Analysis and Commentary Posted in 2014-03

Destroying Our Universities by Turning Us Against Ourselves


Justia columnist, George Washington University law professor, and economist Neil Buchanan discusses the imminent threats to the university as an institution. Buchanan describes how anti-intellectualism, political opportunism, and short-sightedness are putting American greatness at risk. Finally, he highlights some of the myths and truths about tenure and its role in perpetuating the university’s role in society.

Is Tim Draper’s Six Californias Plan to Split the State Legal Under California Law?


Justia columnist and U.C. Davis law professor Vikram David Amar continues his discussion of the legal issues raised by Tim Draper’s “Six Californias” initiative. In this column, Amar focuses on one particular issue: whether California courts will block the initiative on the ground that it constitutes a “revision” of the California constitution. Amar explains the procedural distinctions between “revisions” and “amendments” to the state constitution and suggests that current case law does not clearly predict the outcome of the Six Californias initiative.

Supreme Court Oral Argument Shows How Religious Freedom Claims Have Become Ideologically Charged


Justia columnist and Cornell Law professor Michael Dorf discusses yesterday’s oral arguments before the U.S. Supreme Court in Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialty Stores Corp. v. Sebelius, which presented questions over the degree of religious freedom afforded to for-profit corporations. Dorf describes how these issues have evolved over the past two and a half decades and provides several possible reasons they have become so ideologically charged, as they are today.

Internal Investigations Can Resolve Scandals


Justia columnist and former counsel to the president John Dean contends that internal investigations can be one effective way in which an institution's scandal might dissipate and the relevant institution may move on. Dean supports his provocative thesis with a number of intriguing examples.

The Insatiable Demand for Extreme Religious Liberty Under the RFRAs, Part II


Justia columnist and Cardozo law professor Marci Hamilton continues her series of columns regarding Religious Freedom Restoration Acts (RFRAs). Here, in her most recent column, Hamilton addresses the argument that RFRAs should be extended to suits between private parties. This issue has surfaced primarily in the states, Hamilton notes, where purportedly rampant fear by bakers and florists of having to deal with same-sex couples has led to proposals to give businesses a RFRA defense that could be invoked against potential customers. The most controversial such bill was eventually vetoed by Arizona’s Governor Brewer; that bill would have permitted private businesses to raise the state RFRA as a defense in lawsuits by customers whom they have turned away.

Burrage v. United States and the Role of Harm Causation in Culpability


Justia columnist and Cornell law professor Sherry Colb continues her analysis, in the third of three columns on the topic, of the Supreme Court's decision in Burrage v. United States. There, the Court interpreted the eligibility of a heroin-distributing defendant for a sentencing enhancement under the penalty-enhancement provision of the Controlled Substances Act for selling drugs from the use of which death resulted. Colb explains how a defendant would qualify for the enhancement.

Hair Makes the Man: Federal Appellate Court Says Short-Hair Requirement for Male Athletes Is Sex Discrimination


Justia columnist and Hofstra law professor Joanna Grossman tells the story of a boy in Indiana who sued for, and won, the right from the Seventh Circuit Court of Appeals for male athletes to wear their hair long during the athletic season, or at least for the right for boys not to be forced to cut their hair while female athletes are allowed to wear theirs long. Grossman discusses the ruling and why, although it corrects some of the missteps made by other federal courts in grooming-code cases, it does not go far enough to eliminate the gross stereotyping implicit in many sex-specific appearance codes.

A Ninth Circuit Decision Sends A Message On Public School Student Uniforms


Justia columnist and attorney Julie Hilden comments on a recent Ninth Circuit case that involves Supreme Court doctrine regarding compelled speech. Here, the compelled speech issue arose when public school students were required to wear uniforms that stated “Tomorrow’s Leaders.” Hilden also describes two Supreme Court cases that also involve compelled speech.

Scandal at Notre Dame


Justia guest columnist, UNLV law professor, and visiting UC Irvine law professor Leslie Griffin comments on the recent controversy regarding Notre Dame, of which she is an alumna. Professor Griffin comments on Notre Dame’s arguments, which include one relating to the Catholic concept of scandal, and another that postulates that whenever Notre Dame signs the form objecting to contraception, the complaint triggers the provision of free objectionable coverage to Notre Dame’s employees in a manner contrary to its beliefs. Notre Dame also argues that by signing the objection, it facilitates contraception, and, by doing so, it will lead many to think that Notre Dame condones these services, and hence undermines its role, as a Catholic educational institution, to educate others on a matter of religious and moral significance. Griffin offers strong counterarguments, both logical and legal, to Notre Dame’s contentions.

The False Choice of Old Versus Young in American Budgetary Politics


Justia columnist, George Washington law professor, and economist Neil Buchanan debunks the common claim that we spend too much money on seniors and too little on children. Conservatives and “centrist” Democrats claim that, because of this supposed disparity, Social Security and Medicare are too generous and must be cut. In fact, Buchanan explains, our country puts a lot more of its resources into children than we generally understand, but most of it is hidden from view.

When Are First Amendment Exceptions Justified?


