Analysis and Commentary Posted in 2014-06

What’s Really Wrong With the Decisions in Burwell v. Hobby Lobby and Conestoga Wood v. Burwell?

Marci Hamilton, a law professor at Cardozo School of Law, offers a strong critique of the U.S. Supreme Court’s decision in Burwell v. Hobby Lobby, in which the Court held that owners of closely held corporations may deny its employees the health coverage of contraceptives on the basis of the owners’ own religious beliefs. Hamilton explains why the Court’s interpretation of the Religious Freedom Restoration Act (RFRA) is problematic and calls for that legislation to be repealed as soon as possible.

Follow-Up on California’s Legislative Effort to Repeal Proposition 187

U.C. Davis law professor Vikram David Amar continues his discussion of the California Legislature’s efforts to repeal, by ordinary legislation, provisions of a proposition that have been blocked indefinitely by a federal district court judge. Amar responds to arguments by the State Legislative Counsel that Proposition 187 can be repealed by simple legislation. He contends that the Legislative Counsel overreads the import of a judicial block on enforcement of the proposition and ignores the expressive effects of that law. Amar concludes by proposing that while he agrees that the repeal should go forward, it should follow prescribed procedures and include popular approval.

Grounding the No-Fly List: Part One of a Three-Part Series of Columns

In this first of a three-part series of columns, former counsel to the president John W. Dean discusses government watch lists in the post-9/11 era—specifically No-Fly Lists. He explains the questionable means by which these No-Fly Lists are created and maintained, and he calls attention to the absence of any way for people erroneously listed to seek any legal recourse.

Drones as the New Peeping Toms?

University of Washington law professor Anita Ramasastry discusses the growing personal use of unmanned aerial vehicles (colloquially known as drones) by individuals for spying and other nefarious reasons. She points out that most attention toward drones has focused on their use by the government, but their use by private citizens is increasingly becoming a concern. She discusses existing laws that might cover their use and proposes other ways the law can protect our privacy from individuals with high tech equipment like drones.

The Legal Price of Adultery Goes Down: North Carolina and West Virginia Abandon Heartbalm Actions

Hofstra University law professor Joanna Grossman and Stanford University law professor Lawrence Friedman discuss the erosion of “heartbalm” laws—legal claims against the extramarital lover of one’s spouse—in North Carolina and West Virginia. Grossman and Friedman describe the history of these causes of action and their decline over time. They explain the reasoning behind two different courts’ rulings—a lower court in North Carolina and the Supreme Court of Appeals of West Virginia—independently striking down their respective state’s remaining heartbalm actions.

Increasing Revenue by Lowering Taxes

Chapman University law professor Ronald Rotunda argues that the best way to increase revenue is to lower taxes. Rotunda explains that the current taxation structure incentivizes the wealthy to find loopholes and avoid paying taxes altogether, whereas those same corporations and individuals would be more likely to pay under lower tax rates. Rotunda also discusses the trend of corporations moving their headquarters and business centers from states with higher taxes, such as California, to states with lower taxes, and the negative impact of such moves on the origin state.

Why the California Legislature Can’t Simply Repeal the Judicially Invalidated Proposition 187

U.C. Davis law professor Vikram David Amar discusses efforts by California lawmakers to repeal provisions of the state code that a federal judge invalidated many years ago. Amar explains why those efforts, though understandable, reflect fundamental understandings of the scope of the legislature’s authority and the essence of judicial review.

What RFRA Has Wrought: Hobby Lobby, Onionhead, and the Perils of Religious Triumphalism

Cardozo law professor Marci Hamilton comments on a recently filed religious discrimination lawsuit the EEOC brought on behalf of several employees against two companies, United Health Programs of America, Inc. and Cost Containment Group, Inc. In that case, the two defendant companies are allegedly imposing their “Onionhead” practices on their employees and discriminating against those employees who object to those practices. Hamilton argues that the case illustrates what is at stake in the Hobby Lobby and Conestoga Wood cases currently before the U.S. Supreme Court, in which the Court is expected to resolve crucial questions about the scope of the Religious Freedom Restoration Act (RFRA) and its relationship to civil rights acts.

