Analysis and Commentary Posted in 2013-08

Advice for the Law School Class of 2016: Ten Suggestions for Incoming Law Students

Justia columnist and U.C., Davis law professor Vikram David Amar offers advice for those who are starting law school this Fall. Amar bases his advice on his own experience as a law student, as a practicing lawyer, and as someone who has taught at four law schools over the past two decades. He offers certain advice that is intuitive but very much worth keeping in mind, and certain advice that is less intuitive and also worth poring over before classes start.

The Next Debt Ceiling Debacle: The Republicans Are Setting an Impeachment Trap, and the Democrats Continue to Misunderstand What Is Happening

Justia columnist, George Washington law professor, and economist Neil Buchanan offers a primer on the debt ceiling; describes the trilemma that Washington faces; and explains how the Republicans are setting an impeachment trap, and the Democrats are playing along. Buchanan also comments on how far the Republicans will take this, and spells out some of the possibilities.

Why Leaker Chelsea Manning Should Receive Appropriate Medical Care in Prison

Justia columnist and attorney David Kemp discusses the request by government leaker Chelsea Manning, formerly Bradley Manning, that she receive hormone treatment while in military prison. Kemp discusses several decisions by federal courts, all of which have held that prisons are constitutionally required to provide transgender inmates with necessary medical care. He argues that as a matter of public policy and constitutional law, the military prison holding Manning should also provide her needed medical care.

New Accusations by a Nixon Apologist Based on Recently Discovered Information Regarding the Watergate Cover-Up Trial

Justia columnist and former counsel to the president John Dean comments on Watergate revisionism, and, in particular, Geoff Shepard’s recent piece in The Atlantic claiming that Nixon’s top advisers did not get justice when they were convicted for conspiracy, obstruction of justice, and perjury. Dean strongly differs with Shepard’s account, and explains precisely why. Among other points, Dean rebuts Shepard’s claim that former Watergate Special Prosecutor Leon Jaworski and Judge Sirica held secret ex parte meetings which were unlawful.

And They Shall Call Him . . .? Post-Divorce Disputes Over Children’s Surnames

Justia columnist and Hofstra law professor Joanna Grossman comments on a recent New Jersey Supreme Court case that involved the following question: Should the custodial parent have the presumptive right to change his or her child’s surname after a divorce? Grossman considers this and other questions and conflicts, that can arise regarding child-naming. She also puts these conflicts in the context of the U.S.’s tradition of patronymy, under which children take their father’s surname, and explains how that tradition emerged.

A Federal Court Holds New York Stop-and-Frisk Policy Unconstitutional in Floyd v. City of New York

Justia columnist and Cornell law professor Sherry Colb discusses a recent federal court decision finding New York City liable for its stop-and-frisk policy. The court found that the City had violated the Fourth Amendment’s guarantee against unreasonable searches and seizures, as well as the Fourteenth Amendment’s Equal Protection Clause’s guarantee against discrimination. Colb notes that the ruling is significant in that it validates the sense of some New Yorkers, especially those who belong to minority groups, that there has been unsupportable and arbitrary police behavior in this respect. In addition, Colb raises a narrow disagreement with a portion of the court's analysis that may help clarify some of the obstacles we face in detecting discriminatory intent, in this and other contexts where the issue arises. Relatedly, Colb also comments on the use of baselines in decisionmaking.

The Obama Administration Has Temporarily Cut Military Aid to Egypt, But Still Won’t Call the Coup a Coup: Why Modern Presidents Evade the Law

Justia columnist and Cornell law professor Michael Dorf comments on the situation in Egypt, arguing that President Obama’s dubious legal position with respect to Egyptian aid fits a recent pattern of American presidents acting as though they are not constrained by law when it comes to American foreign policy. To support his thesis, Dorf cites choices made by Reagan, Clinton, and George W. Bush.

