Analysis and Commentary on Constitutional Law

R.I.P. Ron Rotunda—A Man Responsible for Watergate’s Most Lasting Positive Impact

Former White House counsel John W. Dean describes the incredible legacy of fellow Verdict columnist, Professor Ronald D. Rotunda, who passed away unexpectedly earlier this week. Dean explains how he came to know Rotunda—through the Watergate hearings—and Rotunda’s critical role in developing the modern-day ethics rules that govern lawyers (“post-Watergate morality”). A prolific writer, Rotunda is perhaps best known for co-authoring the revered Legal Ethics: The Lawyer’s Deskbook on Professional Responsibility, as well as a highly regarded treatise on constitutional law.

2020 Presidential Election Legal Maneuvering: Prominent Lawyers and Law Professors File Lawsuit Challenging Winner-Take-All Method Used by Texas (and Most Other States) to Pick Presidential Electors

Illinois Law dean and professor Vikram David Amar comments on a lawsuit recently filed in Texas challenging the winner-take-all method by which Texas (and other states) administer presidential elections. Amar explains the benefits and drawbacks of the method and why the lawsuit is unlikely to elicit changes in Texas or elsewhere.

Supreme Court Divides Over What a Law Is

Cornell University law professor Michael C. Dorf comments on a recent sharply divided decision by the US Supreme Court in Patchak v. Zinke, in which Court considered whether a particular piece of legislation actually constitutes a law. Dorf explains why the issue was so difficult and points out some of the flaws in reasoning by both the plurality and the dissent.

Maybe He’s Just a Bum

Cornell University law professor Joseph Margulies considers the contention that President Trump's frequent tweets criticizing the ongoing investigation by Special Counsel Mueller and others are an assault on the "rule of law." Margulies notes that the prevailing view on this rather nebulous concept seems to be that the law must be allowed to operate without criticism from anyone it targets. Not only is this interpretation overly literal and simplistic, Margulies argues, President Trump’s criticism also does not amount to such an assault. The president’s attempts to interfere with the ongoing investigation, his order for Special Counsel Mueller to be fired, and other actions, on the other hand, come far closer to constituting an (attempted) assault on the rule of law.

Take a Flying Leap: The Second Circuit Holds That Skydiving Instructor Can Sue for Sexual Orientation Discrimination Under Title VII

SMU Dedman School of Law professor Joanna Grossman comments on a decision by the US Court of Appeals for the Second Circuit, sitting en banc, holding that sexual orientation discrimination is an actionable form of sex discrimination under Title VII of the Civil Rights Act of 1964. Grossman explains the significance of the holding and describes the circuitous route federal courts have taken to finally arrive at that common-sense conclusion.

Pushback by Legislators Against Judges Illustrates the Overriding Importance of Legislative Elections

Illinois Law dean and professor Vikram David Amar comments on the phenomenon by legislators on judges for alleged "activism." Amar argues that when the attacks on judicial independence move from seeking to limit jurisdiction or undo particular rulings to attempting to remove jurists themselves, although such attacks may not "seem" right, they are (perhaps oddly) legal. He points out that state constitutions operate not just in the larger context of morality and justice, but also in the larger context of the US Constitution. Ultimately, Amar explains, the most important decisions are made not by judges or even legislators, but by voters, when they elect people to the political branches.

Did Trump Inadvertently Make Banning Dreamers Unconstitutional?

George Washington law professor and economist Neil H. Buchanan comments on the apparent conflict between President Trump's declaration that the Deferred Action for Childhood Arrivals (DACA) program is unconstitutional and his decision to delay ending it. Buchanan considers whether the inconsistent positions with respect to the program actually affect the constitutional options available to him.

Mass Shootings and the Supreme Court

Cornell University law professor Michael C. Dorf describes the underappreciated role of the US Supreme Court in shaping public opinion and discussion of gun regulations. Specifically, Dorf explains that the Court's seminal decisions in District of Columbia v. Heller and McDonald v. City of Chicago have symbolic importance beyond their literal holdings, giving gun rights proponents strong rhetoric, though not strong legal basis, for an absolutist position.

Do Defendants Have the Right to Make Bad Decisions?

Cornell University law professor Sherry F. Colb comments on the case before the US Supreme Court, McCoy v. Louisiana, in which the Court will decide whether a criminal defendant has a Sixth Amendment right to stop his attorney from announcing to a jury that his client killed the victims for whose murder he is standing trial. Colb considers the argument that the lawyer's behavior constituted deficient performance counsel and argues that in that case, the defendant's conviction should be reversed and remanded for a new trial.

Why the Supreme Court Was Right to Stay out of the Pennsylvania Supreme Court Districting Case, and Why State Courts Have Important Roles in this Arena

Illinois Law dean and professor Vikram David Amar explains why the US Supreme Court was right to leave undisturbed the recent congressional redistricting ruling by the Pennsylvania Supreme Court. Amar describes the important role (and limitations) of state courts and state legislative bodies in our federal system.

