Analysis and Commentary Posted in 2012-08

Does the Diversity Justification for Affirmative Action (Mis)Use Minority Students? Reassessing the Supreme Court’s Decision in Grutter

Justia columnist and U.C., Davis law professor Vikram David Amar considers whether one common justification for affirmative action in education—to allow white (and other) students to have a more diverse educational experience—is improperly using, instrumentalizing, and commodifying minority students. The challenge to this justification, Amar notes, has lately been the subject of academic commentary. Amar discusses the Supreme Court’s seminal Bakke case, which concerned affirmative action; the later Supreme Court Grutter and Gratz affirmative action decisions; and the upcoming Fisher case on the same topic. In addition, Amar explains three reasons why he isn't as concerned about the instrumentalization/commodification issue in affirmative action as some other law professors are.

The Unserious Mr. Ryan and the Idea-Free Mr. Gingrich: Understanding the Beltway’s Confusion of Mere Ideology With Actual Ideas

Justia columnist, George Washington law professor, and economist Neil Buchanan takes strong issue with Republican Vice-Presidential candidate Paul Ryan’s reputation for being a “serious thinker.” Like Newt Gingrich before him, Buchanan contends, Ryan is being falsely sold to the public as an “idea guy,” when, in truth, he says, Ryan is simply repeating conservative cant. Ryan’s undeserved reputation, Buchanan argues, derives in part from moderates and liberals in the D.C. commentariat who are playing along with the Ryan myth, and in part from the reality that only conservatives play what Buchanan calls “the ideology game.” Buchanan predicts, accordingly, that Ryan—like Gingrich before him—will eventually prove to disappoint even those who once showered him with praise.

Are We Our Co-Jurors’ Keepers? New Social-Media Jury Instructions Ask Jurors to Turn in Their Peers If They Break the Rules

Justia columnist and U. Washington law professor Anita Ramasastry discusses the problem of jurors’ using social media to research—or even communicate with others about—the trials on which they serve. Ramasastry offers statistics and examples regarding the nature and frequency of the problem of juror social-media use, and discusses the new model jury instructions addressing this issue. She also covers some egregious instances of jury misconduct in this area, and considers whether instituting a new rule of peer policing by jurors, of other jurors’ social-media use, will turn out to be a good idea in the end. In particular, Ramasastry expresses considerable concern about the propriety of judges’ mandating peer-to-peer juror policing regarding social-media use, and thus potentially altering natural jury dynamics.

How Todd Akin’s Statements About Rape and Pregnancy Undercut the Pro-Life Movement’s Efforts to Sell Itself as Pro-Woman

Congressman and Senate candidate Todd Akin’s comments about “legitimate rape,” in which he claimed that a woman who is raped is especially unlikely to get pregnant, are now notorious for being both offensive and factually wrong. In this column, Justia columnist and Cornell law professor Michael Dorf contends that—in addition to being highly inaccurate and offending many—Akin’s comments have also harmed the pro-life movement’s ability to present itself as pro-woman. Dorf notes that Akin’s “legitimate rape” phrase harkens back to old stereotypes claiming that women often made false rape claims, when we now know that is untrue. Ultimately, Dorf suggests, Akin’s comments may well have the greatest significance for the abortion debate, and Dorf explains why—examining the pro-life claim that women experience “abortion regret syndrome,” and considering whether the pro-life movement can, or should, be deemed pro-women, given certain facts about the movement.

Donald Langevoort: A Thoughtful Legal Thinker

Justia columnist and former counsel to the president John Dean comments on the the work of legal scholar Donald Langevoort, a professor at the Georgetown University Law Center, specializing in business organizations and securities regulation, who uses cognitive psychology in his work in order to explain why attorneys at times have ethical lapses. Dean comments on various interesting aspects of Langevoort’s work, such as his explanation as to how lawyers can fail to see a problem that should have been obvious to them, and his work regarding the organizational and psychological factors that may influence lawyers’ perception and judgment. Dean also discusses a list of certain cognitive biases to which lawyers may fall prey.

