Analysis and Commentary on Constitutional Law

Homespun Wisdom (and Wrongheadedness) in Iowa on the Treatment of Muslims

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.

Godly Rhetoric in Presidential Campaigns: Cruz, Rubio, and Reagan

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.

How Un-rule-y is the First Amendment?

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.

The Bottoson Effect

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.

Heading for The Dark Side of Journalism

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.

Bill Cosby and the Rule Against Character Evidence

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.

The Supreme Court Could Hear a Third License Plate Case

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.

Insight From Oregon

Cornell University law professor Joseph Margulies explains how the peaceful protesters at a federal facility in Oregon could advance the cause for criminal justice reform. Margulies reminds us that that the triggering event for the protest was an order by a federal judge that two ranchers serve a prison sentence mandated by federal statute that was far longer than the judge considered fair.

Act One of “The Dark Side”?

In this first of a series of columns, former counsel to the president John W. Dean comments on the Al Jazeera sports doping exposé and the two defamation actions filed this week by Ryan Howard and Ryan Zimmerman. Dean anticipates that these lawsuits might develop into a lengthy legal battle that puts American defamation law to the test.

Appealing and Unappealing Peeling: Two Takes on Nudity

Hofstra University law professor Joanna Grossman and Stanford University law professor Lawrence Friedman comment on the changing attitudes toward nudity over time in the United States from a social and legal standpoint. Grossman and Friedman point to two recent instances in the news that seem contradictory: the increasing openness of high schoolers when it comes to sexting one another and millennial men's reticence to be nude while changing or showering in locker rooms.

Distinction Without a Difference: Federal Court Says Sexual Orientation Discrimination Is Sex Discrimination

Hofstra University law professor Joanna Grossman discusses a recent decision by a federal district court denouncing the legal distinction between sex discrimination and sexual orientation discrimination. Grossman praises the reasoning behind the decision and expresses hope that other courts will follow suit in recognizing “as illusory and artificial” any distinction between the two brands of discrimination.

How One Might Have Answered Justice Scalia’s Questions (About the Mismatch Theory) at Oral Argument in the Fisher Case

Vikram David Amar, law professor and dean at Illinois Law, and Michael Schaps, a California civil litigation attorney, discuss Justice Scalia’s provocative comments during last week’s oral argument in Fisher v. University of Texas. Amar and Schaps point out that viewed in the most charitable light, Justice Scalia’s comments are actually an attempt to articulate an academic theory—known as mismatch theory—not simply bare racism. Though the authors are not persuaded of mismatch theory, they critique Scalia’s assumption that truth of the theory would compel the abolition of affirmative action altogether.

Is the Texas Ten Percent Plan “Race Neutral”?

In light of the oral argument before the U.S. Supreme Court in Fisher v. University of Texas at Austin, Cornell University law professor Michael Dorf considers whether the school’s Ten Percent Plan is “race neutral.” Dorf distinguishes race consciousness from racial classifications, and he points out that Justice Kennedy—the Court’s usual swing vote on such issues—has historically found that distinction to be significant.

Donald Trump and the Need for Civil, Accurate Discourse

Cardozo law professor Marci Hamilton argues that Donald Trump and his extreme comments illustrate the need for civil, accurate discourse, rather than blunderbuss and showmanship. Hamilton points to the work by the Program in Research on Religion and Urban Civil Society at the University of Pennsylvania, which is conducting a social experiment that shows that people from different sides of the political/religious divide can have a meaningful conversation and reach agreement for the common good.

Anger Management: Charlie Sheen’s Ex-Fiancée Sues Over Sheen’s Failure to Disclose HIV Status

Hofstra University law professor Joanna Grossman comments on a recent lawsuit by Charlie Sheen’s ex-fiancée seeking damages for Sheen’s failure to disclose his HIV status. Grossman discusses the nature of the complaint filed and describes how civil and criminal laws must balance the right of individuals to sexual privacy against interests such as public health.

Education Department Faults Illinois School District for Excluding Transgender Girl from Locker Room Changing Area

Cornell University law professor Sherry F. Colb comments on a finding by the U.S. Department of Education Office for Civil Rights that an Illinois school district had violated anti-discrimination laws by barring a transgender girl from showering and changing in the girls’ locker room without restrictions. Colb argues that perhaps the best solution for everyone may be to have individual showers for everyone, rather than singling out a single person or disregarding the privacy concerns of everyone.

Lessons From Princeton’s Struggles With Woodrow Wilson’s Racism

Cornell University law professor Michael Dorf considers whether Princeton should remove Woodrow Wilson’s name and likeness from the campus due to Wilson’s racist views and actions. Dorf points out that the question is complex for a number of reasons, and rather than offering an outright answer, he provides a framework for evaluating this and similar issues.

Meet our Columnists

Vikram David Amar
Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois Col... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan is an economist and legal scholar, a Professor of Law at The George Washington Univ... more

Sherry F. Colb
Sherry F. Colb

Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell University. Colb teac... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973.  Bef... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He has w... more

Joanna L. Grossman
Joanna L. Grossman

Joanna L. Grossman is the Sidney and Walter Siben Distinguished Professor of Family Law at the Mauri... more

Marci A. Hamilton
Marci A. Hamilton

Marci A. Hamilton is one of the leading church/state scholars in the United States and the Paul R. V... more

David S. Kemp
David S. Kemp

David S. Kemp is an attorney, writer, and editor at Justia. He received his B.A. in Psychology from... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of Record i... more

Anita Ramasastry
Anita Ramasastry

Anita Ramasastry is the UW Law Foundation Professor of Law at the University of Washington School of... more

Ronald D. Rotunda
Ronald D. Rotunda

Ronald D. Rotunda is the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, at... more