Analysis and Commentary Posted in 2012-02

Chipping Away at the NDAA

Justia columnist and Hunter College Human Rights Program Director Joanne Mariner discusses two recent steps toward limiting the scope of the detention provisions of the National Defense Authorization Act (NDAA), the controversial, recently-passed federal statute regarding the military detention and trial of terrorist suspects. The first step was an Obama Administration policy directive that effectively negates an NDAA section that purports to require that non-citizens suspected of strong links to terrorism be held in military, not civilian, custody. The second step was the commencement of a Senate Judiciary Committee hearing on the Due Process Guarantee Act, which was introduced after the NDAA was enacted into law. As Mariner explains, the Due Process Guarantee Act would protect both citizens and lawful permanent residents arrested in the U.S. against being detained indefinitely under a military rationale. Moreover, the Act would set a baseline prohibition on indefinite military detention in such cases, allowing such detention to be used only when Congress explicitly provides for it. Mariner sees these steps as constituting progress, but contends that amending the NDAA itself would have been a better remedy—especially as a presidential directive can always be reversed by a future president.

Should Target Tell Your Loved Ones You Are Pregnant, Or Should You? The Perils of Consumer Data Aggregation, Including Loss of Privacy

Justia columnist and U. Washington law professor Anita Ramasastry considers the sometimes disturbing ways in which retailers—both brick-and-mortar or online—use consumer data. Beginning with a New York Times story that related how a father learned of his teenage daughter's pregnancy when Target started sending her baby-related coupons, Ramasastry suggests that regulation is necessary if consumer privacy is to be protected, and that such regulation probably should render certain areas of private information strictly off-limits. Ramasastry discusses the Obama Administration's proposed set of consumer-privacy principles, called the Consumer Privacy Bill of Rights, and notes that the Administration's stance is that if Congress will not enact such principles into law, then the FTC has the power to enforce them via regulation. Ramasastry also discusses what, specifically, such principles could mean for retailers like Target. Finally, Ramasastry discusses existing websites that can help consumers protect their online privacy.

The Supreme Court Agrees to Hear an Affirmative Action Case Will the Justices Honestly Confront the Issues?

Justia columnist and Cornell law professor Michael Dorf comments on the Supreme Court’s recent decision to review a case involving race-based affirmative action in higher education.  As Dorf explains, the Court has not resolved an affirmative-action case since 2003, and thus this new case will be especially closely watched.  Dorf discusses the affirmative action precedents that the Court has already handed down, including the famous Bakke case, and the University of Michigan cases, Gratz and Grutter—the impact of which, Dorf explains, has been modest.  The new case that the Court will review, Dorf explains, involves the University of Texas's admissions system—which offers admission to all Texas students who rank in the top ten percent of their high school class, and also adds consideration of race as one of a number of factors in admissions decisions.  Dorf describes the issues the Texas case raises, and predicts that the Court's opinions—on both sides—will necessarily lack candor, as both liberals and conservatives pay lip service to an ideal of colorblindness, but do not actually hew to that ideal.

The Story and Legacy of the Greatest Judge of His Era, Henry Friendly

Justia columnist and former counsel to the president John Dean comments on the imminent publication of a biography by David M. Dorsen of esteemed jurist Henry Friendly, Henry Friendly: Greatest Judge of His Era. As Dean explains, Judge Friendly served on the U.S. Court of Appeals for the Second Circuit from 1959-1986, and his decisionmaking drew the highest praise from fellow judges and Justices. Dean provides an overview of the biography’s coverage, and notes that its emphasis is not on what Friendly decided, but rather on his decisionmaking process. Dean contends that this work—the product of six years’ research and hundreds of interviews—is not to be missed by either the serious scholar or the general reader. (Dean notes, for full disclosure, that he is a friend of Dorsen’s, but also quotes high praise for the book from Judge Richard Posner and others.)

The Lessons We Should Take From the Recent Hearings on President Obama’s Contraception-Coverage Compromise, and Other Battles Involving Religious Lobbyists

Justia columnist and Cardozo law professor Marci Hamilton comments on the recent hearings regarding contraception coverage for employees of religiously-affiliated institutions. Hamilton starts by going back to the time of the Framers, and noting their concerns about the potential abuse of power by legislators. In the context of the contraception-coverage debate, Hamilton argues, Congress is being overly influenced by religious and religiously-affiliated institutions’ lobbyists. Those lobbyists’ religious arguments, she contends, lack any constitutional or statutory basis, especially now that the Obama Administration has offered a compromise, under which the institutions would not have pay for their employees’ contraception coverage; insurance companies would pay instead. Hamilton parallels this fight with an earlier Congressional controversy, regarding RLUIPA, the Religious Land Use and Institutionalized Persons Act. She argues that there, too, religious institutions’ lobbyists sought—and gained—more for such institutions than could possibly be justified, because legislators capitulated when they should have held firm.

