Analysis and Commentary on Constitutional Law
The Vexing Nature of California’s Attempt to Protect Free Speech Through its Anti-SLAPP Statute

University of Illinois dean and law professor Vikram David Amar comments on a recent case that highlights the challenging nature of California’s attempt to protect free speech through its anti-SLAPP statute. Amar describes the background of the case as well as the larger problems that arise when applying the Anti-SLAPP law to discrimination and harassment lawsuits.

What Do the Satanic Temple and Jehovah’s Witnesses Have in Common? They Are Champions Against Government Inculcation of Belief

Marci Hamilton, a Fox Distinguished Scholar in the Program for Research on Religion at the University of Pennsylvania, explains how the Satanic Temple is fighting the same fight Jehovah’s Witnesses started—to keep the government from imposing tenets of any specific religion on all citizens despite their faith. Hamilton describes the history of this issue in the United States and discusses the current lawsuit involving the Satanic Temple.

An Open Letter to the Change-Maker Hillary Rodham Clinton on Behalf of Sexual Abuse Victims in the United States

A Fox Distinguished Scholar in the Program for Research on Religion at the University of Pennsylvania, Marci Hamilton writes an open letter to Democratic Presidential Candidate Hillary Clinton on behalf of sexual abuse victims around the country. Hamilton asks Clinton what she will do as President of the United States to address the problem of child sex abuse and to help improve victims’ access to justice.

Chevron Deference and the Proposed “Separation of Powers Restoration Act of 2016”: A Sign of the Times

Illinois Law dean and professor Vikram David Amar comments on the Separation of Powers Restoration Act of 2016, a bill that, if passed, would undo the U.S. Supreme Court’s ruling in Chevron U.S.A. v. Natural Resources Defense Council. Amar points out that support for the doctrine of Chevron deference has fluctuated based on which political party occupies the White House, and there may even be a constitutional argument against Chevron’s preference for agencies over courts.

Balancing Teachers’ Liberty Against Students’ Right to Unbiased Education

Antonio G. Sepulveda, Carlos Bolonha, and Igor De Lazari comment on a law recently passed by the house of representatives of the Brazilian state of Alagoas—over the governor’s veto—that places certain restrictions on teachers’ autonomy in the classroom. Sepulveda, Bolonha, and De Lazari discuss the purpose of the law and the criticism leveled against it and draw upon United States federal case law as a basis for analysis.

Three Important Constitutional Lessons to Take From FBI Director Comey’s Statements About Hillary Clinton’s Email Management

Illinois Law dean and professor Vikram David Amar describes three lessons we should take from FBI Director Comey’s statements about Hillary Clinton’s email management. First, Amar points out that the president is the ultimate decisionmaker when it comes to all criminal prosecutions. Second, he argues that there are other ways that Republican leaders could seek to punish Ms. Clinton for what they believe to be wrongdoing—such as the impeachment process. Finally, Amar suggests that to prevent Republicans (or others) from doggedly trying to prosecute Ms. Clinton for years to come, regardless of the outcome of the presidential election, President Obama could pardon her just before he leaves office, as other presidents have done in numerous instances.

What’s the Matter With “Bomb Robots”?

In light of recent events in Dallas, Texas, Cornell University law professor Michael C. Dorf considers the use by local police of a “bomb robot” to kill the man who shot twelve police officers and two civilians. In particular, Dorf addresses (1) whether the use of the bomb robot represents an important change in policing, (2) whether the robot is a military tool inappropriately used in a domestic policing situation, and (3) whether its use in this instance violated the Constitution.

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Cornell University law professor Joseph Margulies reacts to the lack of response by many important people and organizations to recent shootings by police of Alton Sterling in Baton Rouge, Louisiana, and Philando Castile in Falcon Heights, Minnesota. Margulies points out that when leadership is silent on an issue, people will take to the streets to try to rectify it, often perpetuating violence.

Mississippi, the First Amendment Defense Act, Accommodation, and Apartheid

Cardozo Law professor Marci Hamilton comments on Mississippi’s latest law stigmatizing and marginalizing the LGBTQ community, and compares it to the federal First Amendment Defense Act. Hamilton argues that these divisive and discriminatory laws resemble apartheid in South Africa in that they are purported to be accommodations but in fact are simply immoral and wrong.

