Analysis and Commentary Posted in 2014-01

The Ninth Circuit, in SmithKline v. Abbott Labs, Bars Lawyers From Removing Gay/Lesbian Jurors

In Part One of this two-part series of columns, Justia columnist Vikram David Amar and Justia guest columnist Alan Brownstein, both U.C., Davis law professors, discuss whether it violates the Fourteenth Amendment’s Equal Protection Clause for a lawyer to “strike” (that is, remove) individuals from a jury panel on account of their sexual orientation. Part Two in this two-part series of columns will appear on February 14.

The Federal Government Turns Its Focus to Sexual Assault on Campus

Justia columnist and Cardozo law professor Marci Hamilton comments on the topic of college campus sexual assault, which is disturbingly frequent—so much so that the Obama Administration is now focusing on it. Hamilton considers ways to protect college women, especially women in college sports; notes how college men can help in rape prevention; and argues that worries about false accusations by women are overblown.

The Supreme Court’s Responsibility for Recent Death Penalty Mishaps

Justia columnist and Cornell law professor Michael Dorf argues that what the late Justice Harry Blackmun famously called “the machinery of death” still remains deeply flawed. Dorf illustrates his point through two recent, controversial executions that illustrate how the practice of capital punishment continues to defy attempts to civilize it, and suggests that the responsibility is to be placed at the Court's door.

OfficeMax’s Deceased Daughter Mail Blunder and the Limits of Privacy Law

Justia columnist and U. Washington law professor Anita Ramasastry comments on a situation involving Mike Seay and his wife, who have been mourning the loss of their daughter, Ashley, for just under a year. Last week, the Seays received an unwelcome reminder of Ashley’s untimely passing in the mail: It came in the form of a flier from the office supply store OfficeMax, addressed to Ashley’s father, in these words: ”Mike Seay, Daughter Killed in Car Crash.” In addition to that egregious incident, Ramasastry also discusses the growing phenomenon of data aggregation, and the fact that the large-scale collection of data leads to harmful consequences for consumers when companies keep tabs on us in ways that are unrelated to our ordinary commercial transactions, as the Seays painfully learned.

In-flight Cell Phoning Is an Awful Idea

Justia columnist and former counsel to the president John Dean, a very frequent flyer himself, argues strongly against the Federal Communications Commission (FCC)’s apparent plan to authorize cellphone calls to be permitted during domestic airline flights. The move was backed by the Telecommunication Industry Association, which would benefit from the change, but it triggered negative public feedback. Moreover, Dean notes, the Department of Transportation is likely to say no to the FCC’s plan. Ultimately, Dean notes, a split decision is likely, allowing texting, but not talking, on a plane.

The Supreme Court Hears Oral Argument in Paroline v. Unknown Amy, a Case Regarding Restitution for Child Pornography Victims

Justia columnist and Cardozo law professor Marci Hamilton covers and comments on Paroline v. Unknown Amy, a case on which the Supreme Court just held oral argument yesterday. The question in the case before the Court is how much child pornography market participants should be individually required to pay for the harm to the victims of child pornography.

Excluding Pregnant Women from the Right to Terminate Life Support

Justia columnist and Cornell law professor Sherry Colb comments on the situation of a pregnant 33-year-old woman in Texas whose family has been unable to have her removed from life support, notwithstanding her wishes and those of her family. The obstacle is a Texas law that prohibits the withdrawal or withholding of life-sustaining treatment from a pregnant patient. Colb contends that while political groups have weighed in—in predictable ways, corresponding to their views regarding abortion—in fact we should analyze the dilemma as in some respects, legally and morally distinct from the situation that confronts us in the abortion context, as she explains.

Coming Out of the Turn: Charting a New Course in Criminal Justice

Justia guest columnist and Northwestern law professor Joseph Margulies explains why American criminal justice appears to be coming out of its prior, punitive turn in criminal justice. With even the Attorney General acknowledging that our criminal justice system is, in many ways, broken, Margulies suggests strong evidence that the punitive turn is waning, and may well be superseded with new and better approaches to criminal justice.

