Analysis and Commentary Posted in 2014-07

Message to Young People: Social Security Will Be There For You, Unless You Let Wall Street Take It Away From You

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George Washington University law professor and economist Neil Buchanan argues against the notion that Social Security will “go broke” before today’s workers retire. Buchanan discusses the origins of the idea—including disinformation campaigns by opponents of Social Security—and explains why the is unfounded, as long as people continue to support the program politically.

Comparing Two Federal Appellate Court Decisions on Same-Sex Marriage

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Attorney David Kemp discusses the recent decision by the U.S. Court of Appeals for the Fourth Circuit striking down Virginia’s ban on same-sex marriage. He compares and contrasts that opinion to an opinion handed down last month by the Tenth Circuit striking down Utah’s equivalent law. Based on the majority and dissenting opinions, Kemp anticipates what might be the key issues if the case reaches the U.S. Supreme Court—an event that seems increasingly likely.

Federal Appeals Courts Divide Over Obamacare Subsidies—and Over “Textualism”

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Cornell University law professor Michael Dorf discusses two federal appeals courts’ recent diverging decisions over Obamacare subsidies. Dorf contrasts the method of statutory interpretation used by the majority of a panel of the U.S. Court of Appeals for the D.C. Circuit, which struck down the subsidies, with that of the Court of Appeals for the Fourth Circuit, which upheld them.

Burwell v. Hobby Lobby Strikes Again, But Wisconsin Insurance Commissioner Strikes Out

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Cardozo Law professor Marci Hamilton comments on a recent statement by the Wisconsin Insurance Commissioner that purportedly applies the U.S. Supreme Court’s decision in Burwell v. Hobby Lobby Stores Inc. to that state’s law. Hamilton critiques the interpretation as misunderstanding the federal Religious Freedom Restoration Act (RFRA) and calls upon state courts not only to correctly understand the scope of the Hobby Lobby decision, but to reject the Hobby Lobby majority’s reasoning when interpreting their own state’s laws.

What Counts as an Abortion, and Does It Matter?

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Cornell University law professor Sherry Colb discusses the U.S. Supreme Court’s recent decision in Burwell v. Hobby Lobby Stores Inc., and the nature of the respondents’ claim that IUDs and morning-after pills are abortifacients. Colb analogizes to the distinction between the culpability of direct violence and failure to rescue in order to illustrate that the respondents’ claims are moral rather than factual in basis.

Hard Labor: New Pregnancy Discrimination Guidance From the EEOC

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Hofstra University law professor Joanna Grossman discusses the Equal Employment Opportunity Commission (EEOC)’s new Enforcement Guidance on pregnancy discrimination. Grossman provides an overview of the Pregnancy Discrimination Act of 1978, as well as a history of courts’ treatment of pregnancy discrimination claims. She describes how the new Guidance clarifies the Act and serves to help pregnant women begin work, continue working, and return to work throughout the reproductive process.

Banning the Export of American Oil

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Ronald Rotunda, a Chapman University law professor, discusses why Congress should eliminate the federal ban on the export of American oil. Rotunda provides a background on the history of the Export Clause of the U.S. Constitution and explains why the original rationale for banning the export of oil no longer supports the continued ban today.

A Potential Guide to the Meaning of Hobby Lobby: Why Justice Kennedy’s Concurring Opinion May Be Key, Part I

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Professor Vikram David Amar, of U.C. Davis School of Law, explains why Justice Kennedy’s concurring opinion in Burwell v. Hobby Lobby Stores Inc. deserves heightened attention and weight. In this first of a two-part series of columns, Amar provides background on the roles and types of concurring opinions in 5-4 decisions and provides some historical examples of some key concurrences.

Does Hobby Lobby All But Require Companies to Find Religion?

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George Washington University law professor and economist Neil Buchanan discusses the U.S. Supreme Court’s decision in Burwell v. Hobby Lobby Stores Inc., particularly whether it effectively compels all companies to adopt beliefs to increase profits and fulfill their fiduciary duties to their owners. Buchanan predicts that either we will see an increasing number of companies take this route to maximize profits, or we will want to investigate why more companies are not pursuing this attractive route to free market salvation.

