Articles Posted in Constitutional Law

Attorney David Kemp discusses the recent decision by the U.S. Court of Appeals for the Fourth Circuit striking down Virginia’s ban on same-sex marriage. He compares and contrasts that opinion to an opinion handed down last month by the Tenth Circuit striking down Utah’s equivalent law. Based on the majority and dissenting opinions, Kemp anticipates what might be the key issues if the case reaches the U.S. Supreme Court—an event that seems increasingly likely.

Cardozo Law professor Marci Hamilton comments on a recent statement by the Wisconsin Insurance Commissioner that purportedly applies the U.S. Supreme Court’s decision in Burwell v. Hobby Lobby Stores Inc. to that state’s law. Hamilton critiques the interpretation as misunderstanding the federal Religious Freedom Restoration Act (RFRA) and calls upon state courts not only to correctly understand the scope of the Hobby Lobby decision, but to reject the Hobby Lobby majority’s reasoning when interpreting their own state’s laws.

Cornell University law professor Sherry Colb discusses the U.S. Supreme Court’s recent decision in Burwell v. Hobby Lobby Stores Inc., and the nature of the respondents’ claim that IUDs and morning-after pills are abortifacients. Colb analogizes to the distinction between the culpability of direct violence and failure to rescue in order to illustrate that the respondents’ claims are moral rather than factual in basis.

Hofstra University law professor Joanna Grossman discusses the Equal Employment Opportunity Commission (EEOC)’s new Enforcement Guidance on pregnancy discrimination. Grossman provides an overview of the Pregnancy Discrimination Act of 1978, as well as a history of courts’ treatment of pregnancy discrimination claims. She describes how the new Guidance clarifies the Act and serves to help pregnant women begin work, continue working, and return to work throughout the reproductive process.

Ronald Rotunda, a Chapman University law professor, discusses why Congress should eliminate the federal ban on the export of American oil. Rotunda provides a background on the history of the Export Clause of the U.S. Constitution and explains why the original rationale for banning the export of oil no longer supports the continued ban today.

Professor Vikram David Amar, of U.C. Davis School of Law, explains why Justice Kennedy’s concurring opinion in Burwell v. Hobby Lobby Stores Inc. deserves heightened attention and weight. In this first of a two-part series of columns, Amar provides background on the roles and types of concurring opinions in 5-4 decisions and provides some historical examples of some key concurrences.

Guest columnist Courtney Minick comments on a recent decision by a federal district court judge striking down California’s death penalty. Minick describes the court’s reasoning and considers its possible implications.

George Washington University law professor and economist Neil Buchanan discusses the U.S. Supreme Court’s decision in Burwell v. Hobby Lobby Stores Inc., particularly whether it effectively compels all companies to adopt beliefs to increase profits and fulfill their fiduciary duties to their owners. Buchanan predicts that either we will see an increasing number of companies take this route to maximize profits, or we will want to investigate why more companies are not pursuing this attractive route to free market salvation.

Cornell University law professor Michael Dorf proposes eight different options for fixing the Religious Freedom Restoration Act (RFRA). Dorf suggests that open discussion of what was wrong with the U.S. Supreme Court’s recent decision in Burwell v. Hobby Lobby Stores Inc. can inform the public and opinion leaders about how to fix RFRA when the opportunity arises.

John W. Dean, former counsel to the president, continues his discussion of the U.S. government’s No-Fly List. In this second of a three-part series of columns, Dean focuses on the constitutional implications of the No-Fly List: deprivation, without due process, of one’s right to travel internationally and one’s reputation interest.

Cardozo Law professor Marci Hamilton discusses Wheaton College’s request to receive accommodation under the Religious Freedom Restoration Act (RFRA) to avoid providing some reproductive coverage for its female employees. Hamilton draws upon her own personal experience and points out that the recent controversies over RFRA in the U.S. Supreme Court have revealed that law’s true nature.

Hofstra University law professor Joanna Grossman discusses a recent decision by the U.S. Court of Appeals for the Tenth Circuit upholding a lower court’s invalidation of a Utah ban on same-sex marriage. Grossman points out that while state same-sex marriage bans have been invalidated in sixteen different rulings across the country, this decision marks the first time a federal appeals court has so ruled.

Cornell University law professor Michael Dorf comments on the U.S. Supreme Court’s recent decision in NLRB v. Noel Canning, in which the Court unanimously invalidated President Obama’s 2012 appointment of three members of the National Labor Relations Board. Dorf discusses the differences between rationales and implications of the five-Justice majority opinion authored by Justice Breyer and those of the four-Justice concurrence authored by Justice Scalia. Dorf argues that the Court’s rejection of political deadlock as a basis for recess appointments could prove to be an important weapon anytime the majority in the Senate is actively hostile to the President.

Cornell University law professor Sherry Colb discusses a recent case decided by the U.S. Supreme Court, Riley v. California, in which the Court nearly unanimously held that police may not examine the digital contents of an arrestee’s cell phone as part of a search incident to arrest. Colb describes the facts behind the two cases consolidated for the Court’s review, explains the precedents the Court relied upon in reaching its decision, and praises the Court for decisively embracing Fourth Amendment protection for digital privacy.

Marci Hamilton, a law professor at Cardozo School of Law, offers a strong critique of the U.S. Supreme Court’s decision in Burwell v. Hobby Lobby, in which the Court held that owners of closely held corporations may deny its employees the health coverage of contraceptives on the basis of the owners’ own religious beliefs. Hamilton explains why the Court’s interpretation of the Religious Freedom Restoration Act (RFRA) is problematic and calls for that legislation to be repealed as soon as possible.

U.C. Davis law professor Vikram David Amar continues his discussion of the California Legislature’s efforts to repeal, by ordinary legislation, provisions of a proposition that have been blocked indefinitely by a federal district court judge. Amar responds to arguments by the State Legislative Counsel that Proposition 187 can be repealed by simple legislation. He contends that the Legislative Counsel overreads the import of a judicial block on enforcement of the proposition and ignores the expressive effects of that law. Amar concludes by proposing that while he agrees that the repeal should go forward, it should follow prescribed procedures and include popular approval.

In this first of a three-part series of columns, former counsel to the president John W. Dean discusses government watch lists in the post-9/11 era—specifically No-Fly Lists. He explains the questionable means by which these No-Fly Lists are created and maintained, and he calls attention to the absence of any way for people erroneously listed to seek any legal recourse.

University of Washington law professor Anita Ramasastry discusses the growing personal use of unmanned aerial vehicles (colloquially known as drones) by individuals for spying and other nefarious reasons. She points out that most attention toward drones has focused on their use by the government, but their use by private citizens is increasingly becoming a concern. She discusses existing laws that might cover their use and proposes other ways the law can protect our privacy from individuals with high tech equipment like drones.

U.C. Davis law professor Vikram David Amar discusses efforts by California lawmakers to repeal provisions of the state code that a federal judge invalidated many years ago. Amar explains why those efforts, though understandable, reflect fundamental understandings of the scope of the legislature’s authority and the essence of judicial review.

Cornell University law professor Michael Dorf suggests how secular liberals might constructively communicate with religious conservatives. Dorf notes that respectful engagement with others whose religious views differ from one’s own tends to lead to more productive conversations than do humiliation or ridicule.