The US Supreme Court Considers the Scope of the Automobile Exception

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Cornell University law professor Sherry F. Colb comments on a case the US Supreme Court recently agreed to hear regarding the scope of the automobile exception to the Fourth Amendment warrant requirement. Colb explains the facts leading up to the controversy, the arguments on both sides, and the unusual nature of the case. Colb points out that the Court was likely motivated to hear the case to resolve a question the case does not even squarely present, namely whether the presence of a car in a driveway is a reason not to apply the automobile exception.

Sex, Lies, and Trump’s Rollback of the Contraceptive Mandate

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SMU Dedman School of Law professor Joanna L. Grossman comments on the recent change in policy announced by the Trump administration rolling back the Affordable Care Act’s contraceptive mandate, allowing employers with religious or moral objections to exempt themselves. Grossman describes the history of access to contraception in the United States and the measures Trump has taken that have the purpose or effect of restricting access to contraception.

The Fall of Seriatim Opinions and the Rise of the Supreme Court

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Chapman University Fowler School of Law professor Ronald D. Rotunda describes the historic practice by the US Supreme Court of issuing seriatim opinions, where each justice wrote his own separate opinion, rather than the current practice of issuing an Opinion of the Court. Rotunda describes the role of Chief Justice John Marshall in changing the practice, which resulted in the most powerful Court in the world.

Can Government Prevent Hostile Listeners from “Shouting Down” Controversial Speakers?

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Illinois Law dean and professor Vikram David Amar and UC Davis Law emeritus professor Alan E. Brownstein propose and analyze a law to prevent hostile listeners from “shouting down” controversial speakers that, arguably, would pass constitutional muster. Amar and Brownstein do not fully agree on which standard of review should apply to the regulation they propose, but they do agree that the mere fact that a general law is applied to conventionally expressive conduct does not always justify increasing the standard of review applied to it.

What’s Different—And What Isn’t—About Travel Ban 3.0

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Cornell University law professor Michael C. Dorf describes some of the key similarities and differences between the most recent iteration of President Trump’s ban on entry to the US by certain foreign nationals (“Travel Ban 3.0”) and earlier versions, and considers whether these differences will affect the determination of the policy’s legality. Although the Supreme Court might not ultimately be the court that answers the question, Dorf points out that we may have an answer before too long.

Ideal Victims and the Damage of a Damage Free Victory

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Illinois law professor Lesley Wexler considers the how the public perceives victims of physical abuse who renounce the monetary rewards to which they are legally entitled. Wexler points to several high-profile cases in which the victim donated or did not seek monetary damages, and critiques the media for lauding the economic selflessness of these female assault victims in a way that obscures the important role of compensatory and punitive damages, particularly for victims who rely on those damages to seek to become whole.

Barbara Blaine Spoke Truth to Power

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Marci A. Hamilton, a professor and resident senior fellow in the Fox Leadership Program at the University of Pennsylvania, praises the work of the late Barbara Blaine, who worked tirelessly to expose the patterns of child sex abuse in the Catholic Church, which in turn revealed the same pattern in other settings. Hamilton extols Blaine’s accomplishments and calls upon us all to continue to fight for justice for sex abuse victims.

The Rise of Robo-Advisers

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Boston University law professor Tamar Frankel comments on the increased use in “robo-advisers”—machines that purport to offer investment advice and order the performance of their advice by securities trades. Frankel describes how the Securities and Exchange Commission has responded to the rise in robo-advisers and summarizes some of the legal challenges they present, particularly when used by brokers and by financial advisers.

Getting it Right: The Arizona Supreme Court Applies Marital Presumption to Same-Sex Spouse

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SMU Dedman School of Law professor Joanna L. Grossman comments on a recent decision by the Arizona Supreme Court that correctly applies the US Supreme Court’s reasoning in Obergefell v. Hodges to hold that the marital presumption applies to same-sex couples just as it applies to opposite-sex couples. Grossman provides a brief legal history of same-sex marriage and the attendant obligations and benefits and praises the Arizona court for its clear and well reasoned opinion.

Concern About DeVos’s Rescission of Obama Policy on Campus Rape

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Cornell University law professor Sherry F. Colb comments on the decision by Education Secretary Betsy DeVos to rescind the Obama-era Title IX guidance on campus sexual assault because it allegedly denies due process to students accused of rape. While acknowledging specific instances where accused students have been treated poorly, Colb argues that the existing guidelines are eminently sensible and defensible and that rescinding them rather than editing or modifying them goes well beyond what is necessary to address concerns for accused students. Colb focuses on two commonly attacked features of campus policy—the preponderance of the evidence standard and the affirmative consent requirement—and explains why they are good policy.