How to Limit the Damage Caused by the Citizens United Decision

Justia columnist and Cornell law professor Michael Dorf comments on ways in which election funding can still be made more fair and just—even after the Supreme Court’s highly controversial Citizens United decision. (In Citizens United, as readers may recall, the Court invalidated a provision of McCain-Feingold that forbade the use of general corporate-treasury funds or union funds for financing political advertisements during the sixty days prior to a primary or general election.) Dorf covers the impact of Citizens United; the impact of another recent campaign-finance Supreme Court decision that preceded it; the calls that some have made for a constitutional amendment allowing campaign-finance reform; and options that Congress still retains, even after Citizens United, to reform the campaign finance process—such as simply requiring that media companies provide campaigns with copious free advertising space and time.

A Federal Judge Thwarts Title VII and the Pregnancy Discrimination Act by Ruling Bizarrely That Lactation Is Not Related to Pregnancy

Justia columnist and Hofstra law professor Joanna Grossman comments on a recent case that was brought by a woman who alleged that she was fired because, after giving birth, she asked if she could pump breast milk in a back room at her workplace. The judge held that she did not have a right to do so, under either Title VII, which prohibits discrimination based on gender, or the Pregnancy Discrimination Act. Grossman takes strong issue with the ruling, which reasoned oddly that lactation and pregnancy are somehow unrelated. Grossman notes that the lactation-discrimination conflict is part of a long-running war—involving employers, employees, insurance companies, state governments, and the federal government—about whether women, alone, should bear all the consequences, costs and hardships of reproduction, or whether their employers and/or others must play a part. In addition to the lactation-discrimination case, Grossman also covers prior cases involving contraceptive equity and infertility discrimination, as well as discussing the legal protections that woman can turn to when the reproductive process conflicts with work, and the role the EEOC has played in this area of law.

Why Are So Many Economists So Unable to Help With the Ongoing Economic Crisis? Understanding What the Economics Profession Rewards and Penalizes

George Washington law professor and economist Neil Buchanan comments on the state of the economics profession today, linking it to the frustration many Americans feel when economists seem unable to come up with a clear set of prescriptions as to how the economy can be improved. Buchanan traces the root of the problem to the way in which economists are now trained, and the expectations placed upon PhD candidates. Ideally, Buchanan says, economists would be trained to study important and interesting real-world issues. Instead, he observes, they are not asked to actually try to understand the economy, but rather to master certain technical skills and to gain a command of topics in advanced mathematics that have limited, if any, direct real-world applications. Buchanan notes that some excellent economists do learn to grapple with real-world problems, but he observes that they do so more by happenstance, than as a result of their training. He traces the roots of this longstanding situation, and predicts that it will only change if and when the incentives presented to economics PhD candidates change.

The Right Way to Accommodate Religious Objections to the Contraception Coverage Mandate

Justia columnist Vikram David Amar and Justia guest columnist Alan Brownstein, both U.C., Davis law professors, comment on the recent controversy regarding Department of Health and Human Services regulations regarding the extent to which employees of religious organizations must be provided with insurance coverage for contraceptive services, as part of the insurance they obtain through their employment; and on President Obama’s proposed compromise. With Obama’s proposal drawing fire from both sides, Amar and Brownstein describe the framework in which they contend that the issue should be analyzed. Acknowledging both the serious religious liberty interest here and the value to many women of insurance that provides contraceptive access, Amar and Brownstein note that often, acknowledging such an interest also confers a benefit on the religious organization or person. (For instance, a true conscientious objector gains the benefit of not having to go to war, despite his sincerity and despite his not seeking out that benefit.) Here, if a religious institution does not have to cover contraceptive services, it not only vindicates its beliefs, but also saves money. Amar and Brownstein contend that part of the ideal approach to such questions would minimize such secular benefits of religious observance. They also note that another part of the ideal approach would be mitigate or spread the costs of honoring religious liberty, so that they do not fall disproportionately or heavily on an individual or group. Finally, they apply their ideal approach to the controversy over the HHS regulations, suggesting that religious organizations that are exempted from the regulations be asked to provide some kind of alternative to compliance—just as a conscientious objector in wartime would.

