Analysis and Commentary Posted in 2013-07

A Federal Appeals Court Rejects a New York Times Reporter’s Plea to Shield His Source, Highlighting the Need for Action by the Other Branches

Cornell law professor Michael Dorf comments on a recent ruling by the United States Court of Appeals for the Fourth Circuit which rejected a claim by New York Times Reporter James Risen that he was entitled to shield his confidential source. Dorf contends that, having assured the public that the Justice Department respects the role of the press, the Administration should forcefully back federal legislation to give reporters a qualified shield for their sources, and even absent such legislation, the Justice Department should fast-track the implementation of Executive guidelines limiting the targeting of reporters.

British Prime Minister David Cameron’s Crusade to Block Internet Porn: Why His Plan Is Messier Than He Thinks

Justia columnist and U. Washington law professor Anita Ramasastry comments on the controversy in the U.K. regarding Prime Minister David Cameron’s plans for government Internet filtering. She notes that while almost everyone agrees that children’s Internet access should be regulated, the Cameron Plan for such regulation has numerous flaws—including an overbreadth that would unfairly censor worthwhile and even educational material from which teenagers would benefit. Ramasastry notes that British teens may well find a way to avoid the filters, or change them by secretly getting their parents’ IDs. She also contrasts the U.K. proposal on filtering, with the First Amendment-informed U.S. approach to the same issues when they have arisen here vis-à-vis libraries and schools.

The Boycott of the Upcoming Ender’s Game Film: Is It Justified?

Justia columnist and attorney Julie Hilden comments on the movement toward a boycott of the Lionsgate film Ender’s Game—which will premiere in November—due to the homophobic views of the author, Orson Scott Card, on whose book the film will be based. Hilden considers the responses to the controversy from Lionsgate, and from Card himself, and finds them wanting—especially Card’s. Hilden also notes that while Card’s bestselling books often and movingly invoke empathy for the other, Card, ironically, seems to have little empathy for GLBT people.

Noriega v. The Huffington Post: The End of the Story

Justia columnist and former counsel to the president John Dean comments on the story of a young Panamanian attorney, Juan Carlos Noriega, whose good name someone stole and used to create a phony blog account at The Huffington Post, which posted a bogus article in his name, the content of which he disagreed with. In addition, The Huffington Post then initially refused to take down the bogus article, or even acknowledge Noriega’s attorney’s letter. The full story also involves the federal Communications Decency Act (CDA) sec.230.

Republicans Choose the Dark Ages Over the Enlightenment: The Right’s Agenda Is Even More Reactionary Than It Had Seemed

Justia columnist, George Washington law professor, and economist Neil Buchanan argues that Republicans’ current positions are so extreme and cruel that they shock the conscience, and that one must go deep into history—indeed, earlier than the Enlightenment—to find an appropriate comparison. To support his thesis, Buchanan cites the recent vote to eliminate Food Stamps, on which many children depend; the move to support cuts to financing for student loans for poorer students, the decision to slash spending on community block grants to cities for housing and social programs; and the choice to take a broad anti-regulation stance even when regulation is plainly sorely needed. Modern Republicans, like pre-Enlightenment thinkers, Buchanan argues, are perfectly happy with the idea that the powerful cannot be stopped from imposing their will on workers, customers, the environment, and more.

Sexual Surrogacy: Better Than Prostitution?

Justia columnist and Cornell law professor Sherry Colb compares and contrasts the use of a prostitute with that of a sexual surrogate. One impetus for Colb’s column was the recent determination of France’s National Ethics Committee that sexual surrogacy is unethical because it uses the human body for commercial purposes. In light of that determination, Colb considers the arguments for and against considering sexual surrogacy to be ethically distinct from and superior to, prostitution. In the course of her analysis, Colb also considers two novel ways of thinking about sexual surrogacy: as (1) sexual harassment of the therapist, and as (2) sexual harassment of the patient.

Solomon’s Child: How Baby Veronica Came to Be Returned Home After a Long Legal Battle

Justia columnist and Hofstra law professor Joanna Grossman chronicles and comments on the legal fight over Baby Veronica, which went all the way to the U.S. Supreme Court. As Grossman explains, the case was complicated due to an apparent conflict between the federal Indian Child Welfare Act (ICWA), a 1978 law designed to reduce improper removals of Indian children from their parents and their placement with non-Indian families, and South Carolina’s rules regarding the rights of unwed fathers. Grossman explains the reasoning of majority opinion, as well as that of the opinion of Justice Sotomayor, who wrote the principal dissent.

