Articles Posted in Constitutional Law

Cornell University law professor Joseph Margulies reacts to the lack of response by many important people and organizations to recent shootings by police of Alton Sterling in Baton Rouge, Louisiana, and Philando Castile in Falcon Heights, Minnesota. Margulies points out that when leadership is silent on an issue, people will take to the streets to try to rectify it, often perpetuating violence.

Cardozo Law professor Marci Hamilton comments on Mississippi’s latest law stigmatizing and marginalizing the LGBTQ community, and compares it to the federal First Amendment Defense Act. Hamilton argues that these divisive and discriminatory laws resemble apartheid in South Africa in that they are purported to be accommodations but in fact are simply immoral and wrong.

Cornell University law professor Sherry F. Colb comments on the U.S. Supreme Court’s recent decision in Birchfield v. North Dakota, in which the Court held that states may criminalize the refusal to take a breathalyzer test but may not criminalize the refusal to take a blood test, absent a warrant, as an ordinary incident of an arrest for driving while impaired. Colb explains why the Court distinguished the two types of tests and argues that the decision effectively balances competing interests in public safety and individual privacy.

SMU Dedman School of Law Professor Joanna Grossman comments on the U.S. Supreme Court’s recent decision in Whole Woman’s Health v. Hellerstedt, in which the Court struck down certain restrictions on abortion clinics that imposed an undue burden on women’s constitutional right of access to abortion. Grossman describes the history of abortion access in the United States and how the Court’s decision in Whole Woman’s Health fits within that history.

Dean and law professor at Illinois Law, Vikram David Amar comments on Justice Anthony Kennedy’s majority opinion last week in Fisher v. Texas, where the U.S. Supreme Court upheld the part of the University of Texas undergraduate admissions policy that formally takes the race of individual applicants into account in admitting a portion of the entering freshman class. Amar praises the opinion for being more forthright than other majority opinions of the Court in this area of law, but he expresses concern that in some respects Justice Kennedy’s language may actually obfuscate the legal doctrine at issue.

Cornell University law professor Michael C. Dorf comments on the procedural issues the U.S. Supreme Court recently addressed in the Texas abortion case, Whole Woman’s Health v. Hellerstedt. Dorf explains why the majority’s reasoning on the procedural issues is reasonable (and in his view, correct), notwithstanding the criticism by the dissent.

Cornell University law professor Sherry F. Colb discusses the U.S. Supreme Court’s recent decision in Utah v. Strieff, holding that evidence found in that case as a result of a Fourth Amendment violation was not the direct consequence of the violation and was therefore properly admitted into evidence against the defendant under the attenuation doctrine. Colb explains how one throwaway line in the opinion, if taken to its logical conclusion, could potentially spell the death of the exclusionary rule.

Cornell University law professor Joseph Margulies explains why a criminal conviction of police officers is neither a necessary nor sufficient component of justice. In fact, Margulies argues that those who would dismantle the carceral state should not be the first to invoke it by seeking convictions as the sole means of justice.

Cardozo law professor Marci A. Hamilton describes a relatively new phenomenon of religious leaders coming together to criticize bad acts—even bad acts perpetrated by people who purport to be religious themselves. Hamilton explains how for too long, religious actors seemed beyond reproach no matter what they did, simply by nature of being religious. She expresses great relief that such a period seems to be passing, as evidenced by the widespread support for the LGBTQ community in response to the recent shooting at the Orlando gay club Pulse.

Cornell University law professor Sherry F. Colb considers the changing meaning of the U.S. Supreme Court’s opinion in Miller v. Alabama, which held that mandatory life sentences without the possibility of parole. Colb discusses specifically the Court’s decision earlier this year in Montgomery v. Lousiana, which held that Miller must be applied retroactively on state collateral review.

Hofstra University law professor Joanna Grossman praises Gillian Thomas’s new book Because of Sex: One Law, Ten Cases, and Fifty Years That Changed American Women’s Lives at Work, which profiles ten of the most important Supreme Court cases to the advancement of women’s equality in the workplace.

Cornell University law professor Michael C. Dorf evaluates statements made by Donald Trump in response to the mass shooting at a gay nightclub in Orlando this past weekend. Dorf argues that by telling American Muslims that they are all presumed to be terrorists, Trump actually fosters resentment and radicalization in the small portion of the American Muslim community that has the potential for radicalization.

George Washington law professor and economist Neil H. Buchanan explains why, whether Donald Trump wins or loses the presidency, constitutional democracy in the United States is seriously threatened. Buchanan argues that Trump’s stated plans for the country would effectively destroy our constitutional democracy, but even a Republican-caused gridlocked Congress under a President Hillary Clinton could cause a debt crisis and economic collapse.

Cornell University law professor Joseph Margulies explains how two front-end criminal justice reforms—demanding moral consistency in policing and taking addiction seriously—would significantly shrink the carceral state and make it more just.

Cardozo Law professor Marci Hamilton explains what is really behind a Catholic bishop’s letter urging Catholics to oppose Pennsylvania HB 1947—a significant bill that would reform statutes of limitations for victims of child abuse and incest thereby giving them greater access to justice.

Cornell University law professor Michael Dorf discusses a recent unanimous decision by the U.S. Supreme Court that illustrates the lasting impact Justice Scalia had on the Court’s approach to statutory interpretation. Dorf describes the shift from purposivism to textually constrained purposivism over the past half century, and explains how they differ from the textualism Justice Scalia espoused.

Chapman University law professor Ronald Rotunda describes some significant changes in the law that could result from the next Supreme Court justice being appointed by a Democratic president. Rotunda looks at a number of seminal cases that were decided 5-4 that seem likely be overturned in such an event.

Dean and law professor at Illinois Law, Vikram David Amar describes some of the takeaway points from the U.S. Supreme Court’s decisions on legislative districting, particularly that in Harris v. Arizona Independent Redistricting Commission. Amar points out that the unexpected death of Justice Scalia in the middle of the term affects at least the reasoning—and perhaps the outcome—of this and many other cases.

In this first of a two-part series of columns, George Washington law professor and economist Neil H. Buchanan considers whether the constitutional democracy in the United States is near its demise. Buchanan compares and contrasts the responses to issues faced by middle-class America given by Democratic presidential candidates Bernie Sanders and Hillary Clinton with those given by Republican nominee apparent Donald Trump.

Hofstra University law professor Joanna Grossman critiques a recent decision by a New York trial court holding that a woman who was allegedly fired by a male boss because she was “too cute” and causing the boss’s wife to be jealous had not alleged facts amounting to unlawful sex discrimination. Grossman explains why the ruling is based on unsound reasoning and misunderstands sex discrimination law.