The Supreme Court Decides the GPS Case, United States v. Jones, and the Fourth Amendment Evolves: Part Two in a Two-Part Series of Columns

In Part Two in a two-part series of columns, Justia columnist and Cornell law professor Sherry Colb continues her commentary on the Supreme Court’s recent GPS (Global Positioning System) decision, which concerned the scope of the Fourth Amendment's protection against unreasonable searches and seizures. As Colb explains, the Court was unanimous regarding the decision’s result: The police had, indeed, performed a Fourth Amendment search or seizure by—without a warrant—attaching a GPS device to a suspect’s car, and then using the device to monitor the car's movements over a four-week period. Yet, as Colb points out, the Court was divided as to the reason for the result, offering two alternative rationales for the case's outcome. Here, in Part Two, Colb explains why Justices Scalia and Alito—both deemed to be conservative—nevertheless differed regarding what the proper rationale for the Court’s unanimous ruling ought to be. Colb argues that Justice Alito’s rationale is the more compelling of the two.

Divorce, Digital Identities, and Virtual Property: Who Gets Your Facebook Friends and Farmville Dollars When You Split Up?

Justia columnist and U. Washington law professor Anita Ramasastry addresses the intersection of divorce, digital identities and virtual property. In the course of her analysis, she asks an interesting question that is likely to become more and more prevalent, as virtual property becomes ever more popular and more valuable: When a couple is divorcing, what happens to their virtual property? Ramasastry also notes the role that Facebook has played as a cause or factor in many divorces, and considers the questions of whether, and how, virtual property should be divided in divorce proceedings. Moreover, noting the increasing use of social-networking activity in such proceedings, Ramasastry suggests that it's wise to be less social online—especially regarding new relationships—while divorce proceedings are still ongoing.

SOPA and the Future of Internet Governance

Justia guest columnist and Temple law professor David Post offers a clear, detailed explanation of SOPA (and similar bills), and the reasons why they eventually failed—and, Post argues, should have failed. As Post explains, SOPA’s aim was to reduce or eliminate access to websites that are dedicated to infringing activities, and are operating outside of U.S. borders. (Such offshore websites offer, for example, copyrighted music or movies for download, or sell knockoffs of trademarked products, all without proper authorization from the rights holder.) Post explains why SOPA failed, noting that it would have done damage to the technical infrastructure of the Internet. For that, and other reasons—including SOPA’s disregard for due process when it comes to foreigners and their sites—Post argues that SOPA’s plan for Internet law enforcement, based on seizing and sanctioning domain names, is deeply flawed.

Predicting Presidential Performance: Why Mitt Romney Would Be an Active/Negative President Like Bush II, Nixon, LBJ, Hoover, and Wilson

Justia columnist and former counsel to the president John Dean comments on the leadership style that Mitt Romney would likely employ if he were to be elected president. In characterizing Romney’s likely style, Dean relies in part on a framework developed by James David Barber in his book “The Presidential Character: Predicting Performance in the White House.” As Dean explains, Barber puts presidents into four categories, based on two factors: (1) how actively or passively the president performs in his political role; and (2) whether the president enjoys or dislikes the activities that his role requires. Whereas Dean deems President Obama an active/positive president under Barber’s scheme, like JFK and Clinton, Dean believes that Romney would be an active/negative president, as was George W. Bush. In light of these categorizations, Dean concludes that Obama ought to be allowed to finish what he has started, with a second term in office, and that—based on news accounts and on two recent biographies of Romney—a Romney presidency could well be more than the country can handle at this point in time.

The U.S. Court of Appeals for the Ninth Circuit Strikes Down Proposition 8: Three Key Elements of the Decision

Justia columnist and Cardozo law professor Marci Hamilton comments on several key aspects of the recent decision, by a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit, holding that Proposition 8—the initiative constitutional amendment purporting to abolish gay marriage in California—violates equal protection. Hamilton focuses, in particular, on (1) the standing issue and the problems the initiative procedure raised; (2) the question whether Prop. 8 had any legitimate purpose, or was simply driven by animus toward gay people; and (3) why the U.S. Supreme Court is unlikely to take the case.

The Supreme Court Decides the GPS Case, United States v. Jones, and the Fourth Amendment Evolves: Part One in a Two-Part Series of Columns

In Part One in a two-part series of columns, Justia columnist and Cornell law professor Sherry Colb comments on the Supreme Court's recent GPS (Global Positioning System) decision, which concerned the scope of the Fourth Amendment's protection against unreasonable searches and seizures. As Colb explains, the Court was unanimous regarding the decision’s result: The police had, indeed, performed a Fourth Amendment search or seizure by—without a warrant—attaching a GPS device to a suspect’s car, and using the device to monitor the car's movements over a four-week period. Interestingly, though, Colb points out that the Court was divided as to the reason for the result—offering two alternative rationales for the case’s outcome. Here, in Part One, Colb explains the seminal precedent of Katz v. United States, and other key Fourth Amendment precedents, including one that involved tracking a car with a beeper device. In Part Two, appearing here on Justia’s Verdict next Wednesday, February 15, Colb will consider why this case divided Justices Scalia and Alito.

