The U.S. Supreme Court Narrows States’ Discretion to Execute the Intellectually Disabled

Cornell University law professor Sherry Colb comments on a recent decision by the U.S. Supreme Court invalidating Florida’s approach to identifying criminal convicts who are intellectually disabled and therefore constitutionally ineligible for the death penalty. Colb describes the facts and issues that brought the case before the Court and infers from the opinion that the Court may have a growing consciousness about those sentenced to death. Acknowledging also the strong arguments presented by the dissent, Colb concludes that essential difference between the majority and the dissent is a disagreement as to what is worse: to execute the wrong person to spare the wrong person from execution.

Amending the First Amendment

Chapman University law professor Ronald Rotunda critically discusses attempts to amend the First Amendment of the U.S. Constitution. Rotunda describes some of the alarming implications of the proposal in the Senate, which already has 41 cosponsors, and he warns that the passage of the proposal will lead to the taking away of important rights the First Amendment granted.

Three Recently Accepted Cases Shed Light on the Supreme Court’s Process for Granting Review

U.C. Davis law professor Vikram David Amar discusses how three cases on the U.S. Supreme Court’s docket for the 2014-2015 Term illustrate the nuanced principles behind the Court’s selection of cases for review. Amar describes each case and explains why the Supreme Court likely chose it for review.

Poor, Rich, and Very Little Movement in Between: Part One of a Two-Part Series on Income Mobility and Inequality

George Washington University law professor and economist Neil Buchanan critiques the argument that income mobility adequately addresses the issue of economic inequality. Buchanan contends that supporters of the mobility argument rely on a theory of mobility that disregards the reality of the permanent effects that poverty has on people. In a companion column next week, Buchanan will discuss where the arguments that Professor Piketty offered in his book Capital in the Twenty-First Century fit into the arguments over inequality, mobility, and redistribution.

The Supreme Court Ducks a Treaty Power Question but Raises Broader Questions

Cornell University law professor Michael Dorf discusses the U.S. Supreme Court’s decision in Bond v. United States, handed down earlier this week. In that case, the Court considered whether the federal Chemical Weapons Convention Implementation Act applies to a Pennsylvania woman’s attempted use of mild toxins to cause a skin rash on a romantic rival. Dorf argues that the Court’s ruling sidesteps an important question about the scope of congressional power to implement treaties but that it also announces a presumption of statutory construction that could have far-reaching implications.

The Soda Ban or the Portion Cap Rule? Litigation Over the Size of Sugary Drink Containers as an Exercise in Framing

Guest columnist and Touro Law Center professor Rodger Citron comments on the litigation in New York over a rule prohibiting food-service establishments from serving sugary drinks in sizes larger than sixteen ounces. Citron describes the arguments put forth by each side and explains why the critical issue is whether the Board of Health's has the authority to promulgate such a rule.

Marijuana Legalization Regimes and the Evolving Fourth Amendment

Guest columnist and University of South Carolina law professor Seth Stoughton comments on the shifting marijuana laws throughout the United States and the implications for Fourth Amendment doctrine. Stoughton explains how marijuana laws in the United States have changed over time describes the resulting doctrinal uncertainty. He focuses specifically on the Fourth Amendment’s “automobile exception” in cases involving marijuana calls for legislatures and judges to clarify how police practices should be updated.

Secret Endless Editing of Published Supreme Court Opinions

Former counsel to the president John Dean comments on a recent public revelation that the U.S. Supreme Court quietly revises its decisions years after they were issued. Drawing upon a forthcoming article by Harvard Law professor Richard Lazarus, Dean describes the process by which the Court releases its rulings to the public. He predicts that it will not be the errors and mistakes that will place the Court’s institutional integrity at risk in the future, but the secretive and dubious means they now use to change their written and published opinions.

Academic Freedom Is Not Immunity From Robust Debate in the Marketplace of Ideas

Cardozo Law School professor Marci Hamilton argues for the importance of academic freedom but distinguishes it from immunity from debate in the marketplace of ideas. She comments on a recent Freedom of Information Act (FOIA) request targeting University of Virginia School of Law professor Douglas Laycock for allegedly using university resources for anti-LGBT ends. Hamilton calls the formal FOIA request unnecessary but the intent to question how his public positions on various issues play out in the real world. Hamilton describes a number of positions Laycock has taken publicly that support the view that he is an advocate for extreme religious forces.

Will the Lower Court Consensus on Same-Sex Marriage Influence the Supreme Court?

Cornell University law professor Michael Dorf discusses how the lower courts’ consistent rulings in favor of same-sex marriage might influence a decision by the U.S. Supreme Court. Dorf observes that every single judge to rule on the question has relied on the Court’s 2013 decision in United States v. Windsor for the conclusion that SSM bans are unconstitutional. He concludes that while the lower courts’ decisions have no binding effect on the Supreme Court, they might serve as a legal barometer of what is legally plausible and as conduits of public opinion.