How First Amendment Speech Doctrine Ought to Be Created and Applied in the Colorado Baker/Gay Wedding Dispute at the Supreme Court

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Illinois Law dean Vikram David Amar and UC Davis Law emeritus professor Alan E. Brownstein point out that the US Supreme Court has no comprehensive doctrine on compelled speech under the First Amendment, especially as compared to its very nuanced doctrine on suppression of speech. Amar and Brownstein identify core elements that should comprise a comprehensive doctrine and call upon the Supreme Court to adopt similar guidelines when it decides an upcoming case, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, in which a baker challenges a Colorado public accommodations law on First Amendment grounds, citing compelled speech. Without taking a position on how this dispute should be resolved as a matter of social policy, Amar and Brownstein argue that the doctrinal framework they describe does not support rigorous review in this case.

Yes, the Political and Economic Issue of Our Time Really Is Inequality

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George Washington law professor and economist Neil H. Buchanan argues that economic inequality is the political and economic issue of our time, and now is the perfect opportunity for Democrats to push toward a solution. Buchanan decries the claim that the correct path is to triangulate between the policies of the left and the right and explains why now, more than ever, progressive policies are the best response.

Supreme Court of Israel Requires Ultra-Orthodox Men to Perform Military Service

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Cornell University law professor Michael C. Dorf comments on a recent decision by the Israel Supreme Court holding that the government’s policy of exempting Haredim (ultra-Orthodox Jews) from military service was unconstitutional discrimination. Dorf describes the background of the legal system in Israel and explains how the relationship between the court and the elected officials in that country might inform judicial review in other democracies.

Changing Places by Changing Ourselves

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Cornell University law professor Joseph Margulies describes the transformation of Olneyville, a low-income neighborhood of Providence, Rhode Island, as the result of comprehensive place-based solutions to crime and disorder. Margulies points out that the most difficult challenge to place-based strategies is politics and that before we can expect to meaningfully change places for the better, we must come to certain fundamental understandings of ourselves and our society.

Al Franken, Giant of the Senate

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John W. Dean, former counsel to President Richard Nixon, praises Senator Al Franken’s newest book, Al Franken, Giant of the Senate. Without giving spoilers, Dean shares a few reasons he recommends the book, in which Franken provides unique insight into our political system and demonstrates his capacity for doing the serious work of the US Senate and occasionally injecting it with appropriate touches of comedy.

Who Pays for Sex Abuse?

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Marci A. Hamilton, a professor and resident senior fellow in the Fox Leadership Program at the University of Pennsylvania, describes the enormous costs associated with child sex abuse that fall on the victims’ families, government welfare programs, and society. Hamilton points out that there is no comprehensive metric that considers all of the costs, but the ones that have been measured are staggering.

Should the Law Permit Sexual Contact Between Police and Suspects?

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Cornell University law professor Sherry F. Colb comments on the law in at least three states that permits police officers to have sexual contact with people they suspect of prostitution. Colb explains the rationale behind these laws and argues that under three prevailing philosophical approaches to the law—libertarian, feminist, and traditional morality-based—such contact should not be permissible.

Got Milk? Eleventh Circuit Holds That Discrimination Because of Employee’s Breastfeeding is Unlawful Discrimination

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SMU Dedman School of Law professor Joanna Grossman comments on a recent decision in which the US Court of Appeals for the Eleventh Circuit recognized that discrimination because of an employee’s breastfeeding constitutes illegal pregnancy discrimination. Grossman explains the facts leading up to the case and explains why the court found that the employer, the Tuscaloosa Police Department, had violated the employee’s rights under the Pregnancy Discrimination Act of 1978 and the Family and Medical Leave Act.

Can Robots Practice Law?

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Chapman University, Fowler School of Law, professor Ronald D. Rotunda comments on the laws regulating the practice of law, and specifically, defining (or not defining) what the practice of law means. Rotunda argues that despite (or because of) the difficulty of defining the practice of law, computers and technology are advancing the practice of law and the work of lawyers.

Political Impediments to Carving California into Three States, and Why Tim Draper Should Support the NPV Plan for Presidential Elections

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Illinois Law dean and professor Vikram David Amar continues his discussion of the proposal by Silicon Valley billionaire investor Tim Draper to break up California into three separate states. Amar describes several political obstacles to Draper’s proposal and explains how implementation of the National Popular Vote plan could actually help Draper achieve his goal of dividing the state.

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. Immediately prior to taking the position at Illinois, Amar served as the Senior Assoc... 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, and... more

Sherry F. Colb

Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell University. Colb teaches courses in constitutional criminal procedure, evidence, and animal rights. She has published 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 Judiciar... 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 four books on constitutional la... 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,  more

Marci A. Hamilton

Marci A. Hamilton is one of the country’s leading church-state scholars and the Fox Professor of Practice and Fox Family Pavilion Resident Senior Fellow in the Program for Research on Religion in the... more

David S. Kemp

David S. Kemp is an attorney and managing editor at Justia. He received his B.A. in Psychology from Rice University and his J.D. from the University of California, Berkeley, School of Law (Boalt Hall)... 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 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 Developmen... more

Ronald D. Rotunda

Ronald D. Rotunda is the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, at Chapman University, Fowler School of Law. He joined the faculty in 2008. Before that, he was Univ... more