Secrets and Lies: A New Ohio Law Opens the Adoption Closet

As Justia columnist and Hofstra law professor Joanna Grossman explains, under a newly enacted law, adult adoptees in Ohio can now seek access to their original birth certificates, with the State’s joining a small number of other States that have made an about-face in their thinking about the role of secrecy in adoption, and have joined the gradual shift towards greater openness. Grossman also describes the three key eras in American adoption law.

Citation as DNA

Justia guest columnist, Cornell law professor emeritus, and former dean of Cornell Law School Peter W. Martin explores how citation format can be used to expose the true parentage of a case law collection, such as that of Westlaw, LexisNexis, Bloomberg Law, and other case law database services. Martin describes his methodology and calls attention to the existence of differences among the major database services. He questions whether these differences even matter to a majority of practitioners, judges, and librarians but cautions that for the sake of authenticity and reliability, they perhaps should matter.

The Great Inequality Debate, and the Reemergence of Distribution as a Respectable Subject of Discussion

Justia columnist, George Washington law professor, and economist Neil Buchanan comments on the subject of income inequality in America, now a key topic once again. Buchanan criticizes President Obama's belated embrace of equality, and the actions of those whom Buchanan describes as the self-styled pragmatists and centrists who dragged Democrats to the right.

Obamacare and Participation in Evil

Cornell law professor and Justia columnist Michael Dorf comments on the Supreme Court’s Obamacare/RFRA cases, which he notes present a number of important legal issues, as well as a fundamental question for any liberal democracy: To what extent should people be exempted from laws that they regard as requiring them to participate in evil?

A Battle Between A Rapper And A Notorious Former Cocaine Dealer Over Intellectual Property Rights Ends Up in a California Court

Justia columnist and attorney Julie Hilden comments on a recent California Court of Appeals decision that involved a rapper, and an infamous former cocaine dealer. The court held that a person’s name and public persona are First Amendment-protected if they incorporate significant creative elements, and thus count as a transformative use of the original name and/or persona. Hilden argues that the court was correct in its holding in the case.

“Bridgegate” Or “Bridgetgate”? And Other Unanswered Questions

Justia columnist and former counsel to the president John Dean comments on the serious and building scandal that New Jersey Governor and potential Republican presidential candidate Chris Christie has on his hands, regarding allegations that he and/or his staff knowingly used their power for political reasons—specifically to allegedly close two toll booth lanes onto the George Washington Bridge as an act of political retribution.

2013: The Year in Review for Child Sex Abuse Victims’ Access to Justice

Justia columnist and Cardozo law professor Marci Hamilton describes and comments on developments regarding justice for child-sex-abuse victims. Hamilton reports that, in 2013, the pace of the movement to procure justice for victims quickened remarkably. But there is also a negative development, Hamilton notes: religious groups have gone back to the drawing board to find new ways to protect themselves from the law in this area.

The Fortieth Anniversary of the Endangered Species Act and Plato’s Allegory of the Cave

Reflecting on the 40th anniversary of the Endangered Species Act last month, Justia columnist and Cornell law professor Sherry Colb contends that whether one considers this legislation from the political right or left, its anniversary should be a cause for reflection on its deep messages about the relationship between humans and other animals, and about relationships between and among humans as well.

Equality Still Elusive for Women in the Federal Workforce

Justia columnist and Hofstra law professor Joanna Grossman comments on the continuing gender inequality in the federal workforce. That inequality, in 2010, led the Equal Employment Opportunity Commission (EEOC) to convene a working group to “identify the obstacles that remain in the federal workplace that hinder equal employment opportunities for women.” Grossman comments on what they found, and how far—or near we are from the sexist world that the movie 9 to 5 depicted.

On Brain Death and Civil Rights

Justia columnist and attorney David Kemp discusses the tragic situation of Jahi McMath, the 13-year-old girl who was pronounced brain dead after surgery, and whose family sought to keep her on a ventilator despite that diagnosis. Kemp focuses on the federal civil rights lawsuit recently filed by the family. He argues that it is unlikely to succeed on the merits and that the family would be better advised to seek alternative means of answers and justice for their loss.

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