The Book of Matt and What It Can Tell Us About the Zimmerman/Martin Case

Justia columnist and Cardozo law professor Marci Hamilton comments on a new book on the infamous Matthew Shepard murder, The Book of Matt, which she urges everyone to read, and which reveals that, as it turns out, there was much more to the Shepard case than was known at the time. Hamilton also considers the possibility that, as with the Shepard case, in which important facts weren't unearthed until now, years later, we may also be reassessing the Zimmerman/Martin case years later, when a future journalist may find new and important facts, as occurred in the Shepard case now.

Was a Tennessee Judge Right to Reject a Child’s Parents’ Choice of the Name “Messiah” for Their Baby Boy?

Justia columnist and attorney Julie Hilden comments on a Tennessee case in which a magistrate overrode a child's parents' wish to name their child "Messiah," based on the magistrate's own religious convictions. Hilden argues that the magistrate was out of line in her decision, which Hilden contends should be reversed, as does the Tennessee ACLU.

Another Front in the Same-Sex Equality Campaign: Jury Service, Peremptory Challenges, and the Smithkline Beecham Corp. v. Abbott Laboratories Case Pending in the Ninth Circuit

Justia columnist and U.C., Davis law professor Vikram David Amar comments on Smithkline Beecham Corp. v. Abbott Laboratories, which is being argued next month in the U.S. Court of Appeals for the Ninth Circuit. At issue is whether it is constitutionally permissible for a lawyer to eliminate would-be jurors from a case because of their sexual orientation. The issue arose in this antitrust lawsuit involving HIV medications, when an attorney exercised a peremptory strike to remove a possible juror from inclusion in the jury because, he said, the would-be juror was “or appears to be, could be, homosexual.” (Peremptory strikes allow each side of a case to remove a certain number of would-be jurors based on a hunch or intuition.)

The IRS “Scandal” Turned Out to Be a Non-Scandal, But It Might Not Matter: Why It Is Not Just the Right-Wing Echo Chamber That Will Perpetuate the Myth of Political Manipulation of the IRS

Justia columnist, George Washington law professor, and economist Neil Buchanan comments on a number of “scandals” that, more closely examined, did not prove to be genuine scandals at all. Buchanan focuses in particular on what we know now about the alleged IRS scandal, which he deems a non-scandal in the end that is only being perpetuated to gain partisan advantage—given the fact that the IRS, it turns out, used not just right-wing labels, but left-wing labels, too in its searches. Yet Buchanan notes that false claims tend to have a life of their own, and cites several reasons why that is the case.

What’s So Odd About A-Rod Playing Baseball Pending Appeal? Nothing. Courts Allow It All the Time

Justia columnist and Cornell law professor Michael Dorf points out that, in allowing Alex Rodriguez to continue to play baseball despite charges that he violated rules forbidding the use of performance-enhancing drugs, Major League Baseball is simply doing what U.S. trial courts typically do: Even after coming to a judgment, they suspend that judgment pending appeal. Moreover, Dorf argues that the case for permitting A-Rod to play pending appeal is actually stronger than the case for suspending other sorts of judgments. Dorf also explains why the decision whether to suspend a judgment pending appeal can be complicated and controversial, illustrating the point by citing the Proposition 8 litigation.

Protesters or Pirates?

Justia guest columnist and attorney Courtney Minick discusses a decision in which a panel of the Ninth Circuit Court of Appeals reversed a lower court’s denial of an injunction sought by Japanese whalers against the direct-action advocacy organization Sea Shepherd Society. Minick discusses the district court’s reasoning and decision denying the injunction, which focus on determining what constitutes a pirate. She then describes the Ninth Circuit’s decision reversing the lower court, calling into question the Ninth Circuit’s procedural decision to reassign the case to a different judge on remand. She concludes that while the definition of piracy may be evolving, different countries may yet come to different outcomes in deciding what constitutes a pirate for the purpose of enforcing domestic laws and international treaties.

The Imminent Demise of Section 2 of the Defense of Marriage Act

Justia columnist and attorney David Kemp discusses the recent grant of a temporary restraining order by a federal judge in Ohio, effectively suspending that state’s ban on recognition of out-of-state same-sex marriages. Kemp discusses the facts and reasoning behind the decision in that case, Obergefell v. Kasich. He then considers the background of Section 2 of the Defense of Marriage Act (DOMA). He concludes that although Obergefell does not expressly address DOMA, in practice it signals an imminent shift toward overturning the remaining section of that federal law.