Was It Really a Tea Party Election Upset of House GOP Leader Eric Cantor?

Former counsel to the president John W. Dean comments on the recent surprise defeat of House GOP Leader Eric Cantor in his reelection bid for his Virginia congressional seat. Despite some preliminary claims that the election signifies a resurgence of Tea Party activism, Dean suggests taking a hard look at Cantor’s defeat to better and fully understand why he lost. Other factors such as Democrats’ cross-over voting, Dean argues, could have played a role in Cantor’s defeat.

George Will and the Price of Ignorance

Cardozo law professor Marci Hamilton responds critically to a column by George Will recently published in the Washington Post in which Will belittled a Swarthmore rape victim and implied that college women are responsible for their rapes. Hamilton provides three examples of how society’s handling rape is improving and argues that Will and others should educate themselves about rape before writing columns that ignore facts.

The Real Problems of Poverty and Inequality Exist Today, Not Decades or Generations From Now: Part Two of a Two-Part Series on Income Mobility and Inequality

In this second of a two-part series of columns on income mobility, George Washington law professor and economist Neil Buchanan explains why we should focus on reducing economic inequality today. Buchanan warns that our focus should not be on the increased rate at which economic inequality is growing, but on its very existence. He argues that even if inequality were gradually abating on its own, as some have postulated, inactively waiting for it to do so would continue to allow millions of people to suffer the pain of poverty until that distant and hypothetical time arrives.

The U.S. Supreme Court Narrows States’ Discretion to Execute the Intellectually Disabled

Cornell University law professor Sherry Colb comments on a recent decision by the U.S. Supreme Court invalidating Florida’s approach to identifying criminal convicts who are intellectually disabled and therefore constitutionally ineligible for the death penalty. Colb describes the facts and issues that brought the case before the Court and infers from the opinion that the Court may have a growing consciousness about those sentenced to death. Acknowledging also the strong arguments presented by the dissent, Colb concludes that essential difference between the majority and the dissent is a disagreement as to what is worse: to execute the wrong person to spare the wrong person from execution.

Amending the First Amendment

Chapman University law professor Ronald Rotunda critically discusses attempts to amend the First Amendment of the U.S. Constitution. Rotunda describes some of the alarming implications of the proposal in the Senate, which already has 41 cosponsors, and he warns that the passage of the proposal will lead to the taking away of important rights the First Amendment granted.

Poor, Rich, and Very Little Movement in Between: Part One of a Two-Part Series on Income Mobility and Inequality

George Washington University law professor and economist Neil Buchanan critiques the argument that income mobility adequately addresses the issue of economic inequality. Buchanan contends that supporters of the mobility argument rely on a theory of mobility that disregards the reality of the permanent effects that poverty has on people. In a companion column next week, Buchanan will discuss where the arguments that Professor Piketty offered in his book Capital in the Twenty-First Century fit into the arguments over inequality, mobility, and redistribution.

The Supreme Court Ducks a Treaty Power Question but Raises Broader Questions

Cornell University law professor Michael Dorf discusses the U.S. Supreme Court’s decision in Bond v. United States, handed down earlier this week. In that case, the Court considered whether the federal Chemical Weapons Convention Implementation Act applies to a Pennsylvania woman’s attempted use of mild toxins to cause a skin rash on a romantic rival. Dorf argues that the Court’s ruling sidesteps an important question about the scope of congressional power to implement treaties but that it also announces a presumption of statutory construction that could have far-reaching implications.

The Soda Ban or the Portion Cap Rule? Litigation Over the Size of Sugary Drink Containers as an Exercise in Framing

Guest columnist and Touro Law Center professor Rodger Citron comments on the litigation in New York over a rule prohibiting food-service establishments from serving sugary drinks in sizes larger than sixteen ounces. Citron describes the arguments put forth by each side and explains why the critical issue is whether the Board of Health's has the authority to promulgate such a rule.

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