACA) program is unconstitutional and his decision to delay ending it. Buchanan considers whether the inconsistent positions with respect to the program actually affect the constitutional options available to him.

Mass Shootings and the Supreme Court

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Cornell University law professor Michael C. Dorf describes the underappreciated role of the US Supreme Court in shaping public opinion and discussion of gun regulations. Specifically, Dorf explains that the Court's seminal decisions in District of Columbia v. Heller and McDonald v. City of Chicago have symbolic importance beyond their literal holdings, giving gun rights proponents strong rhetoric, though not strong legal basis, for an absolutist position.

Do Defendants Have the Right to Make Bad Decisions?

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Cornell University law professor Sherry F. Colb comments on the case before the US Supreme Court, McCoy v. Louisiana, in which the Court will decide whether a criminal defendant has a Sixth Amendment right to stop his attorney from announcing to a jury that his client killed the victims for whose murder he is standing trial. Colb considers the argument that the lawyer's behavior constituted deficient performance counsel and argues that in that case, the defendant's conviction should be reversed and remanded for a new trial.

Meet our Columnists

Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois College of Law on the Urbana-Champaign campus. Immediately prior to taking the position at Illinois i... more

Neil H. Buchanan

Neil H. Buchanan is an economist and legal scholar and a Professor of Law at The George Washington University. He teaches tax law and tax policy, and he has taught contract law, law and economics, and... more

Sherry F. Colb

Sherry F. Colb is the C.S. Wong Professor of Law at Cornell University. Colb teaches courses in constitutional criminal procedure, evidence, and animal rights. She has published articles in a variet... more

John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973. Before becoming White House counsel at age thirty-one, he was the chief minority counsel to the Judiciar... more

Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He has written hundreds of popular essays, dozens of scholarly articles, and six books on constitutional law... more

Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School of Law.  She is an expert in sex discrimination law. Her most recent book,  more

Marci A. Hamilton

MARCI A. HAMILTON is the Robert A. Fox Leadership Program Professor of Practice, and Fox Family Pavilion Resident Senior Fellow in the Program for Research on Religion at the University of Pennsylvani... more

Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of Record in Rasul v. Bush (2004), involving detentions at the Guantánamo Bay Naval Station, and in more

Anita Ramasastry

Anita Ramasastry is the UW Law Foundation Professor of Law at the University of Washington School of Law in Seattle, where she also directs the graduate program on Sustainable International Developmen... more

Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately prior to taking the position at Illinois, Wexler was a Professor of Law at Florida State University, whose... more