Tag Archives: Legal

Carpenter and the Beginning of the End of Privacy

Cornell law professor Sherry F. Colb comments on the US Supreme Court’s recent decision in Carpenter v. United States, in which the Court held that the government must have a search warrant to obtain an individual’s cell-site location information (CSLI). Colb describes the Court’s holding and the dissenting opinions, and considers the Court’s minority (but growing) view that only property, and not privacy, is protected under the US Constitution—particularly when privacy rights encompass the right of a woman to obtain an abortion and the right of same-sex couples to engage in private, consensual sexual acts.

Can the Feds Subject “Sanctuary” Jurisdictions to Liability for Crimes Committed by Private Persons Who Are in the US Unlawfully?

Illinois law dean and professor Vikram David Amar considers whether the federal government can subject so-called sanctuary jurisdictions to liability for crimes committed by private persons who are in the United States unlawfully, as two Republican-backed legislative proposals seek to do. Specifically, Amar discusses whether such liability constitutes unconstitutional commandeering of states under existing Supreme Court precedent.

The Supreme Court Is Still Incoherent About Taxes and Finance, But the Conservatives Seem to Know What They Want

GW law professor and economist Neil H. Buchanan comments on two of last week’s decisions from the US Supreme Court that at least nominally involved tax law issues. Buchanan explains why the decisions suggest that the justices remain confused about taxes and financial issues more generally and suggests that the lower-profile case from last week may end up having the most important and negative effects going forward.

Justice Kennedy’s Replacement and the Religious Test Awaiting

Marci A. Hamilton, professor and resident senior fellow in the Program for Research on Religion at the University of Pennsylvania, comments on this week’s news from the US Supreme Court—its decisions upholding President Trump’s travel ban, striking down a California law affecting so-called crisis pregnancy centers, and the news that Justice Anthony Kennedy will be retiring. Hamilton cautions that the cases portend that, President Trump will, in effect, impose a religious test on candidates for Justice Kennedy’s replacement—a requirement expressly prohibited by the Constitution.

The Aftermath of the #MeToo Movement

SMU Dedman School of Law professor Joanna L. Grossman gives a brief overview of the #MeToo movement and describes the great strides our society has made, yet also the challenges it still faces. Specifically, Grossman points out that it is now time for businesses and lawmakers to figure out how best to prevent sexual harassment while protecting women’s career opportunities.

Burn Pits are the New Agent Orange: The Limited Circle of Concern for Pollution Victims of War

Illinois Law professor Lesley Wexler explains why the open air burn pits as used in recent conflicts such as Iraq and Afghanistan are being called the “new Agent Orange.” Wexler describes the challenges combatants, their children, contractors, and civilians have had in obtaining care for long-term injuries as a result of the use of Agent Orange during the Vietnam War and expresses concern that the same may occur for burn pits.

How Do YOU Think About the Right to Vote?

UNLV Boyd School of Law professor Leslie C. Griffin comments on the US Supreme Court’s 5–4 decision in Husted v. A. Philip Randolph Institute, in which the Court upheld the legality of Ohio’s voter list maintenance procedure. Griffin explains some of the key points made in each of the four opinions and shares a deeply personal story about how she came to understand how seemingly innocuous list-maintenance laws like the one in this case disproportionately affect minorities, low-income people, the disabled, the homeless, and veterans—just as Justice Sotomayor described in her separate dissent.

The Children Mistreated at the Border Are a Wake-up Call: It’s Time for the United States Senate to Ratify the UN Convention on the Rights of the Child

In light of US immigration policy of separating immigrant children from their parents at the borders, Marci A. Hamilton, a Fox Distinguished Scholar in the Fox Leadership Program at the University of Pennsylvania, calls on the United States Senate to ratify the UN Convention on the Rights of the Child. Hamilton points out that the United States is the only country in the world not to ratify it, and that its failure to do so is entirely indefensible.

Rental Cars, Privacy, and Suppression of Evidence

Cornell law professor Sherry F. Colb comments on the recent decision by the US Supreme Court in Byrd v. United States, in which the Court unanimously held that a lawful but contractually unauthorized driver of a rental car has a reasonable expectation of privacy against police searches of the car. Colb explains that the Court’s ruling is significant for more than its face value; it signals a rejection of property-linked formalism and bolsters the ability of the Fourth Amendment to keep certain types of police in check.

The Closing of European Ports: Catastrophe or Immigration Crisis Management?

Illinois Law professor Lesley Wexler considers the significance of various countries’ responses to the rescue of 629 migrants on the Aquarius, a humanitarian rescue ship on the Mediterranean Sea. Wexler considers first whether the responses of Italy and Malta were lawful, and then turns to the question of what their conduct means for immigration policy, not only within the European Union, but worldwide.

Trust But Verify: The Legal Duties of Broker-Dealers in the Financial System, Part Two

In this second 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, considers the significance of specific words in the context of broker-dealers and their clients and discusses the legal consequences of using certain words over others. Specifically, Frankel clarifies that financial securities are not “products” and the servicers are not an “industry”; rather, brokers are agents providing services, and explains why broker-dealers should owe a fiduciary duty to their clients, who entrust their money—and sometimes their life’s savings—to them.

Attitudinal and Doctrinal Takeaways from the Masterpiece Cakeshop Case

Illinois Law dean and professor Vikram David Amar and UC Davis Law emeritus professor Alan E. Brownstein discuss two doctrinal issues raised in the Supreme Court’s majority and concurring opinions in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. Amar and Brownstein explain how Colorado could have reached the results it reached without disfavoring religion or religious liberty/equality at all, and they point out that the Court’s focus on the motives of the commissioners is unusual given the Court’s prior decisions on the role of invidious motives.

Good News About Social Security

GW Law professor and economist Neil H. Buchanan explains why Social Security is so important, and why Republicans’ claim that it is “going to go broke” is so dishonest. Buchanan briefly describes how Social Security was designed and why, because of that design, it is performing exactly as expected and intended when it was set up.

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.

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