The Changing Scope of the Freedom of Expression in the United States and Brazil

Guest columnists Igor De Lazari and Antonio Sepulveda, and Justia editor David S. Kemp compare and contrast the evolving recognition of the rights of LGB individuals in the United States and Brazil. The authors point to several parallel decisions by the high court of each nation, but they also point to ways in which the jurisprudence of the two countries might diverge—specifically when religious beliefs appear to conflict with the recognition of the rights of gays and lesbians.

Bitcoin and the Legal Ethics of Lawyers

Chapman University, Fowler School of Law, professor Ronald D. Rotunda comments on a recent opinion by the Nebraska bar concluding that lawyers may receive digital currencies such as bitcoin for their services, but only subject to certain conditions. Rotunda provides a brief explanation of bitcoin and explains why the opinion makes no sense. Rotunda calls upon lawyers and state bars to consider the impact of new technology on lawyers, but not to impose special rules on novel tools that are simply a new way of engaging in a traditional endeavor.

Reflections on Insurrections

George Washington law professor and economist Neil H. Buchanan considers the irony of the (hopefully remote) possibility that people might resort to violence to keep President Trump in power. Buchanan explains the “insurrectionist view” of the Second Amendment, which has never been credited by the Supreme Court, but which holds that the founders included the gun-related amendment in the Bill of Rights to prevent the federal government from running roughshod over the people. Buchanan points out the circular logic that under the insurrectionist view, the reason people need guns is to prevent the government from taking their guns.

The Need for Clearer Understanding of the Basic Federalism Doctrines Concerning Sanctuary Cities and Other Federal-State Flashpoints

Illinois Law dean and professor Vikram David Amar explains the federalism doctrines implicated by Attorney General Sessions’ attempt to deny funding to sanctuary jurisdictions. Amar points to lower court decisions that reflect a misunderstanding of the doctrines and calls upon federal courts and their law clerks to better understand and apply not just the nuanced technical details of various specific doctrines, but the overall federalism big picture as well.

The Troublingly Widening Gyre of Complicity Claims

Cornell University law professor Michael C. Dorf describes a principle most famously articulated by Thomas Jefferson, under which there should be a right to avoid providing financial support for causes one strongly opposes. Dorf argues that the Jeffersonian principle has lately run amok. He points out that the government’s argument against allowing a seventeen-year-old undocumented immigrant in federal custody to obtain a privately funded abortion is but one example of the government’s too-broad definition of “facilitation” of acts with which it disagrees. Dorf argues that adoption of such a position would convert every objectionable private exercise of rights into government participation.

Body Worn Cameras: The Dog That Won’t Bark

Cornell University law professor Joe Margulies comments on the findings of a recent study of police body cameras that body-worn cameras made no statistically significant difference in how police go about their jobs. Margulies points out that the story is not in the absence of a difference, but in people’s surprise to the absence of a difference. Indeed, it is the routine, not the anomalous, that requires reform.

What Needs to Happen Next for the #MeToo Campaign to Fulfill Its Potential

Professor and resident senior fellow in the Fox Leadership Program at the University of Pennsylvania, Marci A. Hamilton praises the #MeToo campaign and explains what more needs to happen to meaningfully address the pervasive issues of sexual assault and abuse against children and adults. Hamilton points to the brave actions by Olympic gymnast McKayla Maroney and elaborates on what must change in our society to empower victims and hold those in power accountable.

The Lessons of Sex-Selection Abortion

Cornell University law professor Sherry F. Colb reviews Sital Kalantry’s book Women's Human Rights and Migration: Sex-Selective Abortion Laws in the United States and India. Colb explains how the book taught her a new way to think about an area in which Colb herself already has extensive knowledge. Colb praises Kalantry for taking an empirically supported look at the practice of sex-selection abortions in the United States and elsewhere and for drawing sophisticated conclusions about the proper place for regulation on the basis of that scrutiny.

The Handmaid’s Tale—Junior Version

SMU Dedman School of Law professor Joanna L. Grossman analogizes a situation in the present United States to the dystopic circumstances of The Handmaid’s Tale. In each, Grossman points out that men have taken upon themselves the right and responsibility to mandate what women may (and must) do during pregnancy, despite what are indisputably their constitutional rights.

Rewarding Honesty in Institutions

Boston University law professor Tamar Frankel describes a model for institutional compliance that provides financial rewards for honesty and compliance with the law. Frankel explains the logistics of such a model and why, for some companies, a bottom-up approach may serve as a superior model than the traditional top-down approach for bringing about desirable results.

The Supreme Court Needs to Clarify When District Court Injunctions Blocking Federal Policies Can Extend Beyond the Actual Plaintiffs in a Case

Illinois Law dean and professor Vikram David Amar comments on the increasingly frequent practice of federal district courts issuing injunctions that extend relief beyond the plaintiffs in the case. Amar describes the problems with this practice and calls upon the US Supreme Court to clarify the doctrine of when nationwide (or global) injunctions by federal district courts are permissible and when they are not.

