Analysis and Commentary on Constitutional Law
Good Rights News Now, Bad Rights News Later?

UNLV Boyd School of Law professor Leslie C. Griffin comments on the U.S. Supreme Court’s decision in Bostock v. Clayton County, in which the Court held that under Title VII, an employer cannot fire an employee simply for being gay or transgender. Griffin considers what might happen next term when the Court takes up the question of whether religious organizations are exempt from these generally applicable laws and thus may discriminate against LGBTQ employees (and others).

The Third-Party Doctrine vs. Katz v. United States

Cornell law professor Sherry F. Colb proposes revising the third-party doctrine in a way that reconciles two of the U.S. Supreme Court’s decisions that some critics view as conflicting. Colb suggests that, contrary to what most critics argue and what she herself has long assumed, the prior decision, Katz v. United States rather than the later one, United States v. White, is the anomaly.

How the EEOC’s Maintenance of an “Alleged Offenders” Log Can Help Prevent the Next Harvey Weinstein

NYU law professor Samuel Estreicher and recent graduate Joseph A. Scopelitis argue that the EEOC should maintain a log of “alleged offenders” to help prevent the next Harvey Weinstein. Estreicher and Scopelitis explain why such a log would effectively balance the interests of the alleged offender and victim, the employer, and the public.

Would Eliminating Qualified Immunity Substantially Deter Police Misconduct?

Cornell law professor Michael C. Dorf discusses the proposal that eliminating or substantially reducing the qualified immunity currently enjoyed by police officers would address racism and police brutality. Although the idea has lately garnered some bipartisan support and could potentially have some benefit, Dorf describes two reasons to be skeptical of the suggestion. He concludes that for all of its flaws, qualified immunity may actually facilitate the progressive development of constitutional rights.

The Illusory Quest to Execute Only “The Worst of the Worst”

Austin Sarat—Associate Provost, Associate Dean of the Faculty, and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College—explains how a recent decision by the Florida Supreme Court allowing that state to proceed with its plan to execute Harry Franklin Phillips highlights America’s illusory quest to ensure that the death penalty be precisely targeted only at “the worst of the worst.” Sarat argues that it is now time to acknowledge that the attempt to exclude clear categories of offenders from death eligibility has failed to adequately protect the dignity of those prisoners, which Justice Anthony Kennedy viewed as a central part of the Eighth Amendment.

Black Lives Matter Is Not Just A Slogan

Cornell law professor Joseph Margulies calls for meaningful and lasting change—not just lip service—to demonstrate that black lives do indeed matter. Margulies points out that “black lives matters” cannot merely be a slogan; to effect true change, we must adopt policies beyond empty gestures to protect and lift up black Americans, including policies that might make our own lives less comfortable.

The Response to President Trump’s Shameless Religious Photo Op Gives Me Hope for the Future

University of Pennsylvania professor Marci A. Hamilton praises the response of liberal clergy in response to President Trump’s seemingly opportunistic photo op in front of St. John’s Episcopal Church in Washington, D.C. Hamilton calls upon these religious leaders to continue speaking out loudly in the name of inclusion, love, and truth.

Hey Twitter—How About Protecting the Rape Victims, Too? And Mr. President, You Lack the Power to Deter Social Media from Fact-checking

University of Pennsylvania professor Marci A. Hamilton comments on Twitter’s recent announcement of a policy to label tweets containing “misleading information.” Hamilton argues that this change is long overdue, but is only the tip of the “Twitter cruelty iceberg,” pointing out that Twitter has empowered celebrities accused of sex assault to attack victims (and whistleblowers), and Twitter should do something about that, as well.

Not Letting Felons Vote Damages Democracy for All Citizens

Austin Sarat—Associate Provost, Associate Dean of the Faculty, and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College—argues that disenfranchising felons, as most American states do in some way, does substantial harm to everyone in our democracy. Sarat praises a recent decision by a federal district court in Florida striking down a state law requiring people with serious criminal convictions to pay court fines and fees before they can register to vote, but he cautions that but much more needs to be done to ensure that those who commit serious crimes can exercise one of the essential rights of citizenship.

Early Release Doesn’t Help Those Left Behind to Endure the COVID-19 Crisis in American Prisons

Austin Sarat—Associate Provost, Associate Dean of the Faculty, and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College—discusses the crisis the COVID-19 pandemic is having on America’s jails and prisons. Sarat argues that early release is a good start, but it cannot be the only solution, because all people, in and out of prisons, deserve to be treated with dignity.

The President Cannot Order the States to Open Houses of Worship During COVID-19

University of Pennsylvania professor Marci A. Hamilton argues that the President does not have the power to order states to open houses of worship during the COVID-19 pandemic. Hamilton discusses the limitations on federal power with respect to states and religious entities and praises the wise members of the clergy who are resisting opening before it is safe.