What Miranda Can Teach Us About Sexual Consent

Cornell University law professor Sherry F. Colb compares the requirement that police officers advise suspects in custody of their Miranda rights with the proposal that we as a society adopt a "Yes means yes" requirement for sexual consent. Colb describes how many of the fears about Miranda never actually came to fruition and points out how both the strengths and weaknesses of Miranda can help us to figure out how best to design the rules defining sexual assault.

Lawyers and Judges Crossing the Bar in 2017

Chapman University, Fowler School of Law, professor Ronald D. Rotunda commemorates some of the notable lawyers who died in 2017, including John Nolan, Jr., Michel, Aurillac, Willie, Stevenson Glanton, Gustavo Valdés, Hersh Wolch, the honorable Thomas Griesa, and others. Rotunda also notes one lawyer who had a near-death experience, Nikolai Gorokhov, a Russian lawyer who found key evidence of a $230 million corruption scandal involving high-ranking state officials.

The Constitution Under Trump: A Year-One Report Card

Guest columnist Dean Falvy, a lecturer at the University of Washington School of Law, assesses how the Constitution is faring after one year of Donald Trump as president of the United States. Falvy evaluates Article I (Congress), Article II (the Executive Branch), Article III (the Judicial Branch), Article IV (federalism), the First Amendment (the press), and the Tenth Amendment (public opinion), giving each one a grade based on how well it is serving its purpose as intended by the framers.

The Constitutional Issues Driving the Events in the Hit Movie, The Post

Illinois Law dean and professor Vikram David Amar and UC Davis Law emeritus professor Alan E. Brownstein describe and analyze the two main legal doctrines that give rise to the action in the blockbuster movie The Post, which chronicles the efforts of journalists at the Washington Post and the New York Times to publish the Pentagon Papers. As Amar and Brownstein explain, the rule against prior restraint and the collateral bar rule animated many of the motives, moves, and countermoves that were documented in the acclaimed film.

Travel Ban 3.0 Heads to the Supreme Court: Win or Lose the Battle, the Resistance is Winning the War

Cornell University law professor Michael C. Dorf argues that regardless of the outcome of President Trump's "Travel Ban 3.0" before the US Supreme Court, the litigation challenging the Travel Ban should be regarded as a victory over Trump's effort to rule by diktat. In support of this argument, Dorf points out that the litigation makes it abundantly clear to the American people that Trump remains every ounce the same vile and petty would-be tyrant that he appeared on the campaign trail.

#MeToo, Time’s Up, and Restorative Justice

Illinois Law professor Lesley Wexler comments on the 2018 Golden Globes acceptance speech by Laura Dern calling for restorative justice in the context of the #MeToo and Time's Up movements. Wexler analyzes the possible meaning of this somewhat ambiguous call to action, explaining that it could mean the restoration and reintegration of women who have suffered employment setbacks at the hands of their harassers and assaulters, and pointing out that it could also carry the more traditional notion of restorative justice, which includes the wrongdoers and the community as a whole to engage in "apologies, restitution, and acknowledgments of harm and injury."

The Trump Presidency and the #MeToo Movement

Professor and resident senior fellow in the Fox Leadership Program at the University of Pennsylvania, Marci A. Hamilton likens the relationship between the #MeToo movement and Donald Trump’s presidency as a David versus Goliath moment. Hamilton describes the contrast in apparent values between the two but finds comfort in the #MeToo movement’s demonstration that there is still identifiable right and wrong that we as a society can see and discuss.

Does the Automobile Exception to the Warrant Requirement Extend to Private Driveways?

Cornell University law professor Sherry F. Colb considers a question raised, but most likely not to be decided, in a criminal procedure case currently before the US Supreme Court. That case, Collins v. Virginia addresses the automobile exception to the Fourth Amendment warrant requirement, and Colb explores some reasons for eliminating the automobile exception altogether.

‘All the Money in the World,’ But Not Enough to Pay Male and Female Stars the Same?

SMU Dedman School of Law professor Joanna L. Grossman comments on the most recent high-profile revelation of pay disparity between men and women—that between Mark Wahlberg and Michelle Williams in Ridley Scott’s “All the Money in the World.” Grossman describes the state of pay discrimination laws and while she commends Wahlberg for donating the $1.5 million difference in compensation to the Time’s Up fund, she points out that it was not Wahlberg’s responsibility to rectify this disparity. Grossman calls upon the director Ridley Scott, the agency that represented Williams, and all Hollywood studios and directors to right the wrong of gender pay inequality.

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 Co... more

Neil H. Buchanan
Neil H. Buchanan

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

Sherry F. Colb
Sherry F. Colb

Sherry F. Colb is the C.S. Wong Professor of Law at Cornell University. Colb teaches courses in con... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973. Befo... 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 Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School of L... more

Marci A. Hamilton
Marci A. Hamilton

MARCI A. HAMILTON is the Robert A. Fox Leadership Program Professor of Practice, and Fox Family Pavi... more

Joseph Margulies
Joseph Margulies

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

Anita Ramasastry
Anita Ramasastry

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

Lesley Wexler
Lesley Wexler

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