A Decade of Change: The Tenth Anniversary of Same-Sex Marriage in the United States

Hofstra University law professor Joanna Grossman reflects on the progress of same-sex marriage in the United States over the past decade. She notes that on May 17, 2004, Massachusetts became the first state to issue marriage licenses to same-sex couples. Grossman describes how the movement gained momentum and how the U.S. Supreme Court’s 2013 decision in United States v. Windsor contributed substantially to that rapid change. She observes that as of now, 19 states and the District of Columbia permit same-sex marriage, and that number is only going to increase.

The Equality and Coercion Issues Inadequately Addressed in Town of Greece v. Galloway

U.C. Davis law professors Vikram David Amar and Alan Brownstein express their surprise and disappointment at the U.S. Supreme Court’s recent ruling in Town of Greece v. Galloway, upholding a practice of starting town board meetings with a prayer. Amar and Brownstein argue that the decision inadequately addresses legitimate concerns over the plaintiff challengers’ equality- and liberty-based arguments. They conclude that Justice Kennedy, who authored the opinion, must view reality quite differently from how he did when he authored the majority opinion in Lee v. Weisman and struck down state-sponsored prayers at public middle and high school graduations.

A Conservative Law Professor Points the Way Out of the IRS Scandal-That-Never-Was

Neil Buchanan, a law professor and economist at George Washington University Law School, critiques the so-called IRS scandal of 2013 and one conservative law professor’s persistent attempts to paint it as something it is not. Buchanan explains why the story never amounted to a scandal at all and posits that a recent op-ed by that professor arguing otherwise undermines the reputation of that that professor’s blog as a nonpartisan source of tax-related news.

The Dilemma of Humane Execution and Humane Slaughter

Cornell law professor Sherry Colb discusses the notion of humane killing in the context of the death penalty and the slaughter of animals. She explores the apparent paradoxes of humane executions of criminals and the humane slaughter of animals. Colb concludes that the only way to truly eliminate the suffering of humans and animals during any intentional killing process is to abolish both executions and slaughters.

Federal Judge Turns Back Hunt for Gays in the Department of Justice

Hofstra law professor Joanna Grossman comments on a federal lawsuit by a conservative group seeking to “expose” the U.S. Department of Justice as having been taken over by gay and lesbian employees. Grossman compares the attempt to 1950s-era McCarthyism and the largely successful effort to purge the federal government of gays and communists at that time. She argues that the district court in this case correctly found that the DOJ was justified in refusing to release sensitive documents pertaining to the sexual orientations of its employees.

Prayers before Meetings of the Town Board of Greece, New York

Ronald Rotunda, law professor at Chapman University, explains why the U.S. Supreme Court’s recent decision in Town of Greece v. Galloway fits solidly within precedent and does not expand it. Rotunda describes the precedential cases on point and argues that Marsh v. Chambers—the Court’s 1983 decision holding that legislative prayers were a long, consistent, historical practice—ultimately determined the outcome of Galloway.

The New Republican Benghazi Inquiry Is All About Money

Former counsel to the president John Dean critiques the most recent Benghazi inquiry led by Speaker of the House John Boehner as merely a thinly veiled fundraising tactic. Dean points out that the findings from seven prior Benghazi investigations are being ignored and that the only possible purpose of another one is to raise money.

The Lessons of the New Mississippi RFRA that Shed Light on the Hobby Lobby and Conestoga Wood Cases Pending at the Supreme Court

Justia columnist and Cardozo law professor Marci Hamilton argues that the effects of Mississippi’s recent passage of a Religious Freedom Restoration Act (RFRA) should inform the U.S. Supreme Court as it presently considers two cases arising under the federal RFRA, Hobby Lobby and Conestoga Wood. Hamilton points out that the new Mississippi law has ignited major conflict between businesses that simply want to do business with willing customers and those who want to impose their beliefs on employees and customers. Hamilton cautions that if the Supreme Court makes the federal RFRA’s language to applicable to organizations like Hobby Lobby and Conestoga Wood, it will surely cause national unrest.

The Death Penalty in the United States and the Force of Regional Human Rights Law

Justia guest columnist and U.C. Berkeley School of Law professor Saira Mohamed discusses how the recent botched execution in Oklahoma signals the impact regional human rights laws can have beyond borders. Mohamed explains how the development of various European laws and corporate policies have contributed to changes in lethal injection practices in the United States. She notes that European opposition to capital punishment led to the adoption of a European Union regulation restricting trade in drugs that could be used for the purpose of lethal injection. Mohamed concludes that despite the common perception that human rights laws are toothless, limited laws such as those in Europe demonstrate the capacity of human rights law to have wide application, shape state practices, and impact human lives.

Married Couple’s Phone Sex Did Not Force Divorce Clock to Reset

Justia columnist and Hofstra law professor Joanna Grossman discusses a recent decision by a Maryland appeals court holding that a couple’s engaging in phone sex does not constitute cohabitation for the purpose of divorce. Grossman describes the history of fault and no-fault divorce in Maryland and explains why the court reached the decision it did in this case. Although she acknowledges that the court’s reasoning is sound, she presents two considerations that might have supported the opposite conclusion.

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