Justia columnist and Cornell law professor Michael Dorf contends that recent and ongoing controversies involving First Amendment freedoms pose fundamental questions about the circumstances under which exceptions should be granted to individuals and businesses with objections to complying with general laws. How should these questions be resolved? Dorf posits that the answer may depend upon the particular right in question.

A Private Skirt in a Public Place: The Surprising Law of Upskirting


Justia columnist and Hofstra law professor Joanna Grossman, and Justia guest columnist and Stanford law professor Lawrence Friedman comment on the law regarding “upskirting,” in which a man is surreptitiously videotaping up the skirt of a woman who is sitting, facing him, across the aisle of a bus or subway (or in another situation that lends itself to the practice). Grossman and Friedman note that Massachusetts’s legislature now has an anti-upskirting criminal law. Other states may follow soon too, for old laws are poorly fitted to address the very modern practice of upskirting, and unless legislatures move quickly, culprits may walk away scot-free.

Should Mt. Gox Be Bailed Out? What Should Regulators Do in Light of a Major Bitcoin Heist?


Justia columnist and U. Washington law professor Anita Ramasastry comments on recent headlines that caused a panic in the Bitcoin and cryptocurrency world: The largest Bitcoin exchange, Mt. Gox, was reporting a loss of nearly 750,000 Bitcoins currency units. (Prominent Bitcoin blogger Ryan Selkis made a post to his blog in which he described an unverified report of the loss.) This figure would be worth above $400 million at current prices. As of now, Mt. Gox, which is incorporated in Japan, has filed for insolvency protection there. Ramasastry comments on key events, and possible future reforms that could be put in place so that this situation does not recur.

Bridgegate: Thoughts on the Nature of Scandals


Justia columnist and former counsel to the president John Dean comments on the nature of scandals generally, and on Chris Christie’s Bridgegate scandal in particular—which arose from Christie’s and/or his aide’s decision to close a lane of the George Washington Bridge. Dean suggests that the Bridgegate scandal, rather than winding down, may well be just getting started.

The Insatiable Demand for Extreme Religious Liberty Under the RFRAs, Part I: Why Hobby Lobby Falls Outside RFRA’s Protections


Justia columnist and Cardozo law professor Marci Hamilton comments on federal RFRAs in the first column in a two-part series of columns that addresses the federal RFRA and the intersection of RFRAs and corporate law, as well as why corporations cannot take advantage of RFRAs. Part Two in the series, which will address state RFRAs, will appear here on Justia on March 20.

The U.S. Supreme Court’s View of Consent in Fernandez v. California


Justia columnist and Cornell law professor Sherry Colb comments on the United States Supreme Court decision in Fernandez v. California, upholding the search of a co-occupied apartment upon the consent of just one of the residents. Colb notes that the case offers a refinement on an earlier decision that had invalidated a search to which one occupant consented, while the second occupant simultaneously objected.

The Red State Scare: Federal Court in Texas Invalidates Ban on Marriages by Same-Sex Couples


Justia columnist and Hofstra law professor Joanna Grossman notes that first Utah, then Oklahoma, then Kentucky, and now Texas have seen at least some aspects of their anti-same-sex marriage rules invalidated by federal courts. Red states are unlikely to shift as quickly as blue states, Grossman notes, but change on this issue is inevitable, and only in one direction. She also notes the irony of Justice Scalia's words being used against him.

A Ninth Circuit Panel Balances First Amendment Rights Against School Safety


Justia columnist and attorney Julie Hilden discusses a First Amendment opinion by a three-judge Ninth Circuit panel: Dariano v. Morgan Hill Unified School District. The lawsuit emerged after school officials at Live Oak High School, in Northern California, learned of threats of race-related violence that had occurred during a school-sanctioned Cinco de Mayo celebration. School authorities then asked a group of students to remove clothing bearing images of the American flag. The students then brought a civil rights suit against the school district and two school officials. The Ninth Circuit panel held that because school officials anticipated violence or substantial disruption, the officials’ response of banning the shirts was tailored to the circumstances, and thus appropriate despite First Amendment concerns.

Meet our Columnists

Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois College of Law on the Urbana-Champaign campus. Immediately prior to taking the position at Illinois i... more

Neil H. Buchanan

Neil H. Buchanan is an economist and legal scholar and a Professor of Law at The George Washington University. He teaches tax law and tax policy, and he has taught contract law, law and economics, and... more

Sherry F. Colb

Sherry F. Colb is the C.S. Wong Professor of Law at Cornell University. Colb teaches courses in constitutional criminal procedure, evidence, and animal rights. She has published articles in a variet... 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 Judiciar... 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 law... more

Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School of Law.  She is an expert in sex discrimination law. Her most recent book,  more

Marci A. Hamilton

MARCI A. HAMILTON is the Robert A. Fox Leadership Program Professor of Practice, and Fox Family Pavilion Resident Senior Fellow in the Program for Research on Religion at the University of Pennsylvani... more

Joseph Margulies

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

Anita Ramasastry

Anita Ramasastry is the UW Law Foundation Professor of Law at the University of Washington School of Law in Seattle, where she also directs the graduate program on Sustainable International Developmen... 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, whose... more