Analysis and Commentary Posted in 2011-07
The Tea Party: Same Old Authoritarian Conservatives With a New Label

Justia columnist and former counsel to the president John W. Dean comments on the Tea Party movement. Dean contends that, far from being a truly new force, the Tea Party’s membership is recognizable as consisting of the very kind of authoritarian conservatives America has often seen in past politics. Drawing on the work of Professor Robert Altemeyer, who devoted much of his career to studying the authoritarian personality, Dean notes the telltale characteristics of authoritarian conservative; argues that each of these signal qualities can be seen clearly in Tea Party movement adherents; and cautions that authoritarians do not tend to do well, over the long haul, in a democracy.

All Roads Lead to Accountability

Justia columnist and Cardozo law professor Marci A. Hamilton urges that the Catholic Church urgently needs to take responsibility—and foster an ethic of accountability—regarding clergy child-sex-abuse cases. In describing the path that she argues the Church must take, Hamilton compliments a recent speech by Irish Prime Minister Enda Kenny, and a book by Jason Berry on money and the Church. As she explains, these writings, too, call for responsibility and accountability from the Church, and for the enforcement of civil law by the courts, in clergy child-sex-abuse cases.

Why Suppress Illegally Obtained Evidence? The U.S. Supreme Court Decides Davis v. United States

Justia columnist and Cornell law professor Sherry Colb clarifies for readers one of the most complicated issues within the Supreme Court’s jurisprudence: the suppression of evidence that the police have obtained illegally. Colb focuses, in particular, on a case decided during the past Supreme Court term that presented a thorny question: If police follow appellate court precedent while performing a search, but the Supreme Court later reverses that very precedent, was the search legal (because appellate case law authorized it at the time) or illegal (because the Court decided later that the appeals court had erred)? In addition to discussing this issue, Colb also focuses on a number of major Court decisions in the area, to shed light on the evolution of Court doctrine.

“Respect” or “Defend” Marriage? The Senate Considers a Bill to Repeal the Defense of Marriage Act of 1996 (DOMA): Part One in a Two-Part Series of Columns

In the first in a two-part series of columns about the Defense of Marriage Act (“DOMA”), Justia columnist and Hofstra law professor Joanna Grossman comments on the origins of DOMA; the reason DOMA did not have any practical implications until 2004; and why, even now, Section Two of DOMA has had no real effect. In Part Two of the series, Grossman will go on to consider Section Three of DOMA, which has had serious real-life implications, for it says that same-sex marriages cannot be recognized for any federal purpose.

When Do Message-Board Rants Count as Illegal Threats Against a Presidential Candidate? The Issue That Caused a Ninth Circuit Panel to Split, 2-1

Justia columnist, attorney, and author Julie Hilden comments on a recent, split decision from a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit. As Hilden explains, the case involved the “true threats” doctrine, which determines when a statement is an illegal threat, and when it is protected by the First Amendment. The defendant’s message-board postings about then-candidate Obama were ominous, but were they full-fledged threats under the legal test? Hilden explains why two Ninth Circuit judges said no, but one said yes.

The Sixth Circuit’s Big Rulings on Obamacare and Affirmative Action: The Second in a Two-Part Series of Columns

Justia columnist and U.C. Davis law professor Vikram David Amar completes his two-part series of columns on two key decisions from the U.S. Court of Appeals for the Sixth Circuit. His last column focused on the Circuit’s Obamacare ruling; this one focuses on the Circuit’s ruling on an issue relating to affirmative action. Amar describes two different lines of Supreme Court precedent that offer different ways of analyzing affirmative action cases, and considers the possibility that the Court will take the opportunity—by reviewing this or another lower-court decision—to clean up apparent tensions between these two lines of High Court cases.

Humanitarianism As Terrorism

Justia columnist Joanne Mariner, attorney and director of Hunter College’s Human Rights Program, discusses the situation in Somalia, which is experiencing a famine in the midst of armed conflict—leading refugees to flee the country for Kenya and Ethiopia. The situation, as Mariner explains, has created a humanitarian emergency and has led to a horrifyingly high death rate of both refugees and those still in Somalia. Though the Somali regime’s ban on foreign aid has been lifted, Mariner explains that extremely broad U.S. restrictions on “material support to terrorist organizations” have made innocent humanitarian groups wary of providing aid in areas controlled by Al Shabaab, the Al Qaeda-affiliated Islamist group that controls most of Somalia’s territory. Mariner calls for expedited licenses ASAP, so that humanitarian groups can operate free of fear, and calls for legal reform for the future.

The Strauss-Kahn Accuser’s Defamation Suit Against the New York Post: As a Matter of Strategy, Should It Have Been Filed Now, Later, or Never?

