Articles Posted in Constitutional Law

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.

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.

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.

In Part One of this two-part series of columns, Justia columnist Vikram David Amar and Justia guest columnist Alan Brownstein, both U.C., Davis law professors, discuss whether it violates the Fourteenth Amendment’s Equal Protection Clause for a lawyer to “strike” (that is, remove) individuals from a jury panel on account of their sexual orientation. Part Two in this two-part series of columns will appear on February 14.

Justia columnist and Cornell law professor Michael Dorf argues that what the late Justice Harry Blackmun famously called “the machinery of death” still remains deeply flawed. Dorf illustrates his point through two recent, controversial executions that illustrate how the practice of capital punishment continues to defy attempts to civilize it, and suggests that the responsibility is to be placed at the Court's door.

Justia columnist and U. Washington law professor Anita Ramasastry comments on a situation involving Mike Seay and his wife, who have been mourning the loss of their daughter, Ashley, for just under a year. Last week, the Seays received an unwelcome reminder of Ashley’s untimely passing in the mail: It came in the form of a flier from the office supply store OfficeMax, addressed to Ashley’s father, in these words: ”Mike Seay, Daughter Killed in Car Crash.” In addition to that egregious incident, Ramasastry also discusses the growing phenomenon of data aggregation, and the fact that the large-scale collection of data leads to harmful consequences for consumers when companies keep tabs on us in ways that are unrelated to our ordinary commercial transactions, as the Seays painfully learned.

Justia columnist and Cardozo law professor Marci Hamilton covers and comments on Paroline v. Unknown Amy, a case on which the Supreme Court just held oral argument yesterday. The question in the case before the Court is how much child pornography market participants should be individually required to pay for the harm to the victims of child pornography.

Justia guest columnist and Northwestern law professor Joseph Margulies explains why American criminal justice appears to be coming out of its prior, punitive turn in criminal justice. With even the Attorney General acknowledging that our criminal justice system is, in many ways, broken, Margulies suggests strong evidence that the punitive turn is waning, and may well be superseded with new and better approaches to criminal justice.

Cornell law professor and Justia columnist Michael Dorf comments on the Supreme Court’s Obamacare/RFRA cases, which he notes present a number of important legal issues, as well as a fundamental question for any liberal democracy: To what extent should people be exempted from laws that they regard as requiring them to participate in evil?

Justia columnist and attorney Julie Hilden comments on a recent California Court of Appeals decision that involved a rapper, and an infamous former cocaine dealer. The court held that a person’s name and public persona are First Amendment-protected if they incorporate significant creative elements, and thus count as a transformative use of the original name and/or persona. Hilden argues that the court was correct in its holding in the case.

Justia columnist and attorney David Kemp discusses the tragic situation of Jahi McMath, the 13-year-old girl who was pronounced brain dead after surgery, and whose family sought to keep her on a ventilator despite that diagnosis. Kemp focuses on the federal civil rights lawsuit recently filed by the family. He argues that it is unlikely to succeed on the merits and that the family would be better advised to seek alternative means of answers and justice for their loss.

Justia columnist and U.C. Davis law professor Vikram Amar comments on Silicon Valley billionaire investor Tim Draper's proposed plan to divide up California into six separate states, on the ground that California’s diverse population and economies currently render the state nearly ungovernable. In this column, Amar spots and preliminarily analyzes some of the major issues that may arise regarding Draper's plan. (If and when the proposed measure successfully moves through various stages of the political process, Amar will likely offer a more detailed analysis of many of the questions that the plan raises.)

Justia columnist and attorney David Kemp discusses a recent ruling by a federal judge in Ohio striking down that state’s laws banning recognition of same-sex marriages validly performed in other states. Kemp describes the facts and legal reasoning of that case and explains how the ruling affects residents of Ohio and its potential implications outside that state. He predicts that although the scope of the ruling is quite narrow—affecting only death certificates for Ohio residents with same-sex surviving spouses—it strongly suggests an imminent change in that state and elsewhere in the country.

Justia columnist and former counsel to the president John Dean comments on the ongoing importance of Edward Snowden, whose spectacular leaking of National Security Agency (NSA) secrets continues to have profound implications, in a set of specific ways that Dean describes. Accordingly, Dean argues that Snowden’s should be deemed the key legal story of 2013 and very likely that of 2014, too. Dean also compares what Snowden should do now, with what Daniel Ellsberg did after revealing the Pentagon Papers.

Justia columnist and attorney Julie Hilden comments on a Texas Appellate Court decision from October. The decision was based on a Texas man’s being charged under the State’s penal code for the third-degree felony of communicating in a sexually-explicit manner with a person whom he believed to be a minor, with intent to arouse or gratify his sexual desire. The Texas appellate court, however, deemed the statute to be overbroad and therefore struck it down for First Amendment reasons, noting that content-based regulations of speech, such as the one at issue here, are presumably invalid, and citing the law's potential to reach even great works of literature.

Justia columnist Vikram David Amar and Justia guest columnist Alan Brownstein, both U.C., Davis law professors, analyze a very intriguing issue raised by a case that will be heard by the U.S. Supreme Court next month, McCullen v. Coakley, in which the plaintiffs challenge a Massachusetts law limiting pedestrian traffic near abortion clinics, because they seek to speak with women who are about to have an abortion and to attempt to deter them from doing so. Amar and Brownstein focus on how such laws ought to be categorized under Supreme Court precedent.

Justia columnist and Cornell law professor Michael Dorf explains why government officials around the country feel compelled to permit Festivus poles as part of their official holiday celebrations. How did we get to this point? The short answer, Dorf explains, is that Festivus poles in state capitols are an unexpected side effect of the Supreme Court’s Establishment Clause jurisprudence.

Justia columnist and Cardozo law professor Marci Hamilton contends that we are in the midst of a war over whether the U.S. Catholic Bishops and those who agree with them, or individual women, will control women’s bodies and health. Hamilton comments on the influence of Pope Francis. She also argues that there are two major battlefields in this war right now: one in the workplace, and the other in Catholic hospitals. Hamilton ends, too, with an account of the terrible labor of a woman who suffered unnecessarily due to these conflicts.

Justia guest columnist and Touro Law Center professor Rodger Citron comments on one of the two personal jurisdiction issues that have come before the Supreme Court. Here, in Walden v. Fiore, the Court addresses what is called specific jurisdiction. Citron notes that Justice Ruth Bader Ginsburg may well take a strong role in the case, in light of her special civil procedure expertise.

Justia columnist and attorney Julie Hilden comments on a case from November 26, in which a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit held that a posting on Esquire Magazine’s Politics Blog, claiming falsely—but in jest and temporarily—that a conservative publisher had had the entire print run of 200,000 copies of a conservative book pulled from the shelves and pulped, and that it was offering full refunds to buyers, fit into the First Amendment's protection for satire. Hilden also remarks upon defamation risks on Twitter, Facebook, and blogs.