A Case Against the Six-Person Jury for Serious Crimes

In light of debate surrounding the recent Zimmerman murder trial and its six-person jury, Justia columnist and attorney David Kemp discusses the U.S. Supreme Court’s jurisprudence on the size of juries in criminal trials. He describes the role of the jury as understood both by our nation’s founders and by the Supreme Court and explains how that understanding has changed over time. Kemp ultimately calls for a return to the traditional twelve-person criminal jury panel to advance both the appearance and reality of justice.

The Facts, the Verdict, and the Role of the Department of Justice’s Community Relations Service (CRS) in the Zimmerman Trial: A Model of Opacity

Justia columnist and Cardozo law professor Marci Hamilton comments on the role of the CRS—a little-known division of the Department of Justice—in the trial of George Zimmerman for the killing of Trayvon Martin. Hamilton starts with the facts that we do know and the many that we don't, and the perspective each side presented at trial. In addition, Hamilton questions the unclear role, here, of the Department of Justice’s Community Relations Service (CRS). Hamilton notes the role the CRS usually plays, and the evidence that has—and has not—been made public regarding the role it played here.

Why the Proponents of California’s Same-Sex Marriage Ban Are Unlikely to Succeed in Getting the California Supreme Court to Enforce Proposition 8: Part One in a Two-Part Series on What Should Happen to Same-Sex Marriage in California after Hollingsworth v. Perry

In Part One of a two-part series of columns, Justia columnist and U.C., Davis law professor Vikram David Amar explains why the Prop. 8 proponents are very unlikely to get the California Supreme Court to enforce Prop. 8 in light of the U.S. Supreme Court’s related ruling, although they are trying to do so with various gambits nonetheless. Amar describes the proponents’ strategies and explains why they seem doomed to fail. (Part Two of this series will appear here on Justia on August 2.)

The Promise of May, the Betrayal of June, and the Larger Lesson of Manning and Snowden

Justia guest columnist and Northwestern law professor Joseph Margulies offers an interesting perspective on the controversies raised by the classified information leaked by Bradley Manning and Edward Snowden. Margulies asks what it reveals about ourselves and our life and times that Manning and Snowden, two anonymous functionaries in the vast machinery of the American military complex, have—within three years of each other—committed both the largest and apparently most important unauthorized releases of classified material in American history?

Shopping Under Surveillance: Why We Should Think Twice About Letting Retailers Track Us in Stores

Justia columnist and U. Washington law professor Anita Ramasastry discusses the ways in which retailers at brick-and-mortar stores are profiling us. She notes that most of us realize that online stores can easily profile us, but many of us may not know that brick-and-mortar stores do the same thing in a different context. Ramasastry describes how these stores may track what we look at, where we browse and linger, what we might pick up and examine but then not ultimately buy. What department or section do we head for? How long do we spend in the sections of the store that we visit? Retailers now have access to this data due to our cellphones, but Ramasastry notes that we can thwart the surveillance by turning off the Wi-Fi feature of your phone, or putting it on airplane mode. In addition, Ramasastry urges, we ought to know when we are being monitored.

The Petition for Immediate Supreme Court Review of a Foreign Intelligence Surveillance Court Order Raises Thorny Procedural Issues

Justia columnist and Cornell law professor Michael Dorf builds on a recent column by fellow Justia columnist and former counsel to the president John Dean, discussing the substantive privacy issues raised by a recent petition to the Supreme Court seeking review of a top-secret order by a federal judge sitting in his capacity as a Foreign Intelligence Surveillance Court, who ordered Verizon to turn over call logs of all calls in which at least one party was in the United States; and forbade Verizon from informing its customers that their phone activity (though not the content of their conversations) would be shared with the government in this way. The order, notably, came to light only because Edward Snowden disclosed it. How will the legal arguments that the controversy has raised strike the Supreme Court's Justices? Dorf emphasizes that before we can know the answer, the Court must, of course, decide to accept the case for review, and as Dorf notes, there are serious procedural obstacles to its doing so.

