Articles Posted in Constitutional Law

Vikram David Amar, law professor and dean at Illinois Law, and Michael Schaps, a California civil litigation attorney, critique a recent decision by the U.S. Court of Appeals for the Ninth Circuit considering whether and when a government physician can take into account a patient’s race. Amar and Schaps argue that the court’s analysis is internally consistent and legally flawed, as well.

Hofstra University law professor Joanna Grossman comments on a recent per curiam opinion by the U.S. Supreme Court in which it instructed the Alabama Supreme Court to obey the U.S. Constitution and give full effect to a lesbian couple’s adoption decree from Georgia. Grossman describes the facts leading up to the case and explains why the High Court ruled firmly as it did, and why the Alabama court was incorrect.

Cardozo Law professor Marci Hamilton describes two recent events that indicate that the United States remains dedicated to a culture of freedom and tolerance, rather than moving toward theocracy. As Hamilton explains, the federal government has taken action against the Fundamentalist Church of Jesus Christ of Latter-day Saints for establishing a theocracy on the border of Utah and Arizona, and also for money laundering and food stamp fraud.

Illinois Law dean and professor Vikram David Amar examines California’s Proposition 49—which seeks the voters’ approval for the California legislature to ratify an amendment to the federal Constitution to overturn the U.S. Supreme Court’s 2010 decision in Citizens United v. FEC—in order to shine light on what might be required to overturn the decision on a federal level. Amar argues that Proposition 49 highlights just how difficult it would be to craft a workable constitutional amendment to overturn Citizens United.

Cornell University law professor Sherry Colb considers the perspectives of both sides of the controversy over a relatively new California law requiring licensed pregnancy centers to prominently post a notice about the availability of free or low-cost abortion, contraception, and prenatal care. Colb offers a compelling narrative to illustrate each perspective, ultimately concluding that while she personally agrees with one side neither is “right” in a moral sense.

Hofstra University law professor Joanna Grossman comments on a recent decision by the U.S. Court of Appeals for the Sixth Circuit, in which the court affirmed a jury verdict in favor of a sexual harassment plaintiff. Grossman describes the facts leading up to the case and explains why the jury and the appellate court came to the correct conclusion as a matter of fact and law.

Chapman University law professor Ronald Rotunda describes how freedom—specifically freedom of speech—was recognized as important as far back as ancient Athens, and how it remains important in the United States today, not only for its inherent value but also in setting an example for the rest of the world to use. Rotunda argues that when the United States restricts speech, other countries will use our example to justify their own repression.

Cornell University law professor Michael Dorf explains why Republicans’ claims that President Obama lacks democratic legitimacy in appointing a successor to the late Justice Antonin Scalia. Dorf points out that the reasons offered thus far for refusing to confirm an Obama nominee seem to imply that originalism/formalism can be validated or invalidated by popular approval, even absent a constitutional amendment.

Cardozo Law professor Marci Hamilton explains why the pace of new state Religious Freedom Restoration Acts is slower in 2016 than in previous years. Hamilton points out that to pass these bills, legislators have to not only advocate for discrimination, but also for child endangerment—hard policies to sell.

In honor of the recently deceased Supreme Court Justice Antonin Scalia, Cardozo Law professor Marci Hamilton discusses the Court’s decision in Employment Div. v. Smith, in which Justice Scalia wrote for the majority holding that a law is constitutional under the Free Exercise Clause of the First Amendment if it is facially neutral and generally applied. Hamilton lauds the decision as striking the right balance between liberty and harm, and between religious diversity and religious tyranny.

Cornell University law professor Sherry Colb discusses a decision by the U.S. Court of Appeals for the Second Circuit holding that when police are outside the threshold of a home arresting a suspect who is inside the threshold, it is a “home arrest” requiring a warrant. Colb explains why the decision is significant in protecting the home as a space where a person can feel the highest degree of privacy and comfort, free from unreasonable government intrusions.

Hofstra University law professor Joanna Grossman discusses the effect that the U.S. Supreme Court’s decision in Young v. United Parcel Service has had on cases arising under the Pregnancy Discrimination Act (PDA), as well as the limitations of that decision. Grossman argues that while the decision helped give effect to the intended purpose of the PDA, it did not and could not expand the scope of the statute, which is what is now needed to adequately protect pregnant workers.

Illinois Law dean and law professor Vikram David Amar evaluates three people’s statements regarding America’s treatment of Muslims: President Obama, an Iowa businessman, and a local Muslim cleric (an imam). Amar points out that Donald Trump’s proposal that America ban all Muslims from entering the country is vastly underinclusive (because the great majority of violent acts in this country are perpetrated by non-Muslims), and at the same time very overinclusive (because the overwhelming majority of Muslims who want to enter the United States intend no harm)—two indicators of legal and moral unfairness.

Cardozo law professor Marci Hamilton comments on the use of religious terms in among the Republican presidential candidates, particularly terms that refer to a specific religio-political world view. Hamilton especially critiques Cruz’s and Rubio’s invocation of Ronald Reagan’s name, pointing out that Reagan tried to bring Americans together in his speeches, even in his references to God.

Cornell University law professor Michael Dorf considers an issue on which the U.S. Supreme Court recently heard oral argument: whether the First Amendment protects a government employee from adverse action based on the government’s mistaken belief that the employee was engaged in speech or association. Dorf highlights the nuances of the case and whether there is a meaningful difference between rule-guided conduct and reason-guided conduct.

Cornell University law professor Joseph Margulies discusses the problem of states executing death row inmates under laws subsequently found to be unconstitutional, as has happened in Texas and in Florida, and likely in many other cases. Margulies laments that the United States continues to experiment with capital punishment when experience demonstrates the procedures for imposing this irreversible sentence are rife with problems.

Former counsel to the president John W. Dean continues his discussion of the controversial investigative report by Al Jazeera Investigates that implicates several elite American athletes of illegal doping. Dean discusses the two lawsuits filed in federal court in the District of Columbia and the possible role an anti-SLAPP statute might play in those lawsuits.

Cardozo law professor Marci Hamilton a recent proposal by the Indiana legislature to update that state’s Religious Freedom Restoration Act (“RFRA”) and extend that law’s legal standard to other rights. Hamilton explains why this proposed change is based on an overly simplistic view of constitutional rights and is a bad idea.

Cornell University law professor Sherry Colb discusses the role of Pennsylvania Rule of Evidence 404 in the criminal trial against Bill Cosby. Colb argues that the rule against character evidence serves a specific purpose in “whodunit” cases (where the perpetrator is unknown) but that it may serve a different purpose in “what was done” cases, such as the present case against Cosby.

Cornell University law professor Michael Dorf comments on a case involving free speech on license plates that may reach the U.S. Supreme Court in the near future. As Dorf points out, if the Court agrees to hear the case, it will be the third major license plate case it has decided. Dorf argues that the appeals court in the present case most likely erred in failing to protect the plaintiff’s right against compelled speech, but a broadly written Supreme Court opinion reversing the lower court could potentially undermine anti-discrimination law.