Republican Vice Presidential Pick Paul Ryan, Limited Government, and Ryan’s Big Picture When It Comes to Policy

Justia columnist and Cardozo law professor Marci Hamilton comments on Romney running mate Paul Ryan—focusing on Ryan’s influences, such as Ayn Rand and the Catholic Church, and on his views, some of which, she suggests, parallel those of Ronald Reagan. She notes, though, that despite these influences, Ryan is also more than capable of thinking for himself—as he’s been involved in disagreements with the Church, as well. Hamilton praises Ryan’s small-government, balanced-budget views, and compliments him for being smart and well-read, but she also suggests that he is foolish to make his own religious beliefs part of the Romney/Ryan campaign, in light of America’s striking religious diversity.

Can Celebrities Successfully Sue to Keep Their Stolen Wedding Photos Private? The U.S. Court of Appeals for the Ninth Circuit Say Yes, in a Case Pitting Latin American Celebrities Against a Gossip Magazine

Justia columnist and attorney Julie Hilden comments on a fair-use case that one judge on the Ninth Circuit panel compared to a telenovela. When a thief stole wedding and wedding-night photos from two Latin American celebrities that revealed that they were secretly married, and had been for several years, a gossip magazine published the photos. The two celebrities then registered their copyrights in the photos, and went to court to enforce them. The magazine, however, mounted a “fair use” defense, in order to try to avoid liability. Hilden describes and comments on the Ninth Circuit decision in the case, which sparked a dissent. Going through the four key fair-use factors one by one, the majority opinion suggests that the magazine has a steep uphill battle in proving fair use, as Hilden notes. Hilden also takes issue with the panel majority’s view that only “pictorial” photographs and those “factual” photographs that depict events should be protected, in this context. She argues that, to the contrary, even mechanical photo-booth photos ought to be protected in such situations.

Beware the Undissolved Civil Union: Massachusetts’ Highest Court Says That A Subsequent Marriage is Polygamy

Justia columnist and Hofstra law professor Joanna Grossman discusses an interesting legal issue: If a person enters into a civil union with one person, and then later enters into a marriage with another, is he or she guilty of bigamy? The Massachusetts Supreme Judicial Court said yes, ruling that for this purpose, a civil union is tantamount to a marriage. Grossman sets out the background regarding the advent of civil unions in a number of states, and then explores the bigamy issue. She also notes that because the civil union is still a relatively a novel legal status, unforeseen problems have sprung up, such as the difficulty of getting courts to dissolve such unions—which has led some couples to be stuck in unhappy civil unions without recourse, and thus to simply walk away, with no legal termination of the union. When a member of such a couple then sought to marry, Grossman notes, the bigamy issue posed another thorny legal conundrum for the courts. To make things even more complicated, too, Grossman observes, some states do not recognize other states’ civil unions, and others do.

Can the Government Require Doctors to Provide Misleading Information to Patients Seeking Abortions? A Federal Appeals Court Says No, but Means Yes

Justia columnist and Cornell law professor Michael Dorf comments on a recent decision from the U.S. Court of Appeals for the Eighth Circuit. As Dorf explains, the decision upheld a provision of a South Dakota law mandating that women seeking an abortion be informed that, with the abortion procedure, comes “an increased risk of suicidal ideation and suicide.” Although the medical literature shows only a correlation, and not a causal relationship, between abortion and suicide, and although that correlation likely stems entirely from some of the underlying factors that lead women to seek abortions in the first place, the Eighth Circuit still upheld the law at issue. Although the Eighth Circuit’s decision was quite plainly the wrong one, Dorf notes, he also predicts that it’s very unlikely that the U.S. Supreme Court will take the case. He then explains why the Court is likely to decline review and why, if it does grant review, it might uphold the law, even though it ought to be struck down.

Teaching (and Learning) About United States v. Alvarez, the Stolen Valor Act Case

Justia columnist Vikram Amar and Justia guest columnist Alan Brownstein, both U.C., Davis law professors, discuss the Supreme Court’s decision in United States v. Alvarez. As they explain, the case concerned the Stolen Valor Act, which imposes criminal penalties on those who falsely claimed to have been awarded the Congressional Medal of Honor or another medal granted by the United States. The Court had to decide whether the Act violated the First Amendment. Amar and Brownstein offer a subtle analysis of the various doctrinal moves that were made, in the case, by the Justices who joined the plurality opinion, the concurrence, and the dissent in the case, respectively. They focus especially on a search for a limiting principle that goes just far enough, but not too far, in the case, and target their analysis especially toward law professors who seek to teach the case, and students who seek to better understand it.

