Analysis and Commentary Posted in 2012-10

A Chicago Judge Rules in Favor of “Occupy Chicago” Protesters: Why He Made The Right First Amendment Call

Justia columnist and attorney Julie Hilden comments on an important recent First Amendment ruling by a Chicago judge, Thomas More Donnelly. Judge Donnelly ruled in favor of Occupy Chicago protesters who broke the 11:00 p.m.-to-6 a.m. curfew for Grant Park, and were consequently arrested. Significant in Judge Donnelly's decision were the Illinois Constitution’s especially broad right of assembly; the fact that, in 2008, Obama rally participants were allowed to break the curfew in Grant Park without suffering arrest or other consequences; and the poor treatment that the Occupy Chicago protesters had earlier endured from the Chicago police, before the Grant Park arrests. Hilden argues that Judge Donnelly was correct to rule for the protesters.

The First 2012 Presidential Debate: How the Incumbent Got Trapped

Justia columnist and former counsel to the president John Dean argues that Mitt Romney’s win in the first presidential debate will prove to be a Pyrrhic victory, which will also help the Democrats. Dean discusses presidential debates from their very beginning, with Kennedy versus Nixon in 1960, up to the present. In commenting on the first Obama/Romney debate, Dean describes the “incumbent’s trap,” which he defines as the ability of the challenger to force the incumbent to defend his record—for even a strong record can be criticized, and as Americans, we can be unrealistic about what we expect our presidents to accomplish while in office. Meanwhile, the challenger can promise voters the moon. Numerous incumbents, Dean notes, have fallen into this very trap, though in Clinton/Dole, Clinton managed to avoid it by dominating the debate. Dean then analyzes the Obama/Romney debate—arguing that it needed much more moderation and fewer open-ended topics. Ultimately, though, Dean contends that Obama’s loss there will have a silver lining: Post-debate, the Obama team can now correct the many instances where Romney stretched or outright ignored the truth, and Democratic voters will be reminded that an Obama win is far from a foregone conclusion.

A Federal Judge Upholds the Women’s Health Regulations of the Affordable Care Act Against a Free Exercise of Religion Challenge

Justia columnist and Cardozo law professor Marci Hamilton comments on a recent decision from a federal district judge regarding employers’ duties under the Affordable Care Act (ACA). The case arose when the Chairman of a for-profit company, who is Catholic, objected to the ACA’s requirements that his employee health plan must cover contraception and sterilization. Specifically, the Chairman claims, among other things, that his constitutional right to the free exercise of religion has been violated by the requirement. Hamilton, citing several U.S. Supreme Court cases, argues that the Chairman is wrong, and that if his position were to be accepted by the courts, then we would be on a dangerous slippery slope, for even minimal burdens on religious exercise could then lead to important consequences for those who are of other religions, or no religion at all. In addition to addressing these constitutional issues, Hamilton also discusses the issues raised in this area by the Religious Freedom Restoration Act (RFRA).

Is Cellphone Tracking Okay If There’s No Trespass? A Sixth Circuit Panel Says Yes: Part One in a Two-Part Series of Columns

In Part One in a two-part series of columns on an interesting set of Fourth Amendment issues, Justia columnist and Cornell law professor Sherry Colb discusses the question whether law enforcement may constitutionally, without a warrant or probable cause, use global positioning technology to track a suspect’s whereabouts through his cellular phone. Previously, Colb explains, the U.S. Supreme Court held in United States v. Jones that police need a warrant and probable cause to attach a global positioning device to a vehicle and thereby track a suspect’s whereabouts. But now, the U.S. Court of Appeals for the Sixth Circuit has held that police may, without a warrant or probable cause, use global positioning technology to track a suspect’s whereabouts through his cellular phone. Colb examines the legal concepts that the Supreme Court and Sixth Circuit decisions invoke, including those of trespass, and of privacy, and comments on the court’s analysis.

I See London, I See France: Upskirting and the Law

Justia columnist and Hofstra law professor Joanna Grossman, and Justia guest columnist and Stanford law professor Lawrence Friedman comment on the law regarding the despicable practice of “upskirting.” As Grossman and Friedman explain, upskirting is the secret taking of photos or videos with a camera that is angled so as to look up a woman’s skirt. They begin by discussing expectations of privacy, and go on to consider the particular invasion of privacy that is perpetrated through upskirting. They then note that while one might assume that upskirting (and its counterpart, downblousing) in a public place would be illegal and penalized in every jurisdiction, in fact that is not the case. Grossman and Friedman explain the puzzling legal status of upskirting in many jurisdictions, and comment on why the current law in this area often defies our intuitions about privacy—though some recent state laws are now authorizing punishments for upskirters.

An Educated Electorate: Essential to a Robust Democracy

Justia guest columnist and Loyola Law School professor Paula Mitchell discusses the high costs of the death penalty in California and suggests that life in prison without the possibility of parole is a more expeditious alternative. Mitchell describes the different components contributing to the expense of having the death penalty, including direct appeals and habeas corpus petitions, finding that the total costs far exceed a system where life without the possibility of parole is the maximum sentence. Mitchell then explains the initiative that will appear on the ballot in California in November 2012—Proposition 34—which will give California voters an opportunity to reform the state’s penal system by replacing the costly death penalty with life in prison without the possibility of parole.

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 the C.S. Wong Professor of Law at Cornell University. Colb teaches courses in con... 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 the Robert A. Fox Leadership Program Professor of Practice, and Fox Family Pavi... 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

Lesley Wexler
Lesley Wexler

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