Why It is Unconstitutional for State Bars, When Doling out Bar-Exam Seats, to Favor In-State Law Schools

Illinois law dean Vikram David Amar explains why it is unconstitutional for state bars to favor in-state law schools when deciding who may sit for the state bar exam while complying with social distancing requirements, based on the Supreme Court’s precedents on the dormant Commerce Clause.

The Things That Are Caesar’s

Cornell law professor Sherry F. Colb comments on the recent oral argument before the U.S. Supreme Court in Our Lady of Guadalupe School v. Morrissey-Berru, which raises the question how broadly to construe the word “minister” within the ministerial exception to anti-discrimination law required by the First Amendment. Colb explains where the ministerial exception doctrine might be headed and suggests that an exemption even for criminal misconduct against ministers might be within the existing doctrine.

Can Workers Tell Governors to Drop Dead? The Moral Authority to Defy Lockdowns

In this second of a series of columns about the COVID-19 protests, Cornell law professor Joseph Margulies argues, with some caveats, that workers have the moral authority to reopen their businesses in order to sustain themselves. Margulies notes that while he is not advising anyone to disobey the law (and while he personally supports the lockdown orders), business owners facing the impossible decision whether to follow the law or sustain themselves and their families are morally justified in defying the stay-at-home orders.

Paid Labor: Eleventh Circuit Protects Rights of Pregnant Worker

Joanna L. Grossman, law professor SMU Dedman School of Law, and Cynthia Thomas Calvert, principal of Workforce 21C and a senior advisor for family responsibilities discrimination to the Center for WorkLife Law at UC Hastings, comment on a recent decision by the U.S. Court of Appeals by the Eleventh Circuit protecting the rights of a pregnant worker. Grossman and Calvert describe the lower court’s ruling and the appellate court’s decision reversing it, calling the decision “a step forward for the rights of pregnant women.”

The Wisconsin Supreme Court Dresses Up Culture War in Jurisprudential Garb

Austin Sarat— Associate Provost, Associate Dean of the Faculty, and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College—comments on the decision by the conservative Wisconsin Supreme Court halting the state’s stay at home order. Sarat points out that the opinion recapitulates, without acknowledgment, debates in analytic jurisprudence about the distinction between orders and rules, and he argues that while the decision may be good for the Trump campaign, it puts at risk the lives and well-being of Wisconsin’s citizens.

What’s at Stake in Espinoza v. Montana Department of Revenue? What the Equal Protection Clause Means in the Context of Classifications Based on Religiosity

Illinois Law dean Vikram David Amar and UC Davis emeritus professor Alan E. Brownstein comment on a case before the U.S. Supreme Court that raises the question whether a religiously neutral student-aid program in Montana that affords students the choice of attending religious schools violates the religion clauses or the Equal Protection Clause of the U.S. Constitution. Amar and Brownstein express no opinion as to whether the courts’ often-expressed concerns about striking down invidiously motivated laws can be effectively overcome, but they contend that jurists who reject invalidating invidiously motivated laws must explain why reasons sufficient in other contexts are not persuasive in this case.

They Are Still Teachers

UNLV Boyd School of Law professor Leslie C. Griffin comments on the oral argument the U.S. Supreme Court heard on Monday in the combined cases of Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel, which bring before the Court the question of the ministerial exception. Griffin explains that the ministerial exception is an affirmative defense that keeps the facts of a case from ever going to a judge or a jury and argues that a broad construction of the exception—as advocated by the religious employers in those cases—would be devastating to the careers of thousands of Americans teaching our children and caring for our sick in religious organizations across the country.

Linking COVID-19 Relief for State Governments to Abandonment of “Sanctuary” Policies? The Uncharted Territory of Conditional Spending

Illinois Law dean Vikram David Amar and professor Jason Mazzone assess President Trump’s suggestion that federal aid to state and local governments might be conditioned on their willingness to abandon their “sanctuary” policies and assist the federal government in immigration enforcement. Although Amar and Mazzone expect those federal spending conditions not to be realized, they use the President’s comment to list and describe some unanswered fundamental constitutional questions in the conditional spending arena.

President Trump Clashes with Legal Oversight in Three Cases to be Argued at the Supreme Court

Associate Dean for Research & Scholarship and Professor of Law at Touro Law Rodger D. Citron comments on three cases coming up for oral argument before the U.S. Supreme Court. Citron observes that if the other eight justices vote along ideological lines, Chief Justice John Roberts will cast the deciding vote in those pivotal cases.

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... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan, an economist and legal scholar, holds the James J. Freeland Eminent Scholar... 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... 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 the Dwight D. Opperman Professor, Director, Center for Labor and Employment... 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

MARCI A. HAMILTON is the Fels Institute of Government Professor of Practice, and Fox Family... more

Joseph Margulies
Joseph Margulies

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

Austin Sarat
Austin Sarat

Austin Sarat is Associate Provost, Associate Dean of the Faculty and William Nelson Cromwell... more

Lesley Wexler
Lesley Wexler

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