Justia columnist, attorney, and author Julie Hilden comments on a recent development in the criminal case against Dominique Strauss-Kahn: The accuser has filed a defamation claim against the New York Post for articles suggesting she has worked as a prostitute. Hilden comments on the timing of the defamation action, and the decision, in that action, to target only the Post’s claims that she is a prostitute, and not its other potentially damaging claims about her—including its claims that she has lied.

Sister Wives: An Illustration of Why Polygamy Is, and Should Be, Illegal

Justia columnist and Cardozo law professor Marci Hamilton comments on the reality television show Sister Wives and the litigation that is connected to it. The family depicted on Sister Wives—consisting of one man, four “wives,” and 16 children—fled Utah to avoid potential bigamy charges. (Nevada’s bigamy law defines the offense in a less restrictive way than Utah’s does.) Now, the family’s lawyer, Jonathan Turley, is challenging Utah’s law as unconstitutional. Hamilton contends, to the contrary, that the law is perfectly constitutional, and explains the history of the law and the related precedent in support of her argument.

Did News of the World Hack Phones Located in America? What the Legal Consequences May Be, If It Also Happened Here

Justia columnist and U. Washington law professor Anita Ramasastry covers an interesting angle on the still-unfolding News of the World hacking scandal: the possibility of not only British, but also U.S., civil suits and criminal charges against the hackers. As Ramasastry explains, several British celebrities, including Jude Law and David Beckham, believe that their cellphones were hacked while they were in the United States. Even more disturbingly, it is possible that the cellphones of 9/11 victims were also hacked. Ramasastry details the U.S. laws that might apply to these cases, and other potential cases in which cellphones were hacked while their owners were within U.S. jurisdiction and accessing U.S. cellular networks. Ramasastry also offers advice to ordinary Americans who want to make sure that they are protected from hacking while using their cellphones.

The Constitutionality of Senator McConnell’s “Last-Choice Option” for Averting Default

Justia columnist and Cornell law professor Michael Dorf weighs in on the debate over whether Senator Mitch McConnell’s plan to prevent the federal government from defaulting on its obligations is constitutional. Dorf explains McConnell’s plan and analyzes three possible constitutional objections to it, concluding that none of these objections is, in the end, persuasive. Indeed, Dorf suggests that the more closely one looks at the plan, the more clear it is that it should be a first choice among possible solutions.

The Reality Show Sister Wives: Will Its Stars Prevail in Their Civil Rights Lawsuit?

Justia columnist and Hofstra law professor Joanna Grossman covers the bigamy case that may soon arise from the reality TV show Sister Wives. As Grossman explains, the family at issue consists of a man, his four wives (one via legal marriage, and three via “spiritual marriage”) and his sixteen children and stepchildren. The family fled from Utah to Nevada to evade possible bigamy charges from Utah authorities. Grossman contrasts the bigamy laws of the two states, and considers whether the Supreme Court precedent of Lawrence v. Texas—the 2003 case where the Supreme Court held that the constitutional right of privacy includes a right of adults to enter into consensual, intimate relationships without interference from the state—protects bigamists.

Rupert Murdoch’s Watergate: The Troubling Parallels

Justia columnist and former counsel to the president John Dean comments on the voicemail hacking scandal surrounding News Corp.’s News of the World, drawing a parallel between the unfolding of this scandal and the unfolding of Watergate. Dean applies the framework sketched out in Cambridge sociologist John B. Thompson’s 2000 work Political Scandal: Power and Visibility in the Media Age to predict what will happen next to Rupert Murdoch, the Chair and CEO of News Corp.

Caylee’s Law and What We Really Need to Do Now to Better Protect Children: Three Proposed Legal Reforms

Justia columnist and Cardozo law professor Marci Hamilton comments on some of the lessons of the Casey Anthony trial, regarding protecting children. Hamilton begins by agreeing with calls for a law imposing strict punishment upon parents whose children go missing, but who never, or belatedly, tell the authorities their children are gone. She then goes on to suggest other reforms: a RICO amendment to sweep in child sex abuse, the institution of mandatory sex-abuse education within the sex education curriculum in schools, and the abolition of statutes of limitations for child sex abuse.

Bryant v. Michigan and the Supreme Court’s Failed Approach to the Confrontation Clause

Justia columnist and Cornell law professor Sherry Colb discusses a Supreme Court case from earlier this year concerning the Constitution's Confrontation Clause, which guarantees the right to confront one's accuser. She also, and more broadly, comments on the ongoing difficulties within the Court's Confrontation Clause jurisprudence as it has evolved over the years—difficulties that she argues call for important doctrinal revisions. Colb notes that the Court has read the confrontation right to confer an entitlement to cross-examine testifying witnesses, and that the right can apply to some out-of-court statements, as well—due to a rule with a rationale rooted in the early, troubling precedent of Sir Walter Raleigh's Case. Colb also makes clear the relationship between confronting one's accuser and the admission of hearsay in court.

