Articles Posted in Constitutional Law

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.

Cardozo law professor Marci Hamilton comments on a recently filed religious discrimination lawsuit the EEOC brought on behalf of several employees against two companies, United Health Programs of America, Inc. and Cost Containment Group, Inc. In that case, the two defendant companies are allegedly imposing their “Onionhead” practices on their employees and discriminating against those employees who object to those practices. Hamilton argues that the case illustrates what is at stake in the Hobby Lobby and Conestoga Wood cases currently before the U.S. Supreme Court, in which the Court is expected to resolve crucial questions about the scope of the Religious Freedom Restoration Act (RFRA) and its relationship to civil rights acts.

Cornell University law professor Sherry Colb comments on a recent decision by the U.S. Supreme Court invalidating Florida’s approach to identifying criminal convicts who are intellectually disabled and therefore constitutionally ineligible for the death penalty. Colb describes the facts and issues that brought the case before the Court and infers from the opinion that the Court may have a growing consciousness about those sentenced to death. Acknowledging also the strong arguments presented by the dissent, Colb concludes that essential difference between the majority and the dissent is a disagreement as to what is worse: to execute the wrong person to spare the wrong person from execution.

Chapman University law professor Ronald Rotunda critically discusses attempts to amend the First Amendment of the U.S. Constitution. Rotunda describes some of the alarming implications of the proposal in the Senate, which already has 41 cosponsors, and he warns that the passage of the proposal will lead to the taking away of important rights the First Amendment granted.

Guest columnist and Touro Law Center professor Rodger Citron comments on the litigation in New York over a rule prohibiting food-service establishments from serving sugary drinks in sizes larger than sixteen ounces. Citron describes the arguments put forth by each side and explains why the critical issue is whether the Board of Health's has the authority to promulgate such a rule.

Guest columnist and University of South Carolina law professor Seth Stoughton comments on the shifting marijuana laws throughout the United States and the implications for Fourth Amendment doctrine. Stoughton explains how marijuana laws in the United States have changed over time describes the resulting doctrinal uncertainty. He focuses specifically on the Fourth Amendment’s “automobile exception” in cases involving marijuana calls for legislatures and judges to clarify how police practices should be updated.

Cardozo Law School professor Marci Hamilton argues for the importance of academic freedom but distinguishes it from immunity from debate in the marketplace of ideas. She comments on a recent Freedom of Information Act (FOIA) request targeting University of Virginia School of Law professor Douglas Laycock for allegedly using university resources for anti-LGBT ends. Hamilton calls the formal FOIA request unnecessary but the intent to question how his public positions on various issues play out in the real world. Hamilton describes a number of positions Laycock has taken publicly that support the view that he is an advocate for extreme religious forces.

Cornell University law professor Michael Dorf discusses how the lower courts’ consistent rulings in favor of same-sex marriage might influence a decision by the U.S. Supreme Court. Dorf observes that every single judge to rule on the question has relied on the Court’s 2013 decision in United States v. Windsor for the conclusion that SSM bans are unconstitutional. He concludes that while the lower courts’ decisions have no binding effect on the Supreme Court, they might serve as a legal barometer of what is legally plausible and as conduits of public opinion.

Hofstra University law professor Joanna Grossman reflects on the progress of same-sex marriage in the United States over the past decade. She notes that on May 17, 2004, Massachusetts became the first state to issue marriage licenses to same-sex couples. Grossman describes how the movement gained momentum and how the U.S. Supreme Court’s 2013 decision in United States v. Windsor contributed substantially to that rapid change. She observes that as of now, 19 states and the District of Columbia permit same-sex marriage, and that number is only going to increase.

U.C. Davis law professors Vikram David Amar and Alan Brownstein express their surprise and disappointment at the U.S. Supreme Court’s recent ruling in Town of Greece v. Galloway, upholding a practice of starting town board meetings with a prayer. Amar and Brownstein argue that the decision inadequately addresses legitimate concerns over the plaintiff challengers’ equality- and liberty-based arguments. They conclude that Justice Kennedy, who authored the opinion, must view reality quite differently from how he did when he authored the majority opinion in Lee v. Weisman and struck down state-sponsored prayers at public middle and high school graduations.

Hofstra law professor Joanna Grossman comments on a federal lawsuit by a conservative group seeking to “expose” the U.S. Department of Justice as having been taken over by gay and lesbian employees. Grossman compares the attempt to 1950s-era McCarthyism and the largely successful effort to purge the federal government of gays and communists at that time. She argues that the district court in this case correctly found that the DOJ was justified in refusing to release sensitive documents pertaining to the sexual orientations of its employees.

Ronald Rotunda, law professor at Chapman University, explains why the U.S. Supreme Court’s recent decision in Town of Greece v. Galloway fits solidly within precedent and does not expand it. Rotunda describes the precedential cases on point and argues that Marsh v. Chambers—the Court’s 1983 decision holding that legislative prayers were a long, consistent, historical practice—ultimately determined the outcome of Galloway.

Justia columnist and Cardozo law professor Marci Hamilton argues that the effects of Mississippi’s recent passage of a Religious Freedom Restoration Act (RFRA) should inform the U.S. Supreme Court as it presently considers two cases arising under the federal RFRA, Hobby Lobby and Conestoga Wood. Hamilton points out that the new Mississippi law has ignited major conflict between businesses that simply want to do business with willing customers and those who want to impose their beliefs on employees and customers. Hamilton cautions that if the Supreme Court makes the federal RFRA’s language to applicable to organizations like Hobby Lobby and Conestoga Wood, it will surely cause national unrest.

Justia columnist and Chapman law professor Ronald Rotunda discusses a Ninth Circuit case holding that a public school could permit students to wear t-shirts bearing the Mexican flag while banning students from wearing shirts with an American flag. Rotunda argues that the Ninth Circuit’s reasoning runs counter to the language and logic of the U.S. Supreme Court case Tinker v. Des Moines Independent School District and its progeny, and effectively sides in favor of the heckler’s veto.

Justia columnist and U.C. Davis law professor Vikram David Amar discusses the U.S. Supreme Court’s recent decision in Schuette v. Coalition to Defend Affirmative Action upholding the Michigan state constitutional ban on race-based affirmative action. Amar explains how the Court’s 2003 decision in Grutter v. Bollinger—widely regarded as a victory for proponents of affirmative action programs—paradoxically contributed to the outcome in Schuette. Amar concludes that while diversity is a worthwhile rationale for race-based admissions programs, minority students would be better served if that rationale supplemented, rather than a replaced, the original remedial purpose of such programs.

In the second of a two-part series of columns, Justia columnist and Cornell law professor Sherry Colb continues her discussion of a Fourth Amendment case before the U.S. Supreme Court, Heien v. North Carolina. She explains the history and trajectory of the “good faith” exception to the exclusionary rule and predicts that the Court will apply that exception in this case. However, Colb suggests that even doing so might still narrow the scope of the Fourth Amendment’s protections as effectively as would deciding the case directly on the substance of the Fourth Amendment.

Justia columnist and former counsel to the president John Dean implores the Supreme Court to end its rampage against election laws, beginning with ruling properly in Susan B. Anthony List v. Driehaus. In that case, in which the Supreme Court heard oral arguments last week, two political action committees are challenging an Ohio law that criminalizes false statements in a political contest. Dean compares the state law to defamation law, which he argues is similarly impotent yet faces no such legal challenge, and he calls for an end to the recent trend of Supreme Court decisions effectively dismantling American election laws.