The Double Etch-a-Sketch Ticket: The Romney Campaign Tries to Erase Paul Ryan’s Dishonest and Troubling Track Record

Justia columnist, George Washington law professor, and economist Neil Buchanan comments on VP candidate Paul Ryan’s record. Buchanan argues that, while Ryan is being presented as a numbers maven, in fact Ryan is merely an ideologue with no experience in economics or in budgeting. Buchanan also argues that Romney would have been far wiser to opt for a running mate without so many positions that Romney now must repudiate. Buchanan charges that Ryan, rather than “running the numbers” simply makes them up—as, for example, Ezra Klein’s recent analysis, regarding Ryan’s long-term budget projections, shows. Buchanan also charges that Ryan uses mere assumptions—and unrealistic ones—when facts are needed, as with Ryan’s tax plan. Disagreeing even with Romney’s own economic advisers, Ryan, Buchanan notes, offers ideas and plans that any competent economist would reject. Although the media loves a debate, Buchanan urges them to admit that in this instance, only one side is on track, whereas Ryan is grievously off-base.

Two New York State Court Panels Suppress Evidence and Spark Great Controversy: Part Two

In Part Two of a two-part series of columns, Justia columnist and Cornell law professor Sherry Colb continues her analysis of two controversial rulings issued at the end of June and the beginning of July, respectively, by two panels of a New York State appeals court (the Appellate Division, First Department). Each ruling concluded that police had violated a suspect’s state constitutional rights against unreasonable searches and seizures, and that as a result, the trial judges should have “suppressed” the weapons found on the suspects—that is, held that the weapons could not be introduced against the suspects if and when they became defendants at a criminal trial. Colb explains the logic behind the rulings, which is related to New York’s “Stop and Frisk” laws. She also contrasts New York and federal law in this area, and contends that the differences between them may have contributed to the New York controversy.

Progressive Car Insurance’s “Snapshot” Experiment: Should Consumers Be Wary of Being Individually Tracked While Driving?

Justia columnist and U. Washington law professor Anita Ramasastry comments on instances of usage-based insurance (UBI), and warns of the risk of using this kind of technology until and unless it is carefully regulated. UBI programs use up-to-the-minute data on drivers, and safe drivers get discounts as a result, but UBI systems may also raise privacy concerns. Ramasastry focuses especially on Progressive Insurance’s “Snapshot” program, which showed that actual driving behavior is the best predictor of all of driver risk. Ramasastry suggests that UBI programs need to be closely regulated in order to ensure that the information they glean about drivers is not put to other uses, to which drivers did not specifically and carefully consent. While Progressive itself does not use GPS, but instead depends on other driving-related information, Ramasastry notes that other companies may well require GPS tracking in the future, or may offer it in exchange for lower rates.

Paul Ryan and Human Rights

Justia columnist and Hunter College Human Rights Program Director Joanne Mariner comments on presumed Republican vice-presidential candidate Paul Ryan’s positions on human rights issues. Reminding readers that even a VP may have great influence on human rights issue, as Dick Cheney certainly did with regard to issues relating to torture, Mariner notes that if Mitt Romney is elected president, Ryan, too, may have considerable sway in this area. Mariner notes first that Ryan sees rights as natural and God-given, and then goes on to note that Ryan is extremely pro-life, even if the pregnant woman’s life is in danger, and extremely anti-gay-rights. Mariner notes that when it comes to foreign policy, Ryan seems more open to certain compromises, and she is troubled, especially, by Ryan’s reportedly enlisting the advice of Elliot Abrams, whose views on human rights issues are, Mariner notes, very disturbing.

How Lawyers Can Minimize Professional Mistakes During a Scandal Like That at Penn State: Part Two in a Two-Part Series of Columns

Justia columnist and former counsel to the president John Dean concludes his two-part series of columns on how attorneys can avoid making errors when serving as counsel to a person or institution enmeshed in a scandal. With the Freeh Report strongly suggesting a cover-up of Jerry Sandusky’s child sexual abuse, Dean notes that the same question that arose in the Enron and Watergate scandals also arose regarding the Penn State scandal: Where were the lawyers? Dean offers some intriguing answers as to why lawyers may not function as they should in cover-up situations—noting that general counsels, though they are working for an institution, may tend to feel loyalty to the person, or persons, with whom they directly work, instead. Dean also introduces readers to the psychology of cover-ups, and especially the concept of the “loss frame,” drawing on the work of Richard Painter, Richard Kahneman, and Amos Tversky to explain why attorneys may get caught up in cover-ups. Dean also gives advice for those—whether they are attorneys or not—who find themselves in a loss-frame (roughly, a losing) situation, and notes what the ABA’s Model Rules counsel in such situations.