Birchfield v. North Dakota: An Acceptable Compromise

Cornell University law professor Sherry F. Colb comments on the U.S. Supreme Court’s recent decision in Birchfield v. North Dakota, in which the Court held that states may criminalize the refusal to take a breathalyzer test but may not criminalize the refusal to take a blood test, absent a warrant, as an ordinary incident of an arrest for driving while impaired. Colb explains why the Court distinguished the two types of tests and argues that the decision effectively balances competing interests in public safety and individual privacy.

The TRAP Door Closes: The Supreme Court Invalidates Texas’s HB 2, Which Unduly Burdens Access to Abortion

SMU Dedman School of Law Professor Joanna Grossman comments on the U.S. Supreme Court’s recent decision in Whole Woman’s Health v. Hellerstedt, in which the Court struck down certain restrictions on abortion clinics that imposed an undue burden on women’s constitutional right of access to abortion. Grossman describes the history of abortion access in the United States and how the Court’s decision in Whole Woman’s Health fits within that history.

Justice Kennedy’s Majority Opinion in the Fisher Affirmative Action Ruling Muddles Even as It Illuminates

Dean and law professor at Illinois Law, Vikram David Amar comments on Justice Anthony Kennedy’s majority opinion last week in Fisher v. Texas, where the U.S. Supreme Court upheld the part of the University of Texas undergraduate admissions policy that formally takes the race of individual applicants into account in admitting a portion of the entering freshman class. Amar praises the opinion for being more forthright than other majority opinions of the Court in this area of law, but he expresses concern that in some respects Justice Kennedy’s language may actually obfuscate the legal doctrine at issue.

The Procedural Issues in the Texas Abortion Case

Cornell University law professor Michael C. Dorf comments on the procedural issues the U.S. Supreme Court recently addressed in the Texas abortion case, Whole Woman’s Health v. Hellerstedt. Dorf explains why the majority’s reasoning on the procedural issues is reasonable (and in his view, correct), notwithstanding the criticism by the dissent.

A Potential Landmine in Waiting in Utah v. Strieff

Cornell University law professor Sherry F. Colb discusses the U.S. Supreme Court’s recent decision in Utah v. Strieff, holding that evidence found in that case as a result of a Fourth Amendment violation was not the direct consequence of the violation and was therefore properly admitted into evidence against the defendant under the attenuation doctrine. Colb explains how one throwaway line in the opinion, if taken to its logical conclusion, could potentially spell the death of the exclusionary rule.

Hooray! Finally Dropping the Blinders, Religious Leaders Are Calling Out Terrorists, Haters, Pedophiles and the Institutions that Enable Them

Cardozo law professor Marci A. Hamilton describes a relatively new phenomenon of religious leaders coming together to criticize bad acts—even bad acts perpetrated by people who purport to be religious themselves. Hamilton explains how for too long, religious actors seemed beyond reproach no matter what they did, simply by nature of being religious. She expresses great relief that such a period seems to be passing, as evidenced by the widespread support for the LGBTQ community in response to the recent shooting at the Orlando gay club Pulse.

What Montgomery v. Louisiana Portends for Future Juvenile Sentencing

Cornell University law professor Sherry F. Colb considers the changing meaning of the U.S. Supreme Court’s opinion in Miller v. Alabama, which held that mandatory life sentences without the possibility of parole. Colb discusses specifically the Court’s decision earlier this year in Montgomery v. Lousiana, which held that Miller must be applied retroactively on state collateral review.

Changing the World One Case at a Time: A Review of Gillian Thomas’s Because of Sex: One Law, Ten Cases, and Fifty Years That Changed American Women’s Lives at Work

Hofstra University law professor Joanna Grossman praises Gillian Thomas’s new book Because of Sex: One Law, Ten Cases, and Fifty Years That Changed American Women’s Lives at Work, which profiles ten of the most important Supreme Court cases to the advancement of women’s equality in the workplace.

Trump’s Post-Orlando Statements Reveal the True Nature of His Proposed Ban on Muslim Immigration

Cornell University law professor Michael C. Dorf evaluates statements made by Donald Trump in response to the mass shooting at a gay nightclub in Orlando this past weekend. Dorf argues that by telling American Muslims that they are all presumed to be terrorists, Trump actually fosters resentment and radicalization in the small portion of the American Muslim community that has the potential for radicalization.

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 the University of... 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