Analysis and Commentary on Constitutional Law
Trump has Unleashed Forces that Put the Vulnerable at Risk, Which Means the Private Sphere Will Have to Step Up to Protect Them

Marci A. Hamilton, a Fox Distinguished Scholar in the Program for Research on Religion at the University of Pennsylvania, describes three individuals named to lead Donald Trump’s presidency who will threaten already-vulnerable communities. Hamilton argues that Mike Pence, Stephen Bannon, and Jeffrey Sessions are likely to reduce or eliminate the rights of gays, women, minorities, and children over the next four years unless the private sector steps up.

Labeling Moderate Muslims As Anti-Muslim Extremists

Chapman University, Fowler School of Law, professor Ronald D. Rotunda discusses the controversial designation of Maajid Nawaz, a practicing Muslim, and Ayaan Hirsi Ali, a Somali-born former Muslim, as “hateful extremists” by the Southern Poverty Law Center (SPLC). Rotunda argues that SPLC should reconsider its criteria for labeling someone an extremist, and he points out ways in which SPLC’s labeling system is inconsistent and misguided.

Liberal Activism in the Age of Trump

Cornell University law professor Michael C. Dorf shares some of the lessons he has learned as a vegan animal rights advocate, and explains how they apply to other policy areas. In particular, Dorf argues that in order to build a world in which presidential candidates do not pander to humanity’s basest otherizing instincts, we should aim to persuade our fellow humans of our point of view, not merely to organize to outvote them.

Raise the Rainbow Flag: Federal Court Rules that Title VII Bans Sexual Orientation Discrimination

SMU Dedman School of Law professor Joanna L. Grossman comments on a recent decision by a federal district court in Pennsylvania holding that Title VII bans sexual orientation discrimination. Grossman describes the gradual recognition of sexual orientation discrimination as a cognizable injury under Title VII and praises the court for coming to the correct conclusion.

Constitutional Lessons From Comey’s Unwise “October Surprise” Decision to Comment on Clinton Investigation Yet Again

Illinois law dean and law professor Vikram David Amar describes three takeaway lessons from FBI Director James Comey’s decision to comment on the ongoing Clinton email investigation a second time. Amar argues that (1) with respect to investigators, sometimes less formal independence means more latitude to act out, (2) the FBI director should not operate outside of DOJ bounds, and (3) the DOJ policy of not commenting on ongoing investigations arises from the Constitution.

Two Big Legal Misconceptions That Have Recently Arisen in the Presidential Race

Illinois Law dean Vikram David Amar and California civil litigation attorney Michael Schaps address two common misconceptions about the relationship between criminal law and politics that recently arose in the presidential race. Amar and Schaps explain first why the presumption of innocence does not apply to politics, and second, why the president actually does have the power to order prosecutions.

The Supreme Court Considers Whether to Pierce Jury Secrecy for Evidence of Racial Bias

Cornell University law professor Sherry F. Colb considers the arguments on both sides of a difficult question currently before the Supreme Court—whether a defendant is entitled to use juror testimony to impeach a verdict based on racial bias, notwithstanding a contrary rule of evidence. Colb describes the facts leading up to the case and discusses the jurisprudence that will most likely affect the justices’ ultimate decision.

Allocating Burdens of Proof in a Criminal Case: An Arizona Decision Raises Questions

Cornell University law professor Sherry F. Colb comments on a recent decision by the Arizona Supreme Court holding that a state statute properly created an affirmative defense to sexual abuse or child molestation when it placed the burden of proving no sexual motive on the defendant. Colb describes the court’s reasoning and explains why the U.S. Supreme Court should revisit its jurisprudence affirmative defenses to crimes and hold that some conduct may simply not be classified as an affirmative defense to be proved by the defendant in a criminal case.

Do Fourth Amendment Protections Vanish After an Indictment? The Manuel v. Joliet Case on the Supreme Court’s Docket

University of Illinois Law dean and law professor Vikram David Amar comments on a case in which the Supreme Court heard oral arguments this week. In that case—Manuel v. Joliet—the Court will consider whether an individual’s Fourth Amendment right against unreasonable seizure continues after an indictment has issued, thereby allowing a malicious prosecution claim based on the Fourth Amendment. Amar argues that the case highlights some unusual features of Supreme Court practice, as well as some important aspects of constitutional law.

Timothy Dolan Implements the Penn State Playbook for Child Sex Abuse Victims: The Best Argument Yet for SOL Reform

Marci Hamilton, a Fox Distinguished Scholar in the Program for Research on Religion at the University of Pennsylvania, comments on the recent announcement by Cardinal Timothy Dolan of an Independent Reconciliation and Compensation Commission intended to help some clergy sex abuse victims in the New York City Archdiocese. Hamilton describes Dolan’s mixed record on justice for sex abuse victims but hails the latest development as a step in the right direction.

