Analysis and Commentary Posted in 2011-08

When Qaddafi Was Our Friend

Justia columnist Joanne Mariner, an attorney and the head of Hunter College’s Human Rights Program, comments on the end of Muammar Qaddafi’s rule, and reminds readers that for much of the past decade, the United States actually saw Qaddafi as a friend, rather than an enemy. Mariner points out that during the Bush years, Qaddafi’s human rights violations were not simply overlooked but actually exploited, as Condoleezza Rice, in 2006, encouraged others to see Libya’s leadership as a model to follow. Mariner covers the connection between Libya and the CIA, and Libya and the practice of rendition, and explains how statements, made under torture, from a man who was detained in Libya and elsewhere led to the claim of a relationship between Saddam Hussein and al-Qaeda.

Will It Be Business as Usual For Oil Companies Operating in Libya? Why the Answer Is Not an Unequivocal Yes

Justia columnist and U. Washington law professor Anita Ramasastry explains some of the options for Libya’s transitional government, when it comes to the country’s oil resources. Ramasastry explains both the traditional premise that successor regimes need to honor previously negotiated sovereign agreements, and the new trend for sovereigns to renegotiate deals entered into by previously corrupt officials—and the legal basis for such renegotiation. She also argues that the transitional government, and its future governments, should opt for greater transparency in any new oil concessions that are granted, in order to instill confidence in the new government, especially among Libya’s citizens. In addition, she compares the situation relating to contracts to those that have occurred in Iraq and, especially, Liberia.

The Fight Over Alabama’s Immigration Law Features Increasingly Estranged Allies: Conservative Populists Versus Big Business

Justia columnist and Cornell law professor Michael Dorf examines the way in which an Alabama immigration law—which would place the state in the role of enforcer of federal immigration laws—illustrates a schism that may be growing between two conservative constituencies: populists and corporatists. Dorf illustrates his point about the schism by reference to the controversies over the Troubled Assets Relief Program (TARP) and over immigration, which have split the Republican Party. He also asks if populist conservatives and business conservatives can ever truly get along—and notes ways in which the Supreme Court has been surprisingly supportive of the populists.

A Closer Look At The Defamation Lawsuits Against Eliot Spitzer: Why They Seem Quite Weak

Justia columnist and former counsel to the president John W. Dean discusses a set of interesting defamation lawsuits that were filed, earlier this month, in New York federal and state courts, against former New York Attorney General (and, later, New York Governor) Eliot Spitzer. The suits are based on an opinion piece that Spitzer wrote for Slate.com, about a year ago, which concerned past criminal charges that had been brought against employees of insurance/finance powerhouse Marsh & McLennan. Dean covers the background law on public-figure defamation suits; explains why the plaintiffs in the suits against Spitzer may have trouble meeting the basic defamation-law requirement that the statements at issue must be “of and concerning” them; and notes that if New York had a stronger anti-SLAPP statute, Spitzer might have been able to file a countersuit against the two plaintiffs who are suing him.

Assessing Former U.S. Senator Rick Santorum as a 2012 Presidential Candidate: Part Two in an Ongoing Series on the Likely Candidates and Their Views on Religion

Justia columnist and Cardozo law professor Marci Hamilton continues her series of columns on the 2012 presidential candidates’ views on religion, with an analysis of the views of Rick Santorum, a former U.S. Senator from Pennsylvania. Hamilton critiques Santorum for failing to respect the Constitution’s separation of church and state, and for expressing support for states’ rights while also endorsing federal legislation that would displace state power, when it comes to certain policies he favors.

The Supreme Court Agrees to Review the Constitutionality of Strip Searching All Arrestees Who Enter a Jail

Justia columnist and Cornell law professor Sherry Colb discusses the constitutional issues raised by government strip searches, and the relevant Supreme Court precedents. She focuses, as well, on a Supreme Court case that will be decided during this coming Term, Florence v. Board of Chosen Freeholders. There, the Court will—for the first time since 1979—consider whether officials in a jail may strip search inmates in the absence of any individualized suspicion. Colb notes that the case will raise a key question for the Court to consider: Does the Constitution extend any protection for privacy to the people who reside in a detention facility?

Why the Seventh Circuit Allowed U.S. Citizens to Sue Former Secretary of Defense Rumsfeld for Torture

Guest columnist and Justia editor David S. Kemp comments on a recent decision from the U.S. Court of Appeals for the Seventh Circuit, which permitted two American citizens to sue several U.S. military officials and former Secretary of Defense Donald Rumsfeld for violating their constitutional rights. In that case, the plaintiffs alleged that Rumsfeld authorized the officials to detain and torture them for several months in Iraq, and that they were subsequently released without being charged with any crime. Kemp covers the three essential questions that had to be answered before the suit could proceed; explains the nature of Bivens claims, through which a plaintiff can bring suit against federal officials (such as, here, Rumsfeld) by proceeding directly under a particular constitutional provision; and describes the two-part test federal courts use to decide whether a Bivens claim will be recognized.

