Cornell law professor Sherry F. Colb comments on a recent decision by the US Court of Appeals for the Sixth Circuit holding unconstitutional the use of chalk by police officers to track whether a parked car has remained longer than permissible. Colb considers whether the decision—which seems to faithfully apply the US Supreme Court’s decisions in Jones v. United States and Florida v. Jardines—falls short of the “reasonable expectation of privacy” test the Court established in Katz v. United States. Colb proposes a test that instead combines trespass, information-gathering, as well as some privacy interest in that information, arguing that such a test would better reflect the scope of the Fourth Amendment.
Dean Falvy, a lecturer at the University of Washington School of Law, comments on Special Counsel Robert Mueller’s report on the Trump-Russia affair. Falvy points out nine deliberate choices Mueller made in conducting the investigation and drafting the report and highlights one choice Mueller notably deferred to the people.
Cornell law professor Michael C. Dorf comments on three cases in which the US Supreme Court recently granted review that together present the question whether Title VII of the Civil Rights Act of 1964 forbids employment discrimination on the basis of sexual orientation and gender identity. Dorf points out that the cases pose a test for the Court’s conservative majority—whether they will keep faith with their textualist commitment and rule for the plaintiffs or instead follow their conservative social views and rule for the defendant employers.
Cornell law professor Joseph Margulies describes seven steps that progressive prosecutors must take to advance three fundamental principles of meaningful criminal justice reform—dignity, community, and equity. Margulies explains the importance of going beyond piecemeal initiatives to truly embracing and furthering an alternative organizing vision for the prosecutorial function.
GW law professor and economist Neil H. Buchanan points out that while liberals reject radical left-wing ideas, conservatives do not similarly reject radical right-wing ideas. By way of example Buchanan discusses the theory of Modern Monetary Theory, a persistent fringe theory has been embraced by a few prominent left-leaning politicians despite being rejected by economists across the political spectrum.
Marci Hamilton—professor at the University of Pennsylvania and CEO of CHILD USA—discusses the importance of vaccinating children and proposes two legal reforms needed to ensure children’s protection. Specifically, Hamilton proposes that states eliminate religious exemptions to mandatory vaccination and permit mature children to decide whether they get vaccinations.
Marci A. Hamilton—founder, CEO, and Academic Director of CHILD USA, a 501(c)(3) nonprofit academic think tank at the University of Pennsylvania dedicated to interdisciplinary, evidence-based research to prevent child abuse and neglect—explains why insurance carriers can and should play a key role in preventing child sex abuse. Hamilton describes two reforms that are needed to make the insurance industry a positive force instead of a barrier to child sex abuse prevention.
Cornell law professor Sherry F. Colb discusses some of the she ideas she also expressed in a speech on identity politics. Specifically, Colb explains that the phenomenon of identity politics concerns two components: (1) identity and naming, and (2) victim culture.
GW law professor and economist Neil H. Buchanan continues his series of columns discussing how the establishment left, particularly the media, is treating the policy and politics of Senator Bernie Sanders (and others) irresponsibly and superficially as “extreme left,” reinforcing false equivalence and “bothsidesism.” Buchanan provides additional support for his thesis across these columns that the supposedly extreme ideas of Sanders and others are actually hugely popular and not at all radical.
Cornell law professor Joseph Margulies reflects on a class he taught in a prison last Election Day that presents questions of elections and fear in an age of tribalism. Margulies describes the heightened state of fear in the United States, defines tribalism, and explains why true freedom requires an open—rather than closed—mind.
Illinois law dean and professor Vikram David Amar explains why President Trump’s proposal that detained immigrants be relocated to sanctuary cities violates the Supreme Court’s precedent interpreting relevant constitutional provisions. Amar argues that even a conservative Supreme Court that defers to the Executive branch in matters of foreign affairs would likely not permit such action.
Illinois law dean and professor Vikram David Amar describes recent developments in the reform movement known as the National Popular Vote (NPV) interstate compact plan and explains how those hesitant to get on board (particularly elected Republican legislators) can address their concerns with the plan. Specifically, Amar proposes that states should adopt the NPV interstate compact but delay implementation until 2032—a time in the future at which no one today can anticipate which party (if either) the compact would benefit.
Cornell law professor Michael C. Dorf comments on the practice by federal courts of dismissing investigations into complaints of judicial misconduct if the judge retires from the bench or is elevated to justice status. Dorf argues that a full investigation of someone who is no longer a judge (or no longer a judge on a covered court) may still have implications for judges who continue to serve and thus that judicial councils should not construe their statutory mandate as narrowly as they did in the recent investigations of then-Judges Maryanne Trump Barry, Alex Kozinski, and Brett Kavanaugh.
SMU Dedman School of Law professor Joanna L. Grossman comments on a bill under consideration by the Texas legislature that would require appointment of an attorney ad litem to represent an unborn child during a judicial bypass proceeding for an abortion for a pregnant minor. Grossman describes the legal background and explains why the bill is both unconstitutional and unwise.
Cornell law professor Sherry F. Colb describes two different attitudes toward patient autonomy using anecdotes—one of a cancer doctor and another of an abortion provider. Colb considers why the two attitudes differ and explain how the former can learn from the latter about patient empowerment.
GW law professor and economist Neil H. Buchanan argues that Democrats’ supposedly unpopular extreme-left policy proposals are actually both moderate and popular. Buchanan points out that polls show that Americans overwhelmingly embrace policies that are mischaracterized as extreme left.
Marci A. Hamilton, professor at the University of Pennsylvania and CEO of CHILD USA, and Kathryn Robb, executive director of CHILD USAdvocacy, describe the latest trick by Catholic bishops in Maryland to successfully lobby for a statute of repose to be included in a bill, undermining its ability to provide meaningful justice to abuse victims. Hamilton and Robb call upon legislators to stop cooperating with Catholic bishops, as doing so leads only to continued secrecy, suffering, and pedophile empowerment.
Cornell law professor Michael C. Dorf argues that the question Justice Clarence Thomas asked during oral argument in Flowers v. Mississippi potentially reflects a view inconsistent with one he and other conservative justices have strongly endorsed in the past. Dorf points out that Justice Thomas’s question, regarding the race of jurors struck by the defense counsel, suggests that discrimination against one group can cancel out discrimination against another, which is directly at odds with his expressed view that the Constitution forbids all government consideration of race.
Cornell law professor Sherry F. Colb comments on a case in which the US Supreme Court recently granted review, Ramos v. Louisiana, which presents the question whether states may permit conviction of an accused criminal on less than a unanimous jury voting “guilty.” Colb explains the doctrine of incorporation—by which most provisions of the Bill of Rights are held to be applicable as against the states as well as the federal government through the Fourteenth Amendment—and explains the possible significance of a unanimous jury verdict.
BU Law emerita professor Tamar Frankel comments on the renewed importance of the repealed Glass-Steagall Act which Congress passed after the failure of the financial system in the 1920s. Frankel argues that the alarming path of Wells Fargo Bank supports imposing regulations on banks similar to those levied by the Glass-Steagall Act.