Analysis and Commentary Posted in 2012-03

Three Key Exchanges in the Obamacare Oral Argument

Justia columnist and Cornell law professor Michael Dorf comments on three important exchanges among the Supreme Court’s Justices that occurred during the Obamacare oral argument. As Dorf explains, the first exchange tested whether the government could constitutionally require Americans to buy things other than healthcare, such as burial insurance, mobile phones, or American cars. The second exchange involved a hypothetical regarding the government’s power to institute mandatory inoculation. And finally, the third exchange involved the Constitution's limits on “direct taxes.” Having discussed these important exchanges among the Justices, Dorf also describes what he believes to be the basis for the government’s best hope of winning the case.

An Educated Population Is Essential to a Nation’s Prosperity, yet Some Politicians Are Demonizing Our Educational System for Political Advantage

Justia columnist, George Washington law professor, and economist Neil Buchanan comments on the recent Republican attack on American education. Buchanan begins by emphasizing the copious evidence showing that education leads to national prosperity. In addition, he contends that it only makes sense for everyone who benefits from our educational system—meaning all Americans—to together pay for that system, including via student loans. Citing recent comments by candidates Mitt Romney and Rick Santorum, Buchanan critiques and opposes their, and other Republicans’, seeming disdain for education. Buchanan argues that if you focus on the facts, education has been proven, over and over, to be well worth its cost. Other countries clearly know this, Buchanan points out, citing notable examples, and if we forget this truth, he says, we will surely fall behind as a nation.

Why Interrogation in Jail May Not Count as “Custodial”: The Supreme Court Makes New Law in Howes v. Fields 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 analysis of an important recent Supreme Court decision, Howes v. Fields, regarding the right to be read one’s Miranda rights—the familiar set of rights that begins with “You have the right to remain silent.” In Part One, Colb focused on a set of Supreme Court precedents that are relevant to the Howes case. Here, in Part Two, Colb takes on the case that is arguably the most relevant of all to Howes: Maryland v. Shatzer. Shatzer, as Colb explains, concerns what implications a “break in custody” might have for Miranda purposes, and whether such a “break in custody” can occur while a person is incarcerated. Colb goes on to explain and critique the Howes Court’s approach to related Miranda issues. She takes sharp issue, in particular, with what she characterizes as a deeply unrealistic view of prisoners’ lives in prison, on the part of the Court.

Can Employers Legally Ask You for Your Facebook Password When You Apply for a Job? Why Congress and the States Should Prohibit This Practice

Justia columnist and U. Washington law professor Anita Ramasastry comments on the emerging law relating to whether potential employers may ask job applicants for their Facebook (and other social-media) passwords. Ramasastry describes efforts at both the federal and state level to prevent such practices, and to preserve the privacy of Facebook (and other social-media) users. In addition, she argues that these practices should indeed be illegal (to the extent that they are not already), in part because they may facilitate illegal discrimination. Ramasastry notes that two court decisions in this area of law sided with social-media users and against employers. She also points out that Facebook itself seems to be on the side of users who would like to keep their Facebook postings private from potential employers, but argues that Facebook users are still well advised to scrub their profiles of information and photos that might make a future employer balk.

The Hybrid Rules of Drone Warfare

Justia columnist and Hunter College Human Rights Program Director Joanne Mariner discusses the controversial subject of drone warfare, and the question of what rules should apply to it. She covers Attorney General Eric Holder’s speech on the issue, given earlier this month, which focused upon the use of lethal force against U.S. citizens. Mariner notes that this speech—building on earlier analyses by State Department Legal Adviser Harold Koh and Defense Department General Counsel Jeh Johnson—is the most thorough Obama Administration analysis of these issues to date. Mariner also contrasts the U.S. and Israeli frameworks for targeted killings—noting that the U.S. seems to be borrowing, lately, from the Israeli model. In particular, she compares the rules outlined in the Holder speech with the rules outlined in an Israeli Supreme Court opinion on similar topics. Finally, Mariner makes some predictions about the kind of approach we may see in the future in this area of law, which may combine elements of both military and civilian justice.

A Fair Question: Is Governor Scott Walker a Conservative Without Conscience?

