Articles Posted in Constitutional Law

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.

Why the Supreme Court Was Right to Stay out of the Pennsylvania Supreme Court Districting Case, and Why State Courts Have Important Roles in this Arena

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Illinois Law dean and professor Vikram David Amar explains why the US Supreme Court was right to leave undisturbed the recent congressional redistricting ruling by the Pennsylvania Supreme Court. Amar describes the important role (and limitations) of state courts and state legislative bodies in our federal system.

What Miranda Can Teach Us About Sexual Consent

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Cornell University law professor Sherry F. Colb compares the requirement that police officers advise suspects in custody of their Miranda rights with the proposal that we as a society adopt a "Yes means yes" requirement for sexual consent. Colb describes how many of the fears about Miranda never actually came to fruition and points out how both the strengths and weaknesses of Miranda can help us to figure out how best to design the rules defining sexual assault.

Lawyers and Judges Crossing the Bar in 2017

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Chapman University, Fowler School of Law, professor Ronald D. Rotunda commemorates some of the notable lawyers who died in 2017, including John Nolan, Jr., Michel, Aurillac, Willie, Stevenson Glanton, Gustavo Valdés, Hersh Wolch, the honorable Thomas Griesa, and others. Rotunda also notes one lawyer who had a near-death experience, Nikolai Gorokhov, a Russian lawyer who found key evidence of a $230 million corruption scandal involving high-ranking state officials.

The Constitution Under Trump: A Year-One Report Card

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Guest columnist Dean Falvy, a lecturer at the University of Washington School of Law, assesses how the Constitution is faring after one year of Donald Trump as president of the United States. Falvy evaluates Article I (Congress), Article II (the Executive Branch), Article III (the Judicial Branch), Article IV (federalism), the First Amendment (the press), and the Tenth Amendment (public opinion), giving each one a grade based on how well it is serving its purpose as intended by the framers.

The Constitutional Issues Driving the Events in the Hit Movie, The Post

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Illinois Law dean and professor Vikram David Amar and UC Davis Law emeritus professor Alan E. Brownstein describe and analyze the two main legal doctrines that give rise to the action in the blockbuster movie The Post, which chronicles the efforts of journalists at the Washington Post and the New York Times to publish the Pentagon Papers. As Amar and Brownstein explain, the rule against prior restraint and the collateral bar rule animated many of the motives, moves, and countermoves that were documented in the acclaimed film.

Travel Ban 3.0 Heads to the Supreme Court: Win or Lose the Battle, the Resistance is Winning the War

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Cornell University law professor Michael C. Dorf argues that regardless of the outcome of President Trump's "Travel Ban 3.0" before the US Supreme Court, the litigation challenging the Travel Ban should be regarded as a victory over Trump's effort to rule by diktat. In support of this argument, Dorf points out that the litigation makes it abundantly clear to the American people that Trump remains every ounce the same vile and petty would-be tyrant that he appeared on the campaign trail.

#MeToo, Time’s Up, and Restorative Justice

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Illinois Law professor Lesley Wexler comments on the 2018 Golden Globes acceptance speech by Laura Dern calling for restorative justice in the context of the #MeToo and Time's Up movements. Wexler analyzes the possible meaning of this somewhat ambiguous call to action, explaining that it could mean the restoration and reintegration of women who have suffered employment setbacks at the hands of their harassers and assaulters, and pointing out that it could also carry the more traditional notion of restorative justice, which includes the wrongdoers and the community as a whole to engage in "apologies, restitution, and acknowledgments of harm and injury."

The Trump Presidency and the #MeToo Movement

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Professor and resident senior fellow in the Fox Leadership Program at the University of Pennsylvania, Marci A. Hamilton likens the relationship between the #MeToo movement and Donald Trump’s presidency as a David versus Goliath moment. Hamilton describes the contrast in apparent values between the two but finds comfort in the #MeToo movement’s demonstration that there is still identifiable right and wrong that we as a society can see and discuss.

Does the Automobile Exception to the Warrant Requirement Extend to Private Driveways?

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Cornell University law professor Sherry F. Colb considers a question raised, but most likely not to be decided, in a criminal procedure case currently before the US Supreme Court. That case, Collins v. Virginia addresses the automobile exception to the Fourth Amendment warrant requirement, and Colb explores some reasons for eliminating the automobile exception altogether.

‘All the Money in the World,’ But Not Enough to Pay Male and Female Stars the Same?

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SMU Dedman School of Law professor Joanna L. Grossman comments on the most recent high-profile revelation of pay disparity between men and women—that between Mark Wahlberg and Michelle Williams in Ridley Scott’s “All the Money in the World.” Grossman describes the state of pay discrimination laws and while she commends Wahlberg for donating the $1.5 million difference in compensation to the Time’s Up fund, she points out that it was not Wahlberg’s responsibility to rectify this disparity. Grossman calls upon the director Ridley Scott, the agency that represented Williams, and all Hollywood studios and directors to right the wrong of gender pay inequality.

