Analysis and Commentary on Courts and Procedure
Nebraska and Oklahoma Take Colorado to the Supreme Court Over Legalized Marijuana

Cornell University law professor Michael Dorf discusses a lawsuit filed in the U.S. Supreme Court by Nebraska and Oklahoma against Colorado, alleging that the latter state’s legalization of marijuana undermines their ability to maintain their own prohibitions of the substance.

Why the Federalism Teachings from the 2012 Obamacare Case Weaken the Challengers’ Case in King v. Burwell

U.C. Davis Law professor Vikram David Amar explains how the U.S. Supreme Court’s 2012 decision in National Federation of Independent Business v. Sebelius—upholding Obamacare as a proper exercise of Congress’s tax powers and striking down a significant expansion of Medicaid—weakens the case of subsequent challengers to Obamacare in King v. Burwell.

The Mystery of Case Assignment in the Ninth Circuit

Chapman University law professor Ronald Rotunda comments on the purportedly random assignment of judges to cases in federal courts. Rotunda points out that particularly in the Ninth Circuit, which has been singled out as having highly unlikely results of “random” assignment, the process of case assignment is unnecessarily opaque; Rotunda argues for greater transparency to ensure fairness and justice.

The Supreme Court Considers Warger v. Shauers: How Insulated Are Jurors From Having to Testify About Deliberations?

Cornell University law professor Sherry Colb discusses whether there is a meaningful distinction between using juror testimony to invalidate the substance of a jury’s verdict and using the testimony to call into question the composition of the jury. Colb notes that a case raising that issue is before the U.S. Supreme Court this Term.

Ebola and Civil Liberties: Lessons From Gitmo

Cornell University law professor Michael Dorf analogizes the authority of the government to enact quarantine measures to its authority (as established under Supreme Court precedents) to detain unlawful enemy combatants. Dorf argues that while courts are likely to reject the most outrageous detention policies, they are unlikely to reject policies simply for being misguided or unwise.

Yet Another (Judicial) Incursion Into A State’s Decisions About How to Structure Direct Democracy: The Ninth Circuit’s Ruling in Chula Vista Citizens for Jobs and Fair Competition v. Norris

U.C. Davis School of Law professor Vikram David Amar describes a recent incursion by the U.S. Court of Appeals for the Ninth Circuit into California’s direct democracy system. Amar explains the U.S. Supreme Court precedents that led the Ninth Circuit to its conclusion, and he calls upon the Court to cut back or overrule its prior erroneous decisions to avoid future injuries to state direct democracy systems.

Resurrecting the Dubious State Secrets Privilege

John Dean, former counsel to the president, comments on a recent case between two private parties in which the U.S. Attorney General intervened and sought dismissal, citing the “state-secrets privilege.” Dean explains the questionable history of this privilege and explains why blind adherence to it can be dangerous.

Suing the President

Chapman University law professor Ronald Rotunda discusses on the lawsuit against President Obama and explains the issue of judicial standing to sue the President for exceeding his constitutional authority. Rotunda points to the U.S. Supreme Court’s recent decision in United States v. Windsor, the case in which the Court struck down Section 3 of the Defense of Marriage Act, as supporting standing for the new case against the President.

The Supreme Court’s Approach to Restitution For Victims of Child Pornography Possession

Cornell University law professor Sherry Colb discusses the U.S. Supreme Court’s decision in Paroline v. United States, in which the Court considered how much restitution a victim of sexual abuse should be able to recover from a single perpetrator. Colb explains the reasoning used by the majority and the two diametrically opposed dissenting opinions, and she extends the discussion to an important narrative the Court’s opinions fail to consider.

Using Facebook as a Discovery Device

Chapman University law professor Ronald Rotunda discusses how various courts and bar associations treat attorneys’ uses of Facebook and other social networking sites. Rotunda describes some different rules that affect how lawyers may and may not use social networking sites to interact with witnesses, opposing parties, jurors, and clients.

How to Read Justice Kennedy’s Crucial Concurring Opinion in Hobby Lobby: Part II in a Series

Vikram David Amar, a U.C. Davis law professor, continues his discussion of the significance of Justice Anthony Kennedy’s concurrence in Burwell v. Hobby Lobby Stores Inc.. Amar describes several ways in which Justice Kennedy’s concurrence can be read to limit the breadth of the Court’s holding in that case and suggests that lower courts should pay close attention to his concurring opinion when applying the Religious Freedom Restoration Act (RFRA) in subsequent cases.

Federal Appeals Courts Divide Over Obamacare Subsidies—and Over “Textualism”

Cornell University law professor Michael Dorf discusses two federal appeals courts’ recent diverging decisions over Obamacare subsidies. Dorf contrasts the method of statutory interpretation used by the majority of a panel of the U.S. Court of Appeals for the D.C. Circuit, which struck down the subsidies, with that of the Court of Appeals for the Fourth Circuit, which upheld them.

Nixon’s Uses, Abuses and Muses on the Supreme Court

John Dean, former counsel to the president, describes former President Richard Nixon’s views of, and influence on, the U.S. Supreme Court. In the process, Dean reveals some tidbits of information about Nixon that he discusses in greater depth in his upcoming book, The Nixon Defense: What He Knew and When He Knew It.

A Potential Guide to the Meaning of Hobby Lobby: Why Justice Kennedy’s Concurring Opinion May Be Key, Part I

Professor Vikram David Amar, of U.C. Davis School of Law, explains why Justice Kennedy’s concurring opinion in Burwell v. Hobby Lobby Stores Inc. deserves heightened attention and weight. In this first of a two-part series of columns, Amar provides background on the roles and types of concurring opinions in 5-4 decisions and provides some historical examples of some key concurrences.

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

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 Robert A. Fox Leadership Program 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

Lesley Wexler
Lesley Wexler

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