Analysis and Commentary Posted in 2014-09
Click Away: A Texas Law on “Improper Photography” Bites the Dust
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Hofstra University law professor Joanna Grossman and Stanford University law professor Lawrence Friedman comment on a recent decision by the Texas Court of Criminal Appeals striking down that state’s law against “improper photography.” Grossman and Friedman describe other similar laws in other states and discuss the challenges legislatures have faced in crafting such laws to include highly inappropriate violations of privacy without running afoul of the First Amendment.

A Special Counsel to Investigate the IRS Targeting of Tea Party Groups
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Chapman University law professor Ronald Rotunda discusses the need for the Attorney General to appoint Special Counsel to investigate IRS misconduct. Rotunda argues that by appointing Special Counsel, the Attorney General can restore America’s faith in the nonpartisanship of the Internal Revenue Service.

The Road Show Blaming Teachers for Society’s Ills Moves from California to New York
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George Washington University law professor and economist Neil Buchanan discusses a recent ruling by a California superior court judge striking down that state’s tenure system for public school teachers. Buchanan explains why the ruling lacks adequate basis and argues that tenure is actually an essential part of attracting and retaining talented teachers.

Yet Another (Judicial) Incursion Into A State’s Decisions About How to Structure Direct Democracy: The Ninth Circuit’s Ruling in Chula Vista Citizens for Jobs and Fair Competition v. Norris
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U.C. Davis School of Law professor Vikram David Amar describes a recent incursion by the U.S. Court of Appeals for the Ninth Circuit into California’s direct democracy system. Amar explains the U.S. Supreme Court precedents that led the Ninth Circuit to its conclusion, and he calls upon the Court to cut back or overrule its prior erroneous decisions to avoid future injuries to state direct democracy systems.

Scotland’s Vote to Stay in the UK Raises the Question of When Other Groups Should Have the Chance to Secede
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Cornell University law professor Michael Dorf discusses Scotland’s recent vote to stay in the UK and considers the broader question of when secession votes should be held, as a matter of international and domestic law.

Resurrecting the Dubious State Secrets Privilege
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John Dean, former counsel to the president, comments on a recent case between two private parties in which the U.S. Attorney General intervened and sought dismissal, citing the “state-secrets privilege.” Dean explains the questionable history of this privilege and explains why blind adherence to it can be dangerous.

Mr. President: The Islamic State Is a Religion
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Cardozo Law professor Marci Hamilton argues that the Islamic State is, in fact, a religion, despite how President Obama characterized it in his recent address to the nation. Hamilton calls upon the President to speak out against all actors who, in the name of their religion, commit crimes or terrorism.

Is It Arbitrary to Distinguish Incest From Homosexuality?
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Cornell University law professor Sherry Colb differentiates state bans on incestuous marriages from bans on same-sex marriages by looking at the governmental interests the bans purportedly serve and the harm done to their targets. Colb argues that the U.S. Supreme Court can, if it wishes, use this distinction to strike down bans on same-sex marriages without also having to rule on bans on incestuous marriages.

If She Don’t Win It’s a Shame: Female Executive Sues New York Mets for Pregnancy Discrimination
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Hofstra University law professor Joanna Grossman and University of Pittsburg law professor Deborah Brake comment on a recent lawsuit filed by Leigh Castergine against her former employer, the New York Mets, alleging pregnancy discrimination. Grossman and Brake argue that based on Castergine’s allegations, she is likely to prevail in her case; however, they describe the inconsistent results in many seemingly similar pregnancy discrimination cases across the country.

What Would a Better Ferguson Response Have Looked Like?
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Guest columnist and University of South Carolina School of Law professor Seth Stoughton discusses the police response in Ferguson, Missouri, and explains ways the situation could have been handled better. Stoughton argues that any confrontation between officers and citizens should be handled with the long-term relationship between the police and the community in mind.

Airplane Seatbacks, the Coase Theorem, and Simplistic Solutions to Difficult Questions
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George Washington University law professor and economist Neil Buchanan comments on the minor nationwide debate over reclining one’s seat on an airplane. Buchanan argues that one reporter’s claim that the debate is “an excellent case study for the Coase Theorem” manifests a fundamental (yet common) misunderstanding of that theorem.

Two New Rulings Unmask the Weakness of the Case Against Marriage Equality
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Cornell University law professor Michael Dorf comments on two recent rulings on state bans on same-sex marriage—one by the U.S. District Court for the District of Louisiana upholding that state’s ban and the other by the U.S. Court of Appeals for the Seventh Circuit striking down bans in Indiana and Wisconsin. Dorf explains how a comparison of these two rulings reveals weaknesses in the case against marriage equality.

Getting Away With Literary Fraud
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John Dean, former counsel to the president, comments on a recent Newsweek story by David Cay Johnston highlighting the noted and untruthful biographer C. David Heymann. Dean explains how the dysfunctional body of First Amendment law has allowed Heymann to get away with publishing many lies and false information about a handful of public figures.

The Slippery Slope of Religious Accommodation and How RFRA Is Teaching Legislators to Deny Accommodations in the First Place
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Cardozo law professor Marci Hamilton describes how granting accommodations under the Religious Freedom Restoration Act (RFRA) is a slippery slope. Hamilton draws upon a recent decision from the U.S. Court of Appeals for the Fifth Circuit for illustration.

Examining the Sixth Amendment Right to Self-Representation
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Cornell University law professor Sherry Colb considers whether a person should have a right to self-representation in criminal proceedings. Colb describes a recent decision by the U.S. Court of Appeals for the Seventh Circuit on the issue and discusses why such a right might be valuable.

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