In this two-part series of columns, Justia columnist and former counsel to the president John Dean comments on authoritarian personality traits, drawing from his own 2006 book, Conservatives Without Conscience, and from the work of Professor Robert Altemeyer on this subject. In particular, Dean raises the question of whether controversial Wisconsin Governor Scott Walker might be categorized as having an authoritarian personality. In this column, Part One in the series, Dean explains the personalities of authoritarian dominators and followers, and unravels the conundrum of how some people (called “Double High Authoritarians”) may test as both dominators and followers at the same time. Dean notes that such people are especially frightening, and explains why that is the case. In addition, Dean ascribes some part of the Nixon White House’s dysfunction to the large contingent of “Double Highs” in the Administration, including Nixon himself. Finally, Dean begins his analysis of Governor Walker, which he will complete in Part Two of this series of columns.

An Historic Turning Point for Reforming Statutes of Limitations for Child Sex Abuse: News From Massachusetts, and More

Justia columnist and Cardozo law professor Marci Hamilton comments on Massachusetts’s recent movement toward reforming the statutes of limitations (SOLs) for child sex abuse. In addition to covering the Massachusetts situation, Hamilton also argues that the tide is turning, nationwide, on the SOL issue. In particular, she cites progress in New York, Pennsylvania, Wisconsin, and Hawaii. Hamilton also takes strong issue with the Catholic Bishops’ contention that paying out child sex abuse claims will bankrupt them. Finally, Hamilton observes a new development in the movement against child sex abuse, and toward SOL reform in that area: Incest survivors and clergy child sex abuse survivors, Hamilton notes, are coming together to fight abuse and seek SOL reform.

Why Do We Simply Accept on Faith That Taxes Are Always Harmful? Economists Begin to Acknowledge the Weak Empirical Case for Tax Cuts, but We Should Say More About the Real Costs of Cutting Taxes

Justia columnist, George Washington law professor, and economist Neil Buchanan contends that a current assumption that lies beneath many Republican (and sometimes also Democratic) speeches and positions—the assumption that tax cuts are always good—lacks compelling empirical support. Buchanan focuses on the costs of cutting taxes, and takes economists, as a group, to task for not conveying more persuasively to the public that these costs do exist. While politicians tout tax-cut benefits, Buchanan argues, economists ought to underline tax-cut losses, too—such as the losses of essential government programs that, due to tax cuts, are closed or underfunded. He also points to recent commentary, based on empirical studies, from prominent economists Christina Romer, Uwe Reinhardt, and Paul Krugman, pointing out how surprisingly little taxes affect the economy.

Why Interrogation in Jail May Not Count as “Custodial”: The Supreme Court Makes New Law in Howes v. Fields 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 an important recent Supreme Court decision, Howes v. Fields, regarding the right to be read one’s Miranda rights—the familiar set of rights that begins with “You have the right to remain silent.” As Colb explains, Fields sets forth the law regarding Miranda in the context of the interrogation of persons who are already incarcerated. In this column, Colb explains the facts and outcomes of the prior Supreme Court Miranda precedents that proved relevant in Fields. In both parts of the series, she takes strong issue with the Court’s reasoning in the Fields decision—in part because she argues that the Court has a very unrealistic view of the realities of prison.

The Controversy Over Public Breastfeeding: Breast May Be Best, but Objectors Say Not in My Backyard (or Airplane)

Justia columnist and Hofstra law professor Joanna Grossman comments on the law regarding public breastfeeding. She covers both of the potentially applicable types of laws: indecent exposure laws, and public accommodations laws. In addition, Grossman discusses a key New York decision regarding toplessness more generally; a decision based on a Wal-Mart employee’s telling a customer that she needed to either breastfeed her son in the bathroom, or leave the store; a decision based on a mother’s refusal to put a blanket over her baby’s head when she was breastfeeding on a Delta airplane, as it was waiting at the gate; and a Vermont law that establishes the right, in that state, to publicly breastfeed. In addition, Grossman notes the changing social mores regarding breastfeeding—illustrated by protests called “nurse-ins” that are often sparked, with the help of social media, when a woman’s attempt to breastfeed in public is shut down.

Sex Discrimination Claims Under Title VII and the Equal Protection Clause: The Eleventh Circuit Bridges the Gap

Guest columnist and Justia editor David Kemp comments on a recent decision by the U.S. Court of Appeals for the Eleventh Circuit, which held that the Fourteenth Amendment of the federal Constitution protects transgender government employees from discrimination on the basis of their transgender identity, as part of its protection from discrimination based on gender. Kemp notes that the Fourteenth Amendment was implicated because the plaintiff’s employer—which fired her when she explained to her boss that she planned to transition from male to female—was a government agency. As Kemp explains, the resulting decision was a precedent both for the illegality of a firing based on gender non-conformity, and for the proposition that a firing like the plaintiff's violates the federal Constitution’s Equal Protection Clause. Kemp also discusses the Supreme Court precedent of Price Waterhouse, which established that an employer cannot legally force an employee to conform to stereotypes associated with his or her gender, and the question of what level of scrutiny courts will apply to discrimination claims arising out of transgender status.