Why the Snowden Leak(s) Should Result in a Supreme Court Review of the FISA Court’s Verizon Order

Justia columnist and former counsel to the president John Dean calls on the Supreme Court to act now, after Edward Snowden’s disclosure of the top secret order signed by a Foreign Surveillance Intelligence Act (FISA) court Judge directing Verizon to turn over to the FBI and NSA all call detail records or telephony metadata created by Verizon for communications that occurred wholly within the United States, including even local telephone calls. Dean points out that Snowden’s information has energized those who are committed to protecting our privacy, and that they now are using this new information to head to various courts in order to try to place some controls, via a number of varied lawsuits, on what has been, Dean notes, a time of NSA surveillance gone wild.

Why the En Banc Tenth Circuit’s Interpretation of the Religious Freedom Restoration Act in Hobby Lobby v. Sebelius Is Indefensible

Justia columnist and Cardozo law professor Marci Hamilton takes strong issue with the contention that a for-profit company is a religious “person” under the Religious Freedom Restoration Act (RFRA). The U.S. Courts of Appeals for the Third and Tenth Circuits have differed on the issue, and Hamilton argues that the Third Circuit is plainly right, and the Tenth Circuit plainly wrong. She also contends that the federal government should take an anti-RFRA position, just as it took an anti-DOMA position.

What Does the Sixth Amendment Right to Jury Trial Protect?: The Supreme Court Decides Alleyne v. United States

Justia columnist and Cornell law professor Sherry Colb comments on the Supreme Court’s recent decision in Alleyne v. United States, which concerns the Sixth Amendment right to a jury trial. The Court ruled there that a jury, not a judge, must make factual findings that raise the mandatory minimum sentence for an offense. Colb analyzes both the majority opinion and Chief Justice Roberts’s dissent, and explains which she finds more persuasive, and why. She also draws on social psychology research in her analysis.

Revenge: The Supreme Court Narrows Protection Against Workplace Retaliation in University of Texas Southwestern Medical Center v. Nassar

Justia columnist and Hofstra law professor Joanna Grossman, and Justia guest columnist and University of Pittsburgh law professor Deborah Brake together comment on the Supreme Court's recent decisions in two cases that involved employment discrimination. In one, the Court narrowed the definition of “supervisor” in harassment cases, which reduces the number of cases in which employers can be held vicariously liable for unlawful harassment. In the other case, the same 5-4 majority took a restrictive view of causation in workplace retaliation cases, which Grossman and Brake note will undermine protection for workers who complain about discrimination. As Justice Ginsburg observed in her strong dissents in both cases, and as Grossman and Brake also contend, the majority opinions are insensitive to the realities of working life, and are wrongly preoccupied with making it easy for employers to win discrimination cases at the summary judgment stage.

A College Student Prevails on a First Amendment Claim Based on His Peaceful Protest on the Supreme Court Plaza

Justia columnist and attorney Julie Hilden comments on a decision by U.S. District Judge Beryl A. Howell in favor of a man who protested on the Supreme Court Plaza, and was arrested as a result. Hilden agrees with Judge Howell that the statute under which the protester was charged was unconstitutional in that it violated the First Amendment, and explains why.

What the Supreme Court Should Have Said in the Proposition 8 Case, and How an Important Tweak Would Have Avoided Unnecessary Damage to the Initiative Device

Justia columnist and U.C., Davis law professor Vikram Amar comments on initiative-sponsor standing and its role in the Supreme Court’s Proposition 8 case. Amar deems the High Court’s invocation of such standing both attractive and hazardous, and explains why that is the case. He also notes that an appealing middle path was ignored here: A state should be free to authorize sponsors to defend initiatives (in a way that federal courts will accept), but the authorization has to be done carefully and in a fashion that the voters can see.

Seven Ways of Looking at Kiobel v. Royal Dutch Petroleum and the Supreme Court Under Chief Justice John Roberts

Justia guest columnist and Touro Law Center professor Rodger Citron analyzes the Supreme Court's decision in the Kiobel case, which concerned the scope of the Alien Tort Statute (“ATS”), a federal statute relied upon by lawyers asserting claims of human rights violations. In particular, Citron focuses on how Kiobel fully illustrates the judicial philosophy of Chief Justice Roberts. In addition, he offers seven different ways of looking at the decision.

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