How to Fix the Religious Freedom Restoration Act

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Cornell University law professor Michael Dorf proposes eight different options for fixing the Religious Freedom Restoration Act (RFRA). Dorf suggests that open discussion of what was wrong with the U.S. Supreme Court’s recent decision in Burwell v. Hobby Lobby Stores Inc. can inform the public and opinion leaders about how to fix RFRA when the opportunity arises.

Saint Ethel? A Review of “Ethel Sings: The Unsung Song of Ethel Rosenberg”

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Guest columnist Rodger Citron, associate dean for academic affairs and professor of law at Touro Law Center, offers an insightful review of “Ethel Sings: The Unsung Song of Ethel Rosenberg.” Citron explains the history of Julius and Ethel Rosenberg and offers his perspective on the strengths and shortcomings of the recent Off-Broadway show.

Hobby Lobby Yields More Rancor as Wheaton College Queues Up to Deny Contraceptive Coverage to Its Female Employees

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Cardozo Law professor Marci Hamilton discusses Wheaton College’s request to receive accommodation under the Religious Freedom Restoration Act (RFRA) to avoid providing some reproductive coverage for its female employees. Hamilton draws upon her own personal experience and points out that the recent controversies over RFRA in the U.S. Supreme Court have revealed that law’s true nature.

Federal Appellate Court Rules Utah’s Ban on Marriage by Same-Sex Couples Unconstitutional

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Hofstra University law professor Joanna Grossman discusses a recent decision by the U.S. Court of Appeals for the Tenth Circuit upholding a lower court’s invalidation of a Utah ban on same-sex marriage. Grossman points out that while state same-sex marriage bans have been invalidated in sixteen different rulings across the country, this decision marks the first time a federal appeals court has so ruled.

Why Laffer Lingers: Tax Cut Snake Oil Is Still for Sale

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George Washington law professor and economist Neil Buchanan explains why large numbers of people continue to believe erroneously that tax cuts result in greater tax revenues. Buchanan argues that the only real-life examples that seem to support the notion are cherry-picked and anecdotal evidence. He concludes that the claim that tax cuts are self-financing is only barely plausible as a matter of logic, and it has been disproven over and over again by both conservative and liberal economists alike.

Did the Supreme Court Err by Rejecting Political Deadlock as a Basis for Recess Appointments?

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Cornell University law professor Michael Dorf comments on the U.S. Supreme Court’s recent decision in NLRB v. Noel Canning, in which the Court unanimously invalidated President Obama’s 2012 appointment of three members of the National Labor Relations Board. Dorf discusses the differences between rationales and implications of the five-Justice majority opinion authored by Justice Breyer and those of the four-Justice concurrence authored by Justice Scalia. Dorf argues that the Court’s rejection of political deadlock as a basis for recess appointments could prove to be an important weapon anytime the majority in the Senate is actively hostile to the President.

The Supreme Court Decides Riley v. California and Updates the Fourth Amendment

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Cornell University law professor Sherry Colb discusses a recent case decided by the U.S. Supreme Court, Riley v. California, in which the Court nearly unanimously held that police may not examine the digital contents of an arrestee’s cell phone as part of a search incident to arrest. Colb describes the facts behind the two cases consolidated for the Court’s review, explains the precedents the Court relied upon in reaching its decision, and praises the Court for decisively embracing Fourth Amendment protection for digital privacy.

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. Immediately prior to taking the position at Illinois, Amar served as the Senior Assoc... 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 Professor of Law and Charles Evans Hughes Scholar at Cornell University. Colb teaches courses in constitutional criminal procedure, evidence, and animal rights. She has published a... 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 four books on constitutional la... 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 one of the country’s leading church-state scholars and the Fox Professor of Practice and Fox Family Pavilion Resident Senior Fellow in the Program for Research on Religion in the... more

David S. Kemp

David S. Kemp is an attorney and managing editor at Justia. He received his B.A. in Psychology from Rice University and his J.D. from the University of California, Berkeley, School of Law (Boalt Hall)... 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

Ronald D. Rotunda

Ronald D. Rotunda is the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, at Chapman University, Fowler School of Law. He joined the faculty in 2008. Before that, he was Univ... more