Fisher v. Texas and the Reasons Why Liberals and Conservatives on the Supreme Court Don’t Trust Each Other on Affirmative Action: Part Two in a Two-Part Series of Columns

Justia columnist and U.C., Davis law professor Vikram David Amar continues his two-part series of columns on the Supreme Court and affirmative action. In this column, Amar cites ways in which both the liberal and the conservative Justices have seemed to fall short of being truly intellectually honest on affirmative action issues. Amar focuses especially on what methodology the Court should use in affirmative action cases, and whether some affirmative action cases should not have been decided by the Court at all. More specifically, Amar looks at the use of originalist methodology in affirmative action cases, and issues of standing in such cases. Finally, he comments on the Fisher case, which is now before the Court, and involves the University of Texas’s admissions system.

The GOP, Privacy and Reproductive Rights, and the Backlash

Justia columnist and Cardozo law professor Marci Hamilton comments on the recent attack on reproductive and privacy rights by GOP presidential candidates Rick Santorum and Mitt Romney. Hamilton notes that some state legislatures, such as those of Ohio and Utah, have also taken similar stances—with Arizona and Kansas very possibly following the trend. Hamilton questions the wisdom of these stances, in light of the fact that a sizable majority of the country is not opposed to contraception, and the fact that only with the support of independent and moderate voters could the GOP candidate possibly beat President Obama’s re-election bid. Hamilton also notes that there has been a substantial backlash against such measures, by female legislators who are registering their protest by introducing laws that would, for instance, make it harder for men to obtain Viagra, and regulate ejaculation except when it occurs in the context of conception. Vasectomies, too, have been the target of the female legislators’ efforts—which, of course, are not serious attempts at getting laws passed, but are very serious attempts to draw attention to what the legislators believe is a dangerous attack on women’s rights. Hamilton adds her own “modest proposals” to those of the female legislators, and warns that moving into this delicate and personal area may cost the GOP the presidential election and/or congressional seats.

The Controversy Over the R Rating for The Weinstein Company’s Movie “Bully”: Why There Should Be a Ratings Exception for Essential Material in Documentaries and Based-on-a-True-Story Films

Justia columnist and attorney Julie Hilden comments on the ongoing ratings fight regarding the film “Bully,” a documentary about kids and bullying that is scheduled to premiere March 30th. The producer and director of “Bully” are fighting for the film to get a PG-13, and not an R, rating, so that teenagers can see it. Hilden argues that films like “Bully”—documentaries where the true-life use of expletives or other explicit material is necessary to truly understand the film’s subject matter—should be excepted from the usual application of the MPAA ratings system. As other examples of film that should benefit from such an exception, Hilden cites the based-on-a-true story “Boys Don’t Cry” and the documentary “This Film Is Not Yet Rated.” Hilden also suggests that the MPAA should use a much broader pool of parents in determining what movies parents, in general, think are acceptable for their children to see.

Catching Warlords via Viral Videos: A Film About Joseph Kony Offers Us a New Vision of How to End Impunity

Justia columnist and U. Washington law professor Anita Ramasastry comments on the “Kony2012” 30-minute video, which recently received over 75 million views on YouTube and film-sharing site Vimeo—with even the White House taking notice. As Ramasastry explains, the video is a profile of the brutal warlord Joseph Kony, leader of the Lord’s Resistance Army, who is wanted by the International Criminal Court for his war crimes. Kony, a native Ugandan, mounted a war against Uganda’s government, using tactics including the recruitment of child soldiers and the commission of atrocities. Ramasastry covers Kony’s crimes; notes the praise for, and criticism of, the “Kony2012” video; and concludes that, despite some drawbacks and criticisms, the “Kony2012” video has proven to be an effective way to exert pressure for justice to be done.

What We Can Learn About Equality and Religion From a Recent Israeli Supreme Court Decision on Military Service

Justia columnist and Cornell law professor Michael Dorf comments on a recent Israeli Supreme Court decision that held that a law exempting ultra-Orthodox Jews from military service unconstitutionally denies equality of treatment to other Israelis, who either must serve in the military, or—if they are conscientious objectors—must perform alternative service. Dorf notes that the Israeli decision is not only interesting in its own right, but also sheds light on two questions that U.S. courts must frequently face: How should courts evaluate laws that confer special benefits on certain minorities within society? And, when should people and institutions be exempted from legal requirements based on religious objections? In particular, Dorf points out that the Israeli decision has interesting comparative-law implications for American debates about affirmative action, and about the granting of religious exemptions to otherwise-applicable laws.