The Beginning of the End of the Anti-Same-Sex-Marriage Movement

Justia columnist and Hofstra law professor Joanna Grossman comments on the situation in Washington State, which is now poised to legalize same-sex marriage. Grossman contends that the Washington State situation is significant not only because Washington State will now become the seventh state to legalize same-sex marriage, but also because—for the first time since the beginning of the same-sex marriage controversy—a state legislature will move from a statutory ban on same-sex marriage, to a statutory authorization of it. Grossman covers Washington State’s path through many different stages of the same-sex marriage controversy; the details of the bill passed by the Washington State senate; and the potential implications of the State of Washington’s experience for the same-sex marriage movement more generally.

How The Litigation Over California’s Anti-Same-Sex-Marriage Prop. 8 Gave Rise to a First Amendment Fight

Justia columnist and attorney Julie Hilden comments on a recent ruling by a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit, regarding videotapes of witness testimony in the Prop. 8 trial. The facts were as follows: Chief Judge Walker of the U.S. District Court for the Northern District of California, who presided over the trial, promised witnesses who supported the anti-gay-marriage Prop. 8 that the videotapes of their testimony would not be used except by the judge himself, in chambers, and he accordingly placed the videotapes under seal. However, Chief Judge Walker himself used some of the tapes during public appearances, and his successor, Chief Judge Ware, attempted to unseal the tapes despite Judge Walker’s promise to witnesses that the tapes would be kept under seal. Hilden notes the crucial difference here between a ruling, which can often be reversed or amended, and a direct promise to witnesses, on which the witnesses may rely. Here, the promise was especially grave, as witnesses suggested that they feared for their safety if the videotapes were to be released.

The Buffett Rule Is an Imperfect Form of Tax Justice, but an Important Step in the Right Direction

Justia columnist, economist, and George Washington law professor Neil Buchanan comments on the controversy regarding the “Buffett Rule,” Warren Buffett’s observation that he surely should not pay a lesser percentage of his income in taxes than his secretary does. This rule—and the principle behind it—proved to be especially relevant this week, Buchanan notes, when presidential candidate Mitt Romney released some of his tax returns. Buchanan explains how wealthy Americans typically receive special tax treatment, and argues that it is not true that—as some claim—this treatment is necessary to induce the wealthy to invest. He also lauds the Buffett Rule as a key step toward reaching our ultimate goals as a nation, and ensuring the fair treatment of all Americans, regardless of income.

English Language Proficiency and Elective Office in the Southwest: An Arizona Ballot-Access Case Poses Important Questions

Justia columnist and U.C., Davis law professor Vikram David Amar comments on an interesting Arizona case involving the question whether candidates for office can be required to be proficient in English. As Amar explains, the case arose from a dispute in San Luis, Arizona, a small southwestern city where the vast majority of the inhabitants are Mexican-American and where the Spanish language is pervasive. There, the Mayor has challenged the eligibility of a candidate for City Council, Alejandrina Cabrera, and has sought to block her name from the ballot on the ground that she is not proficient in English. In so doing, the Mayor invoked longstanding Arizona law. After an expert found Cabrera not to be sufficiently proficient in English, her name was removed from the ballot. She now seeks relief from the Arizona Supreme Court. Amar considers precedents and analogies that are relevant to whether Cabrera should win her case.

Repealing the NDAA

Justia columnist and Hunter College Human Rights Program Director Joanne Mariner comments on the Due Process Guarantee Act of 2011—a bill that states that a congressional authorization for the use of military force does not allow the indefinite detention of citizens or lawful permanent residents arrested in the U.S., unless Congress explicitly provides for such detention. As Mariner explains, this clear-statement rule would offer citizens and resident non-citizens in the U.S. default protection against indefinite detention without charge, unless Congress plainly authorized such detention. Nevertheless, Mariner notes that she is of two minds about the Act. On one hand, Mariner believes that the Due Process Guarantee Act would effect a welcome change to the detention provisions of the controversial NDAA (National Defense Authorization Act) regarding U.S. citizens and lawful permanent residents of the U.S. On the other hand, though, Mariner points out that the Due Process Guarantee Act would do nothing to solve the problem of the indefinite detention, by the U.S., of non-resident aliens at Guantanamo—which Mariner contends is, by far, the U.S.’s most urgent and glaring detention problem.

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