Analysis and Commentary Posted in 2014-02
Consistency in the Treatment of Religious Liberty Claims: Hobby Lobby and Town of Greece Viewed Side by Side
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Justia columnist Vikram Amar and Justia guest columnist Alan Brownstein, both U.C. Davis law professors, comment on two key upcoming Supreme Court cases involving religion: (1) the highly-anticipated Sebelius v. Hobby Lobby Stores, Inc. cases that will be argued in the Supreme Court next month, and that involve challenges under the federal Religious Freedom Restoration Act (RFRA) to the Affordable Care Act’s requirement that employers must provide contraceptive services in their healthcare policies offered to employees; and (2) Town of Greece v. Galloway, which involves the permissibility of state-sponsored prayers before town board meetings.

The Dignity of Work Without End: Do Conservatives Really Want People Never to Retire?
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Justia columnist, George Washington law professor, and economist Neil Buchanan points out important advantages of the Affordable Care Act (ACA). For instance, the ACA's decoupling of work and health insurance frees workers who had stayed in their positions simply because they needed the health insurance, rather than changing jobs and/or enjoying some leisure or time with family and friends. Buchanan suggests that freedom-loving conservatives ought to applaud that new freedom which the ACA creates. In addition, on a more theoretical level, Buchanan explains how, in his view, the imbroglio over the CBO’s report exposed the arbitrariness of conservative economics.

Arizona and Other States Consider Expanding Religious Freedom to Discriminate
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Justia columnist and Cornell law professor Michael Dorf comments on last week's approval by the Arizona legislature of a bill last week that, if signed by the Governor would greatly expand the scope of religious exemptions from nondiscrimination law in that state. Like measures proposed elsewhere, the Arizona bill grows out of a fear by people opposed to same-sex marriage that they will be required to provide services to same-sex couples. Dorf comments on the relevant issues.

Bitcoin: If You Can’t Ban It, Should You Regulate It? The Merits of Legalization
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Justia columnist and U.Washington law professor Anita Ramasastry comments on the question whether Bitcoin—a so-called virtual peer-to-peer currency—should be regulated by the U.S. and/or States within it. (Along with the Treasury Department, California and New York are also contemplating possible legal or regulatory measures regarding Bitcoin.) Ramasastry looks at recent attempts to extend legal recognition to Bitcoin, and explains why she believes this is a good thing. She adds that while it may be good to clarify that legitimate businesses and consumers may use Bitcoin, it may be too early now to determine what, if any, further measures are needed to provide consumers with needed safety with respect to their Bitcoins.

Michael Bromwich’s Apple Monitoring Continues: Chapter Two
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Justia columnist and former counsel to the President John Dean continues his series of columns regarding the monitoring of Apple that is connected to an antitrust action. Dean takes sharp issue regarding both how the monitoring is being done, and the costs that are being imposed on Apple as a result.

Sex Assaults at Evangelical Colleges, the United Nations, and the Vatican
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Justia columnist and Cardozo law school professor Marci Hamilton comments on recent stories about the mishandling of reports of sex abuse and assaults at two fundamentalist colleges: Patrick Henry College and Bob Jones University. Hamilton also covers the Catholic Church’s ongoing issues with clergy sex abuse, and cautions these colleges not to follow the Church's lead. Hamilton notes that President Obama has been silent on the epidemic of sex abuse and assaults in religious entities in the United States. She argues that it is high time now, nearing the end of his last Term, for him to step up for all victims, and to stop pandering to religious entities.

A Giraffe’s Death and the Meaning of Our Outrage
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Justia columnist and Cornell law professor Sherry Colb comments on the reasons why the killing of Marius the giraffe, who had lived at the Copenhagen Zoo, has angered so many people around the world. Why did Marius supposedly have to die? According to the zoo, Marius’s genes were too common to be useful for the breeding program there, and thus, in the zookeepers' eyes, there was no alternative. Colb takes up the question of why people were outraged at Marius's killing, and what this outrage could mean for our conduct toward animals more generally.

Kentucky to Become a “Second Paradise” for Same-Sex Married Couples
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Justia columnist and Hofstra law professor Joanna Grossman comments on the status of same-sex marriage in Kentucky. There, a federal court’s ruling in Bourke v. Beshear concluded that whether or not a state has the power to refuse to authorize same-sex marriages on its own turf, it does not have the constitutional power to refuse to recognize those that are validly celebrated elsewhere. Grossman notes that Bourke joins a growing number of cases in which recognition issues are at the forefront, a trend that was ignited by the Supreme Court’s ruling last year in United States v. Windsor, which found fault in the federal government’s decision to single out same-sex marriages for non-recognition.

Gawker Media Versus Hulk Hogan: A Court Fight Over a Sex Tape
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Justia columnist and attorney Julie Hilden comments on the Florida state court litigation between wrestler Hulk Hogan and the Gawker website regarding Hogan's sex tape. Hilden comments on the First Amendment, copyright, and tort issues that the litigation involves. Interestingly, the litigation has intersected with considerable publicity for Hogan, suggesting that he may not be solely a victim here.

The Ninth Circuit, in SmithKline v. Abbott Labs, Bars Lawyers From Removing Gay/Lesbian Jurors: Part Two in a Two-Part Series
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In the second in a two-part series of columns, Justia columnist Vikram David Amar and Justia guest columnist Alan Brownstein, both U.C., Davis law professors, continue their commentary on a Ninth Circuit decision regarding the use of peremptory challenges in jury selection to eliminate gay or lesbian jurors. Amar and Brownstein also note the strong possibility of additional developments that may follow in this area of law, and a host of others, regarding gay and lesbian rights, especially if intermediate level scrutiny is held by the Supreme Court, in the future, to govern all types of sexual-orientation-based discrimination.