What Happens When Very Few People Own Quite a Few Guns?

George Washington law professor and economist Neil H. Buchanan considers the implications of the fact that a very small number of Americans own a very large percentage of the privately owned guns in the United States. Specifically, he considers whether the already-enormous number of guns owned by Americans means that we are doomed to live with gun violence forever, no matter what a future Congress might do, and whether the concentration of guns in the hands of Donald Trump’s supporters raises any special concerns about attempts to impeach the president.

Can Congress Ban Bump Stocks?

Cornell University law professor Michael C. Dorf explains why, if Congress wants to ban or further regulated the sale of “bump stocks,” it should act quickly or risk missing the window in which regulation is possible. Dorf points out that the test the Supreme Court uses for whether weapons count as “arms” protected by the Second Amendment is whether they are in “common use,” not whether they are “dangerous and unusual weapons.” Dorf argues that so long as bump stocks remain legal, people can accumulate them, and if enough people do that before they are banned, there could be so many in circulation as to qualify as in common use, thereby falling within the scope of Second Amendment protection.

Oh, Those Crazy Commissions

Cornell University law professor Joseph Margulies describes the ongoing military commissions operating at Guantanamo, costing US taxpayers over $90 million per year. Margulies explains why the commissions are are all symbol and no substance but why politicians will never suggest that they be shut down.

Bullies, Bullies Everywhere

Professor and resident senior fellow in the Fox Leadership Program at the University of Pennsylvania, Marci A. Hamilton points out two ways the legal system reinforces a culturally ingrained fear of undermining the “family breadwinner”: short statutes of limitations (SOLs) for sex abuse and defamation law. Hamilton argues that fixing the SOLs and defamation law can shift the balance of power between perpetrators and the victims.

The Trump Administration Mimics Mississippi on Civil Rights

Marci A. Hamilton, a professor and resident senior fellow in the Fox Leadership Program at the University of Pennsylvania, describes how Mississippi and President Trump (with the help of Jeff Sessions) are bent on demeaning and disempowering LGBT individuals in every way possible. Hamilton points to the passage of the federal Religious Freedom Restoration Act of 1993 as the starting point for this movement, despite the law’s being struck down as unconstitutional in 1997.

The US Supreme Court Considers the Scope of the Automobile Exception

Cornell University law professor Sherry F. Colb comments on a case the US Supreme Court recently agreed to hear regarding the scope of the automobile exception to the Fourth Amendment warrant requirement. Colb explains the facts leading up to the controversy, the arguments on both sides, and the unusual nature of the case. Colb points out that the Court was likely motivated to hear the case to resolve a question the case does not even squarely present, namely whether the presence of a car in a driveway is a reason not to apply the automobile exception.

Sex, Lies, and Trump’s Rollback of the Contraceptive Mandate

SMU Dedman School of Law professor Joanna L. Grossman comments on the recent change in policy announced by the Trump administration rolling back the Affordable Care Act’s contraceptive mandate, allowing employers with religious or moral objections to exempt themselves. Grossman describes the history of access to contraception in the United States and the measures Trump has taken that have the purpose or effect of restricting access to contraception.

The Fall of Seriatim Opinions and the Rise of the Supreme Court

Chapman University Fowler School of Law professor Ronald D. Rotunda describes the historic practice by the US Supreme Court of issuing seriatim opinions, where each justice wrote his own separate opinion, rather than the current practice of issuing an Opinion of the Court. Rotunda describes the role of Chief Justice John Marshall in changing the practice, which resulted in the most powerful Court in the world.

Can Government Prevent Hostile Listeners from “Shouting Down” Controversial Speakers?

Illinois Law dean and professor Vikram David Amar and UC Davis Law emeritus professor Alan E. Brownstein propose and analyze a law to prevent hostile listeners from “shouting down” controversial speakers that, arguably, would pass constitutional muster. Amar and Brownstein do not fully agree on which standard of review should apply to the regulation they propose, but they do agree that the mere fact that a general law is applied to conventionally expressive conduct does not always justify increasing the standard of review applied to it.

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 Co... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan is an economist and legal scholar and a Professor of Law at The George Washington U... more

Sherry F. Colb
Sherry F. Colb

Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell University. Colb tea... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973. Befo... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He has w... 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 of L... more

Marci A. Hamilton
Marci A. Hamilton

MARCI A. HAMILTON is the Robert A. Fox Leadership Program Professor of Practice, and Fox Family Pavi... more

Joseph Margulies
Joseph Margulies

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

Anita Ramasastry
Anita Ramasastry

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

Ronald D. Rotunda
Ronald D. Rotunda

Ronald D. Rotunda is the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence... more

Lesley Wexler
Lesley Wexler

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