Tag Archives: Legal

Originalism, the Contracts Clause, and the Sveen Case

Cornell law professor Michael C. Dorf argues that the form of originalism typically espoused by scholars—in which constitutional interpretation aims to recover the original public meaning of the text—often ends up being abused in practice. Judges and justices borrow the respectability of public meaning originalism to justify a generally discredited form of originalism that seeks answers in the framers’ and ratifiers’ intentions and expectations. To illustrate this point, Dorf points to Justice Gorsuch’s recent dissent in Sveen v. Melin, which looks not to the text of the Contracts Clause but to what Justice Gorsuch inferred the framers and ratifiers intended and expected.

Children Are Not the Property of This Administration to Recklessly Traumatize: Stop Ripping Them Away from Their Parents at the Border

Marci A. Hamilton, a Fox Distinguished Scholar in the Fox Leadership Program at the University of Pennsylvania, decries the policy of the Trump administration of separating children from their parents at US borders. Hamilton explains the trauma such a policy causes and calls upon individuals and organizations to shine a spotlight on its deeply negative consequences.

Exceptional, but not an Exception

Cornell University law professor Joseph Margulies relates the story of one young man whose early life experiences and mistakes landed him in prison but who, after excelling in the Cornell Prison Education Program—a program in which Cornell professors teach university classes to prisoners—was released on parole after his first parole hearing and now attends Cornell University as a student. Margulies explains that this young man—Darnell Epps—may be exceptional, but he is not unique in being a person incarcerated at an early age who can redeem himself and contribute great things to our society.

When Is an LGBTQ Rights Case Not About LGBTQ Rights? When It’s the Masterpiece Cakeshop Decision

Marci A. Hamilton— one of the country’s leading church-state scholars and the Fox Professor of Practice and Fox Family Pavilion Resident Senior Fellow in the Program for Research on Religion in the Fox Leadership Program at the University of Pennsylvania—comments on the recent decision by the US Supreme Court in Masterpiece Cakeshop v. Colorado Civil Rights Commission. Hamilton explains the scope and limitations of the Court’s decision and notes the significance of its narrow holding in that case.

End of an Era: New Jersey Legalizes Surrogacy, 29 Years After Baby M

SMU Dedman School of Law professor Joanna L. Grossman comments on the New Jersey legislature’s recent passage of a bill to legalize gestation surrogacy. Grossman describes the long battle over surrogacy in that state, from the nationally influential decision by its supreme court, In the Matter of Baby M, to two surrogacy bills passed by the legislature but vetoed by then-Governor Chris Christie, to the present bill signed into law by Governor Phil Murphy.

A Guided Tour Through the United States v. California Lawsuit Challenging Some of California’s “Sanctuary” Policies

Illinois Law dean and professor Vikram David Amar comments on the lawsuit filed by the Trump administration against California over its so-called sanctuary policies. Amar explains why the federal government is likely to prevail on one claim, to lose on another claim, and to lose in part on the third claim. Amar laments that both sides seem to assert extreme positions that are not entirely tenable.

Far-Reaching Implications of a Narrow Supreme Court Ruling on Tribal Sovereign Immunity

Cornell University law professor Michael C. Dorf comments on the US Supreme Court’s ruling in Upper Skagit Indian Tribe v. Lundgren, but more specifically the implications of Chief Justice Roberts’s concurrence in that case. Dorf argues that the Chief Justice’s concurrence, taken to its logical conclusion, broadly undermines the basis for much of the Court’s case law involving the sovereign immunity of US states.

Big Business Battles the #MeToo Movement

Marci A. Hamilton, a Fox Distinguished Scholar in the Fox Leadership Program at the University of Pennsylvania, describes how insurance, chamber of commerce, and religious lobbyists are impeding child sex abuse victims’ access to justice in several states. Hamilton points to three states that were considering bills that seemed optimistic but have since been turned sideways by big business and powerful lobbyists.

The Perceived Threat of Trans Identity

Cornell University law professor Sherry F. Colb explores the reasons behind some people’s refusal to refer to trans men as men and trans women as women. Colb describes some of the concrete harms caused by such refusal, such as policies sending trans women to prisons for the wrong gender—a policy Colb argues violates the Eighth Amendment under the Supreme Court’s jurisprudence.