Do Lesbian Co-Parents Have Rights? A Recent Ohio Ruling Offers an Unusual Answer

Justia columnist and Hofstra law professor Joanna Grossman discusses the evolving law on the rights of a lesbian co-parent—that is, a woman who participates in the planned conception, birth, and/or rearing of her same-sex partner’s biological or adopted child. Grossman focuses, in particular, on a recent Ohio Supreme Court case that took a somewhat unusual approach to defining the rights of lesbian co-parents. In addition, she describes other states’ varying approaches to the issue, and raises the question whether—in lieu of the traditional legal dichotomy between parent and non-parent—there may be some middle ground into which the legal status of a lesbian co-parent may fall.

An Indiana Federal District Judge Holds That Teens Have a First Amendment Right Not to Be Punished by Their School for Posting Saucy Photos Online

Justia columnist and attorney Julie Hilden comments on a recent decision by the Chief Judge of the U.S. District Court of the Northern District of Indiana, concerning students’ First Amendment rights. The case arose after two public-high-school students were suspended based on lascivious (but not nude) photos that they had taken of each other during a series of slumber parties, and posted for their Facebook and MySpace “friends” and for password-holders on a photo website. Their school argued that the girls had violated school policy, but the judge held that they had a right to take and post the photos at home. Important in the judge’s analysis was that the girls themselves did not bring the photos to school; a parent made a copy and brought the copy in. Hilden argues that the case—while rightly decided—underlines the need for Supreme Court clarification in this muddy area of law.

Assessing the Reasoning of the Eleventh Circuit Opinion Striking Down Obamacare

Justia columnist and U.C. Davis law professor Vikram David Amar comments on the recent decision by a divided three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit, striking down Obamacare’s “individual mandate” provision, which requires each person to obtain health insurance coverage or pay a sum of money to the U.S. Treasury. Amar considers and responds to the most important Commerce Clause arguments that the panel majority invoked: (1) the unprecedented nature of the mandate in federal law; (2) the lack of a requirement in the mandate provision that each regulated individual be doing anything that affects the economy; (3) the related problem that if Congress could mandate purchase of healthcare, there would be no stopping point to federal power; and (4) the fact that insurance and healthcare are matters of traditional state concern.

David Hicks’s Guantanamo Memoir

Justia columnist Joanne Mariner, an attorney and the head of Hunter College’s Human Rights Program, comments on the memoir of David Hicks, an Australian who was incarcerated at the United States’ Guantanamo Bay detention facility for five-and-a-half years. Mariner notes that Hicks’s Guantanamo memoir is now one of many such works that detail interrogation practices and detention conditions at the facility. She also points out the book has recently made headlines due to the Australian government’s attempt to confiscate the royalties Hicks earned from his publisher, citing Australia’s Proceeds of Crime Act. Mariner notes the parallel between that Act and the United States’ “Son of Sam” laws, which the U.S. Supreme Court has occasionally held to be in violation of the First Amendment, and she explains other troubling aspects of the attempt to apply Australia’s Act to Hicks.

Can Public School Students Constitutionally Be Punished for Their Off-Campus Comments on Social-Networking Sites or Blogs?

Justia columnist and attorney Julie Hilden comments on a case in which a young woman, Avery Doninger, sued her former high school for punishing her when she was a student there based on derogatory comments about school administrators that she posted while at home, on her home computer, after school hours, on a publicly accessible blog. Hilden notes that Doninger is now seeking Supreme Court review, based on a split among the federal circuit courts regarding cases similar to her own. Hilden explains two key Supreme Court precedents on school speech, and contends that the Court would have to truly make new First Amendment law if it were to allow schools to punish students for online comments that, like Doninger’s, were made after school hours, at home, on home computers—even if the subject of the comments relates to other students or to school administrators.

An End to La Dolce Vita for Italian MPs? How a Menu, Social Networking, and Budget Woes May Lead to Much-Needed Reforms

Justia columnist and U. Washington law professor Anita Ramasastry focuses on a scandal that shows how posts on social networking sites may lead to much-needed reforms. As Ramasastry explains, the Facebook page of an anonymous person who goes by “Spider Truman” has played a key role in focusing public attention on the lavish lives of Italian Members of Parliament (MPs), and their alleged corruption. With Italy now in a severe financial crisis, disclosures on the site of “Spider Truman” concerning MPs’ many perks and alleged misconduct have enraged many, Ramasastry points out. Examples include the MPs’ menu of gourmet food at heavily subsidized prices, and their alleged fraudulent expense claims. Noting that UK MPs previously were part of a similar scandal that led to reform, Ramasastry contends that social networking may be a catalyst for greater governmental openness in Italy and elsewhere.