Two (But Only Two) Jeers for Enforcing the Federal Marijuana Law in Legalized States

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Cornell University law professor Michael C. Dorf comments on the recent announcement by Attorney General Sessions that the Trump Department of Justice was rescinding an Obama administration policy toward state-legal marijuana. Dorf argues that the policy shift breaks promises by then-candidate Trump and then-Senator Sessions, but that objections to the new policy on federalism grounds are largely misguided.

2017 SOL Reform Year in Review and How #MeToo Relates to Child Sex Abuse SOLs

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Marci A. Hamilton, a professor and resident senior fellow in the Fox Leadership Program at the University of Pennsylvania, reflects on the changes to civil and criminal statutes of limitations (SOLs) for child sex abuse across the United States in 2017, and points out how SOLs relate to the #MeToo movement exposing the breadth and pervasiveness of adult sexual assault and harassment. Hamilton praises the progress made over the past year and but calls upon legislators and politicians at all levels to take additional steps to protect children.

Did the Sexual Revolution Cause the Sexual Misconduct Revealed by #MeToo?

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Cornell University law professor Sherry F. Colb considers the claim by some people that the increase in accusations and occurrences of rape and other sexual misconduct is attributable to the sexual revolution of the late 1960s and mid-1970s. Colb points out that both rape and sexual misconduct existed well before the sexual revolution, and in fact the legal system until very recently either condoned or made it very difficult to prove rape (and categorically excluded the possibility of marital rape). In contrast, the sexual revolution was about liberating consenting adults to have sex with one another and giving women ownership over their own bodies.

The New Tax Law Punishes Blue States: Is That Constitutional?

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Cornell University law professor Michael C. Dorf considers whether the new tax law, which disproportionally affects “blue” states as compared to “red” states due to changes to the deductions for state and local taxes (SALT), is unconstitutional. Dorf explains some of the possible arguments against the law but ultimately concludes that due to difficulties of proof, courts probably won’t end up ruling that the SALT deductibility cap violates the First Amendment or a core principle of federalism.

Why Justice Gorsuch May Have Avoided the Word “Privacy” at the Carpenter Oral Argument

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Cornell University law professor Sherry F. Colb comments on the recent oral argument in Carpenter v. United States, in which the US Supreme Court will consider whether the Fourth Amendment requires the government to obtain a warrant before demanding that a cell phone service provider reveal location data about a target’s phone for a certain period of time. Colb notes that during oral argument, the Court’s newest justice, Justice Neil Gorsuch, conspicuously avoided using the word “privacy”—a choice that Colb suggests reflects his views on substantive due process and the rights that flow from that constitutional principle, such as abortion and physician assistance in dying.

Reflections on America’s Reckoning with Sexual Harassment

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SMU Dedman School of Law professor Joanna L. Grossman reflects on the wave of stories of sexual harassment and assault that have come to light in 2017. Grossman points out that sexual harassment of women, particularly in the workplace, is not a new phenomenon, but the sheer number of women sharing their stories today has emboldened others to come forward, and may even signal a cultural shift to address this pervasive problem. Grossman argues that true change will only come when institutional actors decide to hold themselves accountable for the way women are treated.

Three Big Constitutional Lessons of 2017 That Are Not Fully Appreciated

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Illinois Law dean and professor Vikram David Amar describes three important constitutional takeaway lessons from 2017. First, improper motive is the key to attacking many government actions, but it is a difficult ground on which to succeed. Second, the US Supreme Court seems to take a different position from that of lower courts on a number of issues. Finally, many norms that people assume are enshrined in the Constitution are actually not.

Facebook Messenger Kids—Good for Whom?

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University of Washington law professor Anita Ramasastry comments on Facebook’s recently announced messenger app for kids. Ramasastry describes the key features of Facebook’s new program and explores the privacy and safety concerns that arise with this business model. She calls upon policymakers or advocacy groups to weigh in, as well, anticipating that this will not be the only business model aimed at kids in this manner.

Liberty and Equality Sometimes Require Tragic Choices, Just Not in Masterpiece Cakeshop

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Cornell University law professor Michael C. Dorf explains why the Masterpiece Cakeshop case before the US Supreme Court—in which the Court will decide whether a baker may refuse to serve a gay couple based on his religious beliefs—does not present a difficult choice between liberty and equality. Rather, Dorf points out, the baker’s free speech claim in this case should be relatively easy to reject because a cake without an articulate message on it does not constitute the “speech” of the person who made it.

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... 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,... 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... 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... 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... 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, Nine to Five: How... 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... 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 Geren... 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... 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,... more