Indiana Court Rules in Favor of Cell Phone History Privacy

Cornell University law professor Sherry Colb comments on a recent decision by the Court of Appeals of Indiana, holding that police violated their suspect’s Fourth Amendment rights by acquiring, without a warrant, the suspect’s cell site information from his cell phone provider. Colb explains the Indiana court’s reasoning and discusses the evolving law regarding people’s privacy expectations in information their cell phones store and transmit.

In a Case with Blockbuster Potential, Detroit School Children Assert a Federal Constitutional Right to Literacy

University of Illinois dean and law professor Vikram David Amar takes an early look at Gary B. v. Snyder, a case recently filed in federal district court that addresses a child’s fundamental right to literacy. Amar explains how the timing may be ideal for a case of this nature, should it ultimately reach the Supreme Court, since the Court seems increasingly willing to recognize new liberties not mentioned in the Constitution, among other compelling reasons.

The Future of the Supreme Court, Regardless of Who Wins the Election

Cornell University law professor Michael C. Dorf explains what can be deduced about the Supreme Court's future, even before the 2016 US presidential election. Dorf references the role that the Court plays in American public life while also offering notable examples of areas where the Court has little to no say. Additionally, Dorf reminds readers that many more cases are decided unanimously than by a single vote and that it is difficult to predict future ideological divisions among justices, regardless of whether they were nominated by a Republican or Democratic president.

The Problem With the Texas Federal Court’s Nationwide Order Regarding Bathroom Access for Transgender Students

Illinois Law dean and professor Vikram David Amar and U.C. Davis Law professor Courtney Joslin discuss a recent decision by a federal district court in Texas issuing a nationwide order regarding bathroom access for transgender students. Amar and Joslin explain why the order almost certainly oversteps that court’s authority without providing any reasons or analysis to justify its overbroad relief.

The Re-making of America’s Cities by Religious Organizations and the Department of Justice

Marci Hamilton, a Fox Distinguished Scholar in the Program for Research on Religion at the University of Pennsylvania, denounces the involvement of the federal government in local land use issues through the Religious Land Use and Institutionalized Persons Act (RLUIPA). Hamilton argues that RLUIPA incorrectly treats neutral, generally applicable land use decisions identically with discriminatory land use decisions.

Seventh Circuit Criticizes but Affirms Title VII Precedent Excluding Sexual Orientation

Attorney and editor at Justia, Sarah Andropoulos comments on a recent decision by a panel of the U.S. Court of Appeals for the Seventh Circuit criticizing but affirming courts’ exclusion of sexual orientation discrimination from protection under Title VII. As Andropoulos explains, the panel’s reasoning is somewhat convoluted, and its conclusion does not seem to follow from its logic.

The Scandalous Religious Liberty Project of this Era: Rights to Discriminate, Harass, and Harm at Will

A Fox Distinguished Scholar in the Program for Research on Religion at the University of Pennsylvania, Marci Hamilton comments on disclosure requirement and the non-discrimination component of California SB-1146. Hamilton argues that religious entities continue to demand the freedom to discriminate and harass, while insisting on calling it “religious liberty.”

Is Taking Blood from a Dog a “Search” of the Dog’s Owner?

In light of a recent decision by the Oregon Supreme Court, Cornell University law professor Sherry F. Colb considers whether taking blood from a dog constitutes a search of the dog’s owner for Fourth Amendment purposes. Colb identifies good and bad features of the court’s opinion and expresses what, in her view, would have been the ideal resolution of the case.

Meet our Columnists
Vikram David Amar
Vikram David Amar

Vikram David Amar is a Distinguished Professor of Law at UC Davis School of Law and a Professor... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan, an economist and legal scholar, is a visiting professor at both Osgoode Hall... more

John Dean
John Dean

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

Michael C. Dorf
Michael C. Dorf

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

Samuel Estreicher
Samuel Estreicher

Samuel Estreicher is Dwight D. Opperman Professor of Law and Director of the Center of Labor and... more

Leslie C. Griffin
Leslie C. Griffin

Dr. Leslie C. Griffin is the William S. Boyd Professor of Law at the University of Nevada, Las... more

Joanna L. Grossman
Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School... more

Marci A. Hamilton
Marci A. Hamilton

Professor Marci A. Hamilton is a Professor of Practice in Political Science at the University of... more

Joseph Margulies
Joseph Margulies

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

Austin Sarat
Austin Sarat

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at... more

Laurence H. Tribe
Laurence H. Tribe

Laurence H. Tribe is the Carl M. Loeb University Professor Emeritus at Harvard University and... more

Lesley Wexler
Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately... more