Understanding This Town: Two Parties and a Funeral-Plus, Plenty of Valet Parking-in America’s Gilded Capital by Mark Leibovich

Justia columnist and former counsel to the president John Dean comments very favorably on the new book This Town (meaning Washington, DC and environs) by Mark Leibovich, the national correspondent for The New York Times Magazine. Along the way, Dean discusses some of his own interesting observations about the political culture of Washington, DC. At the end of the column, Dean also collects other reviews of the book, linking to them so that readers may sample an array of takes on This Town.

The California Catholic Bishops Fight Access to Justice for Child Sex Abuse Victims

Justia columnist and Cardozo law professor Marci Hamilton comments on the California Catholic Bishops’ decision to fight against, rather than for, justice for child sex-abuse victims. In particular, Hamilton notes that the Bishops’ primary target is the statute-of-limitations (SOL) window, which would open a one-year period during which those victims of clergy and other child sex abuse whose statutes of limitations had expired (which is the vast majority of victims) could still file lawsuits against their abusers, and those who covered up the abuse. Hamilton also faults, as indefensible, the Bishops’ attempt to triangulate the relationship between victims and parishioners, so that the victims are purportedly the enemies of the parishioners.

The Significance of the New “Pain Capable Abortion” Laws

Justia columnist and Cornell law professor Sherry Colb comments on recent laws enacted by several states banning abortion procedures at 20 weeks post-fertilization (or 22 weeks after a pregnant woman’s last menstrual period or “LMP”), and a similar federal measure passed by the House of Representatives, the “Pain-Capable Unborn Child Protection Act (PCUCPA), which would—in the unlikely event that it passed—yield a national prohibition against abortion at 20 weeks post-fertilization (with various exceptions). Some see such laws as a way to subtly advance a pro-life agenda, but Colb notes that an emphasis on the importance of pain, sentience, and suffering in morality surely should, especially, make us ask why we ignore the terrible suffering of the animals we use for food, when we should, instead, Colb contends—focusing on pain—choose to become vegan.

A Matter of Contract: The Wisconsin Supreme Court Rules Traditional Surrogacy Agreements Are Enforceable

Hofstra law professor and Justia columnist Joanna Grossman discusses a complex Wisconsin family law case, which led the Wisconsin Supreme Court to validate traditional surrogacy contracts—that is, ones where the surrogate provides the egg and the womb. This kind of surrogacy, as Grossman explains, is now rare. The arrangement, Grossman points out, was also unusual in another way: It was an altruistic—that is, uncompensated—surrogacy. Unfortunately, the arrangement led to a post-birth controversy, and then to litigation, as Grossman explains.

Has Behavioral Law and Economics Jumped the Shark? Understanding When a Promising Research Agenda Has Run Its Course—And Why It Matters in the Real World

Justia columnist, George Washington law professor, and economist Neil Buchanan comments on the school of thought known as Behavioral Law & Economics (BL&E) and questions its current and future relevance. Is the writing on the wall for this discipline, which treats people not like rational maximizers, as Economics does, but as fallible humans? Some think so, for, as Buchanan points out, many concepts in BL&E are so broad and open-ended that they can lead in almost any direction. Buchanan's piece contains, among other interesting examples, a notable analysis of the tax/penalty debate that was important to the Affordable Care Act, also known as Obamacare, and the related Supreme Court decision.

A Colorado Case Raises Key Questions About When a Demonstration Becomes A Private Nuisance, and How Much Gory Material Children Should Be Able to Be Exposed To

Justia columnist and attorney Julie Hilden comments on a recent Colorado case which raises two very interesting questions: When does a protest become a private nuisance? And, is it legal to expose young children to gory and disturbing images? The case at issue arose from protests near a church, in which protesters' signs included some that depicted graphic images of aborted fetuses. Hilden describes the factors that divide a protest from a mere public nuisance, and considers whether, in the Internet Age, young people may be more inured to graphic images that would have shocked their parents when they were their children's age.

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