The Short, Unhappy Life of a Republican Attack Line, and Its Angry Aftermath
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Justia columnist, George Washington law professor, and economist Neil Buchanan thoroughly debunks the oft-cited Republican claim that Obamacare will “kill” millions of jobs. Moreover, Buchanan points to some of the important pluses of Obamacare, such as the end of “job lock,” which occurs when a worker is stuck in a job he or she wants to leave, but cannot do so due to the fear of losing his or her health insurance.

The Supreme Court Considers What Role States May Play in Intellectual Disability Determinations
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Justia columnist and Cornell Law professor Michael Dorf discusses an upcoming U.S. Supreme Court case addressing how to determine whether a criminal defendant is intellectually disabled and thus ineligible for the death penalty. Dorf explains the potentially far-reaching implications of the case, Hall v. Florida, and cautions that a ruling for Florida could undermine the uniformity of federal constitutional law.

The Spokeo Lawsuit and the Perils of the New People Finder Companies
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Justia columnist and U. Washington law professor Anita Ramasastry comments on a possible regulatory issue regarding Spokeo, which bills itself as a people-finder service. Spokeo warns subscribers that they cannot use its information to make decisions about a person’s employment, to make a credit determination, or to put the information to uses that would be covered by a federal law known as the Fair Credit Reporting Act (FCRA). But as a recent lawsuit illustrates, Spokeo’s data may be being used for such purposes, regardless, raising the possibility of the need for better safeguards.

The Implications of Suing the NFL’s Super Bowl Ticketing Scheme
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Justia columnist and former counsel to the president John Dean comments on the story of Josh Finkelman, 28 years old, the president of a warehouse business, and a serious football fan, who went looking for Super Bowl XLVIII tickets and ended up taking on the entire National Football League’s (NFL) Super Bowl ticketing system. Dean predicts that Finkelman’s lawsuit, if it goes forward, could be a doozy, and explains the New Jersey law that may make a lawsuit possible.

Debt by Any Other Name: Even If the President Were to Default on Our Obligations, He Would Still Violate the Debt Ceiling
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Justia columnist, George Washington law professor, and economist Neil Buchanan comments on the latest iteration of the ongoing debt ceiling melodrama. However, Buchanan points out that we need not endure all these iterations, given the basic point that the debt ceiling is flatly unconstitutional. Buchanan contends that President Obama should long ago have simply said that the debt ceiling cannot supersede the spending and taxing laws that Congress has passed. Here, Buchanan and fellow Justia columnist Michael Dorf, a Cornell law professor, offer a new analysis, contending that Congress has already guaranteed that the President will violate the debt ceiling, even if he tries not to do so.

A Murder Case Highlights an Odd Exception to the Sixth Amendment
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Justia columnist and Cornell law professor Sherry Colb comments on the logic of the “forfeiture by wrongdoing” exception to the Confrontation Clause and considers whether the distinction between its proper application and its application in the case on which Colb focuses holds up to critical analysis.

The Ninth Circuit Holds—Correctly—That a Blogger Has the Same Defamation Protection as a Journalist
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Justia columnist and attorney Julie Hilden comments on the January 17 decision by a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit that ruled, as a matter of first impression, that First Amendment defamation rules apply equally to both the institutional press and to individual speakers and writers, such as bloggers.

Meet our Columnists
Vikram David Amar

Vikram David Amar is a Distinguished Professor of Law at UC Davis School of Law and a Professor of Law and Former Dean at the University of Illinois College of Law on the Urbana-Champaign campus.... more

Neil H. Buchanan

Neil H. Buchanan, an economist and legal scholar, is a visiting professor at the University of Toronto Law school. He is the James J. Freeland Eminent Scholar Chair in Taxation Emeritus at the... more

John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973. Before becoming White House counsel at age thirty-one, he was the chief minority counsel to the... more

Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He has written hundreds of popular essays, dozens of scholarly articles, and six books on constitutional... more

Samuel Estreicher

Samuel Estreicher is Dwight D. Opperman Professor of Law and Director of the Center of Labor and Employment Law and Institute of Judicial Administration at New York University School of Law. He... more

Leslie C. Griffin

Dr. Leslie C. Griffin is the William S. Boyd Professor of Law at the University of Nevada, Las Vegas Boyd School of Law. Prof. Griffin, who teaches constitutional law and bioethics, is known for... more

Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School of Law and is currently serving as the Herman Phleger Visiting Professor at Stanford Law School. ... more

Marci A. Hamilton

Professor Marci A. Hamilton is a Professor of Practice in Political Science at the University of Pennsylvania. She is also the founder and CEO of CHILD USA, a 501(c)(3) nonprofit academic think... more

Joseph Margulies

Mr. Margulies is a Professor of Government at Cornell University. He was Counsel of Record in Rasul v. Bush (2004), involving detentions at the Guantánamo Bay Naval Station, and in Geren v. Omar... more

Austin Sarat

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College.Professor Sarat founded both Amherst College’s Department of Law,... more

Laurence H. Tribe

Laurence H. Tribe is the Carl M. Loeb University Professor Emeritus at Harvard University and Professor of Constitutional Law Emeritus at Harvard Law School, where he has taught since 1968. Born in... more

Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately prior to taking the position at Illinois, Wexler was a Professor of Law at Florida State University,... more