The Last Word: The Supreme Court Rules That Anna Nicole Smith Is Entitled to Nothing From Her Late Husband’s Estate

Justia columnist and Hofstra law professor Joanna Grossman comments on the culmination of the lengthy fight over the estate of Anna Nicole Smith’s late husband, J. Howard Marshall II, a billionaire Texas oil tycoon. J. Howard’s son Pierce was the other party asserting a claim to the estate. After Anna Nicole and Pierce both passed away, the litigation still continued, pursued by their own estates. Grossman chronicles how this clash made it all the way to the Supreme Court twice; explains why the dispute had spawned litigation in both Texas and California; and describes the reasons that led the High Court to ultimately rule against Anna Nicole—and why it inspired Chief Justice Roberts to quote from the Dickens novel “Bleak House.”

The Debt Ceiling Law Is Unconstitutional: A Reply to Professor Tribe

Justia columnist, George Washington law professor, and economist Neil Buchanan responds to a recent New York Times editorial by Laurence Tribe regarding the constitutionality of the federal government's debt ceiling. Tribe contended that the limit is constitutional; Buchanan contends that it is not. In his column, Buchanan summarizes and responds to Tribe's arguments regarding the key constitutional provision at issue, the Public Debt Clause.

The Sixth Circuit’s Big Rulings on Obamacare and Affirmative Action: The First in a Two-Part Series of Columns

Justia columnist and U.C., Davis law professor Vikram Amar begins a two-part series on two important recent rulings by the U.S. Court of Appeals for the Sixth Circuit, both of which may end up before the Supreme Court. In this first column, Amar comments on the Sixth Circuit ruling that upheld Obamacare—citing a number of factors that make the decision noteworthy. These factors include a conservative judge's vote to uphold Obamacare; that same judge's use of broad reasoning in doing so; the fact that the dissenter was a district court judge; the decision's timing; and the arguments the two judges in the majority could have made, but declined to make, in support of the statute.

The Debt-Limit Crisis: A Problem That Will Keep Coming Back Unless President Obama Takes a Constitutional Stand Now

Justia columnist, George Washington University law professor, and economist Neil H. Buchanan comments on the current situation regarding the federal debt limit, considers how it could be resolved, and notes that President Obama could take a constitutional stand in order to resolve the impasse. Buchanan begins by explaining for readers what the debt limit is and why it is important now; explains why the debt-limit law that set the ceiling was never necessary in the first place; describes the potentially very grave consequences of passing the debt-limit ceiling with that law in place, as it is now; and contends that our current game of political “chicken” regarding the debt limit is dangerous indeed. He then describes a possible constitutional solution that President Obama could opt for, based on arguments that the debt limit is illegitimate and void as a matter of constitutional law. Finally, Buchanan explains why, even if the debt limit were to be removed from the picture, an underlying, related problem with the political process would still remain.

Recent Lawsuits Allege Illegal Downloading of X-Rated Films and Sexploitation “B” Movies: Will Their Claims Against Large Groups of Individual Consumers Succeed?

Justia columnist and U. Washington law professor Anita Ramasastry comments on a new spate of lawsuits, which are being filed by the producers of X-rated movies and "B" movies and which target persons who the producers claim downloaded these movies for free via BitTorrent. Ramasastry explains how the suits work; contrasts them with earlier suits by the Recording Industry Association of America (RIAA) against alleged music downloaders; and concludes that while the movie companies surely have the right to enforce their copyrights, several procedural aspects of these suits are very disturbing and should be addressed by the courts. Ramasastry also notes that the settlements the companies are seeking, and getting, from individuals appear to be quite high.

Meet our Columnists
Vikram David Amar
Vikram David Amar

Vikram David Amar is a Distinguished Professor of Law at UC Davis School of Law and a Professor... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan, an economist and legal scholar, is a visiting professor at both Osgoode Hall... 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

Samuel Estreicher
Samuel Estreicher

Samuel Estreicher is the Dwight D. Opperman Professor, Director, Center for Labor and Employment... more

Leslie C. Griffin
Leslie C. Griffin

Dr. Leslie C. Griffin is the William S. Boyd Professor of Law at the University of Nevada, Las... 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

Professor Marci A. Hamilton is a Professor of Practice in Political Science at the University of... more

Joseph Margulies
Joseph Margulies

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

Austin Sarat
Austin Sarat

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at... more

Laurence H. Tribe
Laurence H. Tribe

Laurence H. Tribe is the Carl M. Loeb University Professor Emeritus at Harvard University and... more

Lesley Wexler
Lesley Wexler

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