What Senator Grassley’s Recent Exhortation to (Conservative) Justices to Retire Promptly Says About our Federal Judicial Selection System

Illinois Law dean and professor Vikram David Amar laments the present state of the federal judiciary system, recently illustrated by Senator Chuck Grassley's call to conservative Supreme Court justices to retire promptly. Amar explains why the proposal of term limits for Supreme Court justices would address some of the concerns of partisanship and would not present issues of judicial independence or due process.

AT&T’s Hiring of Michael Cohen Was a “Big Mistake,” But Was It More?

Cornell University law professor Michael C. Dorf discusses a statement by AT&T CEO Randall Stephenson calling his company’s decision to hire Donald Trump’s personal lawyer Michael Cohen “a big mistake.” Dorf describes under what circumstances AT&T’s hiring of Cohen would amount to a crime, and under what circumstances his hiring would not only be legal but a corporate obligation. As Dorf explains, the proper classification of the decision requires more information than the public currently has.

The Sex Assault Avengers: The Enemies and a Superpower

Marci A. Hamilton—one of the country’s leading church-state scholars and the Fox Professor of Practice and Fox Family Pavilion Resident Senior Fellow in the Program for Research on Religion in the Fox Leadership Program at the University of Pennsylvania—analogizes Marvel’s blockbuster Avengers movie with the far more serious (and real) fight for justice for sexual assault victims. Hamilton explains in terms understandable to any moviegoer why statutes of limitations on sexual abuse claims allow the “bad guys” to win.

Rape, Racism, Free Speech, and Fraternities

Cornell University law professor Sherry F. Colb examines two (real, but slightly altered) conversations in order to explore the thoughts and feelings that might affect the weight we give to principles that support our positions, while disregarding the same principles when they run contrary to our positions. Colb describes the interrelatedness of conversations that arise regarding rape, racism, and free speech, specifically in the context of college fraternities, but applicable to many other situations.

Bad Apologies and the Windrush Scandal

Illinois Law professor Lesley Wexler comments on the Windrush scandal developing in the United Kingdom, just one example of immigration policies that affect not only undocumented migrants present unlawfully but also undocumented citizens present lawfully. Wexler explores the reasons for the scandal and identifies troubling shortcomings in the apology and remedy offered.

Understanding Free Speech Controversies on College Campuses: A Summary of a Very Helpful Conversation Between Two Leading Analysts—Erwin Chemerinsky and Geof Stone

Illinois Law dean and professor Vikram David Amar relates insights on campus free speech principles that came up during a recent discussion with renowned constitutional commentators Erwin Chemerinsky and Geof Stone. Among the insights are some possible explanations for why many college students today seem opposed to allowing offensive speech on campus, the different perspectives on the proper role of university officials regarding controversial guest speakers, and the question of when the costs of providing security for controversial speaker events justifies the cancellation or termination of the event.

Stealth Attacks on People’s Lives via Boring Economics

George Washington law professor and economist Neil H. Buchanan debunks the supposedly simple solutions some purported economists have for complex problems. Buchanan explains that regardless of where one is on the political spectrum, complex social and economic issues—particularly the housing crisis affecting many cities across the country—require considering a number of factors and cannot be solved by “simply” assuming away real-life complications.

Appeals Court Rejects PETA’s “Monkey Selfie” Case

Cornell University law professor Michael C. Dorf comments on a recent Ninth Circuit decision rejecting an effort by PETA to bring a copyright lawsuit on behalf of Naruto, a crested macaque. Dorf points out that while the result in that case is unsurprising, the court’s reasoning raises important questions about the role of lawsuits and law more generally in furthering the interests of nonhuman animals.

Trust but Verify: The Legal Duties of Broker-Dealers in the Financial System

In this first of a multi-part series of columns about the legal duties of broker-dealers, Tamar Frankel, the Robert B. Kent Professor of Law at Boston University School of Law, defines fiduciaries and explains the rationale for their duties. In the following columns, Frankel considers the significance of specific words in this context, the legal consequences of such words, and potential ramifications.

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 the C.S. Wong Professor of Law at Cornell University. Colb teaches courses in con... 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

Lesley Wexler
Lesley Wexler

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