Not an Administrative Law Bang but a Whimper

NYU law professor Samuel Estreicher comments on Kisor v. Wilkie, a case currently before the US Supreme Court that raises the narrow question whether a court should accept an interpretation by the Department of Veterans Affairs of its own technical regulation but also gets at a broader question of judicial deference more generally. Estreicher argues that when agencies interpret their own regulations, courts should afford those interpretations only Skidmore respect, not the higher Chevron-style deference that has come to be commonplace.

“Implied Consent” and the Fourth Amendment Go To the US Supreme Court

Cornell law professor Sherry F. Colb comments on a case the US Supreme Court recently agreed to review raising the question whether a state statute may constitutionally conduct a blood test on an unconscious driver suspected of drunk driving under a theory of “implied consent.” Colb explains the meaning of “implied consent”—deceivingly named, for there is no actual consent—and predicts that, consistent with the Court’s recent precedent on a similar issue, the state statute should be struck down.

On Anniversary of Roe v. Wade, New York Moves to Shore Up Reproductive Rights

SMU Dedman School of Law professor Joanna L. Grossman comments on New York Governor Andrew Cuomo’s signing into law the Reproductive Health Act, which eliminates disparities between the federal constitutional standard and New York’s statutory standard preserving a woman’s right to terminate a pregnancy. Grossman describes the evolution of abortion rights in the United States and points out that New York’s move to safeguard this right comes at a time when the US Supreme Court might rule to overturn its precedent, and ironically, on the 46th anniversary of the Court’s historic decision in Roe v. Wade.

What the Alabama Confederate Memorial Case Says About Modern Constitutional Doctrine

Illinois law dean and professor Vikram David Amar explains why a recent decision by an Alabama trial court was constitutionally misguided while also illustrating some of the prominent and problematic features of modern First Amendment and federalism doctrines. Amar describes the reasoning behind the ruling, points out the flaws in the analysis, and then offers two takeaway points that we might learn from the opinion.

Mitsubishi Bank’s Museum of Trust in Tokyo

BU Law emerita professor Tamar Frankel explains why the Mitsubishi Bank’s Museum of Trust in Tokyo, Japan, which opened a few years ago, could serve as a model for the United States to reduce the cost of mistrust and breach of trust in this country. Frankel describes the museum and considers how it affects people’s perception of the importance of trust in society.

How Should the Law Address Illicit Motives in the Age of Trump?

Cornell law professor Michael C. Dorf comments on a case arising from the Trump administration’s decision to add a citizenship question to the 2020 census questionnaire—a case the US Supreme Court had on its calendar for oral arguments until late last week, when the federal district judge issued an opinion and enjoined the government from including the question. Despite the original issue presented in the case (a technical one about the scope of discovery) being made moot by the district court opinion, Dorf discusses the remaining and greater issue of how to discern and address illicit government motives.

#MeToo Goes Global: Introducing the #MeToo Treaty

Illinois law professor Lesley Wexler discusses a draft treaty by the International Labor Organization that would address, on a global scale, many of the issues of workplace harassment and sexual assault that the #MeToo movement has brought into the spotlight. Wexler describes how the treaty is grounded in human rights language and would create protections for workers far more expansive than even those recognized under current US law, such as Title VII of the Civil Rights Act of 1964.

Cardinal Timothy Dolan Proves Once Again the Church Will Never Reform Itself without the Law and Civil Society Behind It

Marci A. Hamilton—professor and resident senior fellow in the Program for Research on Religion at the University of Pennsylvania and founder, CEO, and Academic Director of CHILD USA—comments on an op-ed by New York City’s Archdiocese’s Cardinal Timothy Dolan that Hamilton characterizes as full of “misstatements and ugly implications.” Hamilton disassembles Dolan’s claims and explains why litigation—not mediation, as Dolan claims—is critically essential for the victims of child sex abuse to access the justice they deserve.

Who’s a Good Boy? US Supreme Court Considers Again Whether Dog Sniffs Are Searches

Cornell law professor Sherry F. Colb comments on a case in which the US Supreme Court is considering whether to grant review that presents the question whether police must obtain a search warrant before bringing a trained narcotics dog to sniff at a person’s door for illicit drugs. Colb highlights some of the most interesting arguments on the issue and explains some of the nuances that make a clear answer more elusive in these cases.

Run, Baby, Run: Federal Court (Correctly) Sends Pregnancy Discrimination Case to Trial

SMU Dedman School of Law professor Joanna L. Grossman praises a recent decision by a federal district court allowing a claim of pregnancy discrimination to go to trial and denying the employer’s motion for summary judgment. Grossman describes the factual and legal background of the case and explains how the court used two methods to find that the case should go to trial on the merits.