Getting Watergate’s History Right: Max Holland’s Page-Turner Explaining Deep Throat’s Motives

Justia columnist and former counsel to the president John Dean discusses recent Watergate-related books and other writings, as we approach Watergate’s 40th anniversary. Dean makes the interesting observation that as more and more information is being released about Watergate, more writers are getting its history wrong, perhaps because of the difficulty of sifting through the massive record that now exists. Dean praises Mark Holland, however, as a sterling exception to that rule—noting that Holland’s book, which focuses on why Mark Felt became “Deep Throat,” shows an excellent command of the record, and indeed, casts light on a dark subject. In contrast, Dean notes that another respected journalist lacked the command of the record truly necessary to write accurately and insightfully about Watergate.

Children in Peril in New York: Another Infant Dies Due to a Risky Circumcision Practice, and More Needs to Be Done Regarding Child Sex Abuse

Justia columnist and Cardozo law professor Marci Hamilton comments on two significant threats to New York State’s children. Hamilton begins by noting the recent, tragic death of an infant from herpes. She notes that the infant likely contracted the disease from a mohel who performed “oral suction” on the infant after Orthodox Jewish ritual circumcision. (Oral suction is a controversial practice in the Jewish community, and has fallen out of favor with many. In ancient times, the practice was thought to contribute to hygiene, but as it was learned that it could spread disease, it was mostly abandoned. Those who still practice it typically employ a glass tube to avoid direct contact and disease transmission.) Noting that this is not the first such death to likely be associated with oral suction, Hamilton argues that this risky procedure should be banned, and notes that its religious nature provides no legal defense for those who follow the procedure. She also warns that not only the mohel, but also the parents, could be held responsible for the death, depending on what they knew about the procedure’s risks. In addition, Hamilton covers a second ongoing threat to the well-being of New York’s children: clergy child sex abuse. Hamilton contends that New York ought to follow the example of Philadelphia, when it comes to the reporting of clergy child abuse—for there, District Attorney Lynne Abraham eventually enabled justice to be done due to her grand jury investigation into the cover-up of abuse.

Donor Chains and the Legality of Compensating Kidney Donors: Critically Assessing Our Moral Intuitions

Justia columnist and Cornell law professor Sherry Colb comments on a recent practice that has made a larger number of compatible kidneys available to those who need them: the “donor chain.” As Colb explains, donor chains allow pairs of people—one person who is willing to donate a kidney, and another who is in need of a kidney (but not immunologically compatible with the intended donor)—to become links in a chain of such pairs, and thus to each receive compatible kidneys. Indeed, through such a chain, willing and compatible donors may be found for each would-be recipient on the chain. There is no question that these chains save lives, but Colb notes that many more lives would be saved if, in addition to allowing donor chains, we also allowed people to sell their kidneys to those who need them. Thus, she considers the rationales for banning kidney sales—while pointing out that people with one kidney typically live as long as those with two. In the end, Colb asks whether it really makes sense for federal law to allow donor chains, but not to allow kidney sales—using a hypothetical where the would-be kidney seller himself needs the money urgently to cover a loved one’s health care needs.

Is the Defense of Marriage Act (DOMA) Indefensible? A Federal Court Says Yes, in Golinski v. OPM

Justia columnist and Hofstra law professor Joanna Grossman comments on a recent decision by the U.S. District Court for the Northern District of California, holding that the Defense of Marriage Act (DOMA) is unconstitutional. (As readers may know, DOMA defines a marriage as a union between a man and a woman, for purposes of federal law and federal benefits.) The court also held that statutory classifications based on sexual orientation should trigger heightened scrutiny from reviewing courts, and that an anti-same-sex marriage law cannot survive such scrutiny. Grossman provides background on DOMA, and describes the current impact of, and court challenges to, DOMA’s anti-same-sex marriage section. She also describes federal legislative and executive challenges to DOMA, and recaps California’s complicated history regarding same-sex marriage. In addition, she focuses on the interesting question of what level of heightened scrutiny (intermediate, strict, or other) courts will apply when reviewing cases alleging sexual-orientation discrimination. Grossman predicts that whether by repeal, administrative undercut, or judicial invalidation, DOMA is on its way out.

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