The Constitutional Answer to Balkanization: The Recent Controversies Regarding Hercules and Chick-fil-A, and a Wrongly Decided Federal District Court Case

Justia columnist and Cardozo law professor Marci Hamilton comments on two recent and somewhat similar controversies: the Chick-fil-A controversy, regarding the head of the company’s comments about gay rights; and the Hercules controversy, regarding that company’s refusal to pay for employees’ contraception due to the owners’ religious beliefs. Hamilton warns that such controversies raise the specter of Balkanization—that is, a society torn asunder by differing religious beliefs and the inability to live harmoniously because of these religious differences. Hamilton also covers a Colorado-based federal district court decision regarding the provisions of the Affordable Care Act (ACA) relating to employer-funded contraception. In addition, she provides examples of what might happen if this slippery slope is allowed to slip further—with individual and corporate business owners alike forcing their own religious beliefs, no matter how unusual or how restrictive, upon employees who reject those beliefs, and refusing to offer health insurance insofar as it supports practices, such as the use of contraception, in which the employers do not believe.

Two New York State Court Panels Suppress Evidence and Spark Great Controversy

In Part One of a two-part series of columns, Justia columnist and Cornell law professor Sherry Colb begins her analysis of two controversial rulings issued at the end of June and the beginning of July, respectively, by two panels of a New York State appeals court (the Appellate Division, First Department). Each ruling concluded that police had violated a suspect’s state constitutional rights against unreasonable searches and seizures, and that as a result, the trial judges should have “suppressed” the weapons found on the suspects—that is, held that the weapons could not be introduced against the suspects if and when they became defendants at a criminal trial. Colb explains the logic behind the rulings, which is related to New York's “Stop and Frisk” laws. She also contrasts New York and federal law in this area.

The Defense of Marriage Act (DOMA) Takes Another Bullet: How Can It Survive?

Justia columnist and Hofstra law professor Joanna Grossman comments on recent and past developments regarding the Defense of Marriage Act (DOMA), which sought to ignore valid same-sex marriages for federal purposes, such as the receipt of federal benefits. Grossman covers the beginning of DOMA; describes DOMA’s effect, including the legal havoc it wrought; and notes recent developments that she predicts will ultimately spell the death of DOMA. With four federal courts striking down DOMA’s key provision, Section Three, in just the last six months—in decisions that Grossman describes in detail—and the Department of Justice refusing to defend the law, Grossman suggests that the law cannot stand much longer.

The Michigan Supreme Court Holds That the First Amendment Protects Drivers From Being Punished for Their Purely Verbal Disagreements With Parking Ticket Officers

Justia columnist and attorney Julie Hilden comments on a recent Michigan Supreme Court First Amendment case, regarding a Michigan State University (MSU) ordinance. The ordinance makes it a misdemeanor to disrupt an MSU officer from performing his or her normal activities. In this case, a man whose car has been ticketed went up to the officer whom he believed gave him the ticket, and began shouting at him; a misdemeanor conviction ensued. The Michigan Supreme Court ultimately heard the case, addressing the key question whether a purely verbal interaction could constitutionally count as falling within the ordinance. Relying on a closely parallel Supreme Court precedent, the Michigan Supreme Court held that it could not.

What a Recently Released Study Ranking Law School Faculties by Scholarly Impact Reveals, and Why Both Would-Be Students and Current/Prospective Professors Should Care

Justia columnist and U.C., Davis law professor Vikram David Amar comments on the recent study ranking law schools by scholarly impact that was conducted by University of Chicago professor Brian Leiter, who also contends that the most well-known law-school-ranking system, that of U.S. News & World Report, is seriously flawed. Amar covers ranking methodology; describes what the most recent Leiter rankings show; and explains why the U.S. News rankings tend to differ somewhat from the Leiter rankings. Amar also addresses a key underlying question for any law school ranking: How much should a school’s scholarly productivity count, as opposed to other possible ranking factors?

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