Frenemies at Last?: How Legislative History Could Save Justice Kavanaugh’s Opinion in Azar v. Allina

John Cannan—a research and instructional services librarian at Drexel University Thomas R. Kline School of Law in Philadelphia—discusses a case that will be argued before the US Supreme Court this week and explains how the legislative history of the law at issue in that case could save the lower court’s decision, which was written by then-Judge Brett Kavanaugh. Cannan points out the irony that Justice Kavanaugh, who is vocally opposed to using legislative history in interpreting the meaning of statutes, may find the greatest support for his decision in this case in the legislative history.

How the Arizona Legislature Has Exceeded its Permissible Role in Filling US Senate Vacancies: Part Two in a Series

In this second of a series of columns, Illinois law dean and professor Vikram David Amar explains how the Arizona legislature has exceeded its power under the Seventeenth Amendment in prescribing how the governor must make a temporary appointment to a vacant US Senate seat. Amar points out that under the most likely reading of the Amendment, state legislatures may empower the governor to make such temporary appointments but may not further participate in the process.

Can the Supreme Court Shelter Rich People from Taxation?

GW law professor and economist Neil H. Buchanan explains the benefits of a tax policy that eliminates the “realization requirement” but describes how a hyper-conservative Supreme Court might go to great lengths to strike down such a policy. Buchanan points to an all-but-overturned Supreme Court decision from 1920 and suggests that the conservatives on the Court could ignore the (well deserved) criticism that decision has received in order to strike down progressive tax legislation.

Why Facebook’s Hate-Speech Policy Makes So Little Sense

Cornell law professor Michael C. Dorf comments on Facebook’s global efforts to block hate speech and other offensive content and explains why formula-based policy necessarily makes very little sense. As Dorf explains, accurate determinations of hate speech require cultural understanding and evaluations of cases on an individual basis, but this approach also necessarily injects individual bias into those decisions. Thus, Facebook’s policy, while not ideal, may be but one of a handful of inadequate options.

States’ Regulation of Broker Dealers

BU Law emerita professor Tamar Frankel explains why state regulatory bodies should impose fiduciary duties on broker-dealers, whose services involve both “sales talk” and the managing of securities of investors who often lack knowledge or expertise of the transactions. Frankel reiterates points she made during testimony before the New Jersey Bureau of Securities and makes the case for the long-overdue regulation of broker-dealers as fiduciaries.

Trump “Hush” Payment to Stormy Daniels Likely Does Not Violate Election Law

NYU law professor Samuel Estreicher and JD candidate David Moosmann argue that the $130,000 “hush” payment of adult film actress Stormy Daniels, paid through his personal lawyer Michael Cohen, likely does not violate campaign finance laws. As Estreicher and Moosmann explain, the payment most closely resembles an expenditure by a candidate from his own funds, not a contribution from a third party and thus is permissible under applicable laws and regulations.

2018 Year in Review: Child Sex Abuse Statutes of Limitations, and the Catholic Bishops’ Spiritual Retreat

Marci A. Hamilton—the Robert A. Fox Leadership Program Professor of Practice, and Fox Family Pavilion Resident Senior Fellow in the Program for Research on Religion at the University of Pennsylvania—comments on the progress (and lack thereof) of legislation in 2018 affecting child sex abuse victims’ access to justice across the United States. In particular, Hamilton calls upon American bishops to start advocating for, rather than against, the victims of abuse.

Changing How We Think About Date Rape

Cornell law professor Sherry F. Colb explains how the Enhanced Assess, Acknowledge, Act (EAAA) program might help change the way we think about acquaintance rape and reduce the incidence of such rape and other similar sexual crimes. Colb points out some of the shortcomings of consent-focused education about rape and describes how EAAA addresses many of these shortcomings.

Federal Lawsuit Tests Constitutionality of Arizona Statute for Filling US Senate Vacancy Created by John McCain’s Death: Part One in a Series

In this first of a series of columns, Illinois law dean and professor Vikram David Amar comments on a lawsuit filed in federal court in Arizona that challenges the way state officials are handling the vacancy in the US Senate created by Senator John McCain’s death four months ago. Amar explains the basis of the lawsuit and discusses the sparse case law on point that may determine the outcome of the lawsuit.

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 is an economist and legal scholar and a Professor of Law at The George... 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

Anita Ramasastry
Anita Ramasastry

Anita Ramasastry is the UW Law Foundation Professor of Law at the University of Washington School... more

Lesley Wexler
Lesley Wexler

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