Analysis and Commentary on Constitutional Law

Discrimination Begets Discrimination: The Ninth Circuit Allows Prior Salary to Justify Paying Women Less Than Men for the Same Work

SMU Dedman School of Law professor Joanna Grossman comments on a recent decision by the U.S. Court of Appeals for the Ninth Circuit perpetuating pay disparities between men and women by allowing an employer to rely on prior salary in determining pay. Grossman explains why the use of salary history undermines the purpose of the Equal Pay Act of 1963 and argues that laws prohibiting use of salary history, like Massachusetts has, require an employer to think about how much the work is worth rather than how much the person is worth.

What We Really Mean by the Culture War

Cornell University law professor Joseph Margulies points out that teaching about religion is substantially different from promoting one religion at the expense of another, or of promoting religiosity at the expense of agnosticism or atheism. Margulies argues that a San Diego school district’s choice to teach about Islam promotes a safe climate of respect and toleration, notwithstanding claims that it has “surrendered” to Sharia law.

Mr. No-Government President Discovers the Government

Marci A. Hamilton, a Fox Distinguished Scholar in the Fox Leadership Program at the University of Pennsylvania, describes how the separation of powers built into U.S. democracy is working as it should to prevent abuses of power by, at this time, the executive. Hamilton points out that federalism—the balance of power between state and federal government—also plays a significant role in curbing abuses of power.

Another New Federalism Flashpoint: State and Local Laws Targeting Entities that Assist in “Building the Wall”

Illinois Law dean and professor Vikram David Amar comments on recent actions by state and local governments to oppose federal policies, such as the immigration and the wall along the U.S.–Mexico border. Amar argues that these attempts likely run contrary to the Supremacy Clause of the U.S. Constitution by attempting to interfere with the execution of federal policy.

Equality for All: Federal Appeals Court Holds in Hively v. Ivy Tech Community College That Title VII Prohibits LGBT Discrimination

SMU Dedman School of Law professor Joanna Grossman comments on a recent decision by the U.S. Court of Appeals for the Seventh Circuit, sitting en banc, in which it unequivocally held that Title VII prohibits LGBT discrimination. Grossman describes the history leading up to this momentous decision and applauds the court for getting it right.

Trump Wants Immunity

John W. Dean, former counsel to President Richard Nixon, comments on attempts by President Trump’s lawyers to defer civil lawsuits against him until after his presidency ends. Dean compares the lawsuit to similar ones filed against former Presidents Bill Clinton and Richard Nixon.

An English Teacher Corrects Shakespeare

Chapman University, Fowler School of Law, professor Ronald D. Rotunda critiques an English professor at Northern Arizona University for insisting that a student use the word “humankind” rather than “mankind.” Rotunda points out that the origin of the English word “man” encompasses both sexes and that for English professors (or any instructor) to force students to use certain words and shun others is an abuse of the power of words.

The Supreme Court Rejects Fake Facts in Capital Cases

Cornell University law professor Sherry F. Colb considers one recent instance in which the U.S. Supreme Court endorsed a standard because it was factually more accurate than a prior standard, and several other instances in which the Court has done the opposite. Colb points out that, unfortunately, the law often seeks facts that facilitate a desired outcome rather than facts a more just or correct outcome.

Vouchers, Charters and Public School Debt: Not Just Different Education Policy Priorities

Guest columnist and former U.S. Congressman Brad Miller argues that the Trump administration’s plans to expand charter schools and provide vouchers for religious and other private schools may violate the Contract Clause of the U.S. Constitution. Miller points out that by paying for charters out of traditional public schools’ funds, states have de-prioritized their obligations to the purchasers of public school bonds in violation of the Contract Clause.

The Children Be Damned . . .

Marci A. Hamilton, a Fox Distinguished Scholar in the Fox Leadership Program at the University of Pennsylvania, describes the numerous child-endangering bills that are being proposed in various states across the nation. Hamilton argues that we as a society need to create a culture that works for the best interest of all children.

Does the Juror Deliberation “Privilege” Work? Questioning the Supreme Court’s Assumptions

Cornell University law professor Sherry F. Colb comments on a recent decision in which the U.S. Supreme Court held that a juror’s use of racial stereotypes to vote for conviction may be used to invalidate the verdict, despite evidentiary rules that otherwise prohibit the use of juror testimony to challenge a verdict. Colb argues that the Supreme Court should have either extended the Sixth Amendment exception to cover other types of juror misconduct, or repealed the rule that prohibits the use of post-verdict juror testimony to impeach a verdict.

How to Drain the Swamp? Use a Flashlight

Chapman University Fowler School of Law professor Ronald D. Rotunda calls for the executive branch to shine a light into some areas of government that have been obscured in the past eight years, including the conduct of former IRS officer Lois Lerner, Operation Fast and Furious, and investigations by the offices of the inspectors general. Rotunda argues that the release of documents related to these and other issues will help us know if we should be worried about our government.

The Complexities of a “Motive” Analysis in Challenging President Trump’s Executive Order Regarding Entry to the United States

Illinois Law dean and professor Vikram David Amar and UC Davis Law emeritus professor Alan E. Brownstein explain the complexities behind analyzing the motive underlying legislation and executive orders. Specifically, Amar and Brownstein highlight the difficulty in courts’ using perceived motive to strike down President Trump’s executive order regarding entry to the United States.

Sympathy for the Comfortable: The New Conservative Theory of Compassion

George Washington law professor and economist Neil H. Buchanan explains in plain English what Mick Mulvaney meant when he attempted to justify President Trump’s budget proposal that would cut programs that help America’s most vulnerable, such as Meals on Wheels and subsidized school lunches for poor children. As Buchanan explains, Mulvaney’s explanation is based on a false notion that better-off people gain as much utility from each dollar as worse-off people receive from the same amount.

The Educational Function of Kabuki Confirmation Hearings

Cornell University law professor Michael C. Dorf explains the value of the confirmation hearing of Supreme Court nominee Neil Gorsuch, despite the tradition in such hearings of the nominee evading answering questions about the most divisive legal issues of the day. Dorf argues that the Gorsuch hearing provides a unique opportunity for bipartisan repudiation of President Trump’s irresponsible attacks on the judiciary.

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 Professor of Law and Charles Evans Hughes Scholar at Cornell University. Colb tea... 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 one of the country’s leading church-state scholars and the Fox Professor of Pra... more

David S. Kemp
David S. Kemp

David S. Kemp is an attorney and managing 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... 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