What Obama Should Say to the Nation

Justia columnist and Cornell law professor Michael Dorf notes that many Americans have expressed disappointment in President Obama’s recent speeches. But, of course, it’s easy to criticize, and much harder to detail what the President actually should be saying. That’s exactly what Dorf does in this column—even going so far as to offer his own hypothetical stump speech for President Obama to deliver—a speech addressing tough issues like tax cuts; how, exactly, to put Americans back to work; and one key policy and legal point that Republicans and Democrats alike ought to agree upon.

Why News Corp.’s Board of Directors Is Clearly Still Under Rupert Murdoch’s Control

Justia columnist and former counsel to the president John Dean continues his commentary on the scandal regarding the reported hacking of voicemail messages by News Corp. employees. In this column, Dean contends that—despite Rupert Murdoch’s strong suggestions to the contrary—the Board of Directors of News Corp. is far from independent of Murdoch himself. Even so-called independent directors, Dean explains, have close ties to the Murdochs, and have been described by reporters as “Friends of Rupert.” Dean focuses, in particular, on the independent director Viet Dinh. And overall, he argues, citing a number of experts, that the News Corp. board’s standards when it comes to corporate governance and independent directors, are far too low.

Assessing Texas Governor Rick Perry as a 2012 Presidential Candidate: Part One in an Ongoing Series on the Likely Candidates and Their Views on Religion

Justia columnist and Cardozo law professor Marci Hamilton begins her series on likely 2012 presidential candidates and their views on religion. Here, Hamilton assesses the views of Texas Governor Rick Perry. She expresses concern, in particular, with Perry’s lack of belief in the separation of church and state, as exemplified by his speeches; finds in Perry’s record a belief that religion should drive politics; and questions Perry’s claimed beliefs in small government and in federalism.

Armed and Crazy: Should Mentally Ill People Be Permitted to Own Firearms?

Justia columnist and Cornell law professor Sherry Colb contends that laws broadly preventing certain mentally ill persons from possessing firearms may not be as obviously a good idea as they might seem at first glance. Currently, Colb explains, there is a federal law—passed in the wake of the Virginia Tech shootings—to simplify the identification and tracking of persons who have previously been committed to a mental hospital, and who have therefore been divested of their right to possess firearms; those rights, though, can later be restored. Interestingly, though, Colb notes that in other contexts, members of certain groups (such as men) may be statistically far more likely than their counterparts (such as women) to commit gun violence, and yet, are allowed to carry guns nonetheless. Colb also points out that certain types of mental illness, which might lead to commitment to a mental hospital, are not connected to gun violence at all, yet still are swept in by the law.

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

Justia columnist and Hofstra law professor Joanna Grossman continues her two-part series of columns critiquing the Defense of Marriage Act (DOMA)—which was recently the subject of Senate Judiciary Committee hearings. As Grossman notes, a bill is now pending that would reverse DOMA to the extent that DOMA defines marriage, for federal law purposes, as a union between one man and one woman. She describes the varied, pending litigation related to DOMA, and considers some of the reasons DOMA has garnered complaint and opposition: Critics say it imposes unfair disadvantages on married gay couples, and many have observed that DOMA has spawned a bureaucratic nightmare.

Preventing the Next Crisis: What We Must Do to Maintain the Public’s Confidence in the Financial System

Justia columnist, George Washington law professor, and economist Neil Buchanan suggests how, in the future, we can ensure that the debt limit is not, once again, used as a political weapon. He discusses three key solutions: (1) simply eliminating the debt limit via a presidential directive incorporating a Fourteenth Amendment analysis, as The New York Times suggested; (2) and following one of Yale Law professor Jack Balkin’s two suggestions, which are nicknamed “Big Coin” and “Exploding Option.” Buchanan provides background to ensure that readers fully understand each suggestion, and points out a downside to Balkin’s ideas: the public’s confidence in money and the monetary system may turn out to be fragile, if the system is experimented with.

The National Popular Vote Bill Proposal in California, and Ultimately (Perhaps) in Washington D.C.

Justia columnist and U.C., Davis, law professor Vikram David Amar argues in favor of America’s adoption of the National Popular Vote (“NPV”) proposal. As Amar notes, California may soon adopt the proposal, and if it does so, that would be a major development in the movement towards a direct national popular election for the Presidency. The essential idea, he explains, is to get states that, together, possess a sufficient number of electoral votes to sign onto an agreement that would require each signatory state to cast its electoral college votes not for the candidate who may have prevailed in that state, but rather for the candidate who won the most popular votes nationally. Amar points out that this idea could be put into effect without a constitutional amendment, considers the details of how the NPV proposal might work, addresses some possible criticisms, and notes that requiring Congressional approval for the proposal to take effect might be wise.

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 one of the country’s leading church-state scholars and the Fox Professor of Pra... more

David S. Kemp
David S. Kemp

David S. Kemp is an attorney and managing editor at Justia. He received his B.A. in Psychology from... 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, at... more