Articles Posted in Constitutional Law

Justia columnist and U.C., Davis law professor Vikram David Amar addresses the constitutionality of a proposal from the Federalism Working Group of the American Legislative Exchange Council (ALEC)—an influential and generally conservative policy-oriented institution—to meet to consider, among other things, a proposal that would empower state legislatures to add candidates to general election ballots for the office of United States Senator. Amar takes up the question whether a proposal like this would be consistent with the federal Constitution.

Justia columnist and U.Washington law professor Anita Ramasastry comments on the world of big data, in which, as our data gets resold, recombined, and repurposed, we often have little idea what companies have data about us, where a given company may have initially obtained that data, and what that data will be used for in the future. Ramasastry argues that regulation in this area is sorely needed, and discusses the recent GAO report on the issue.

Justia columnist and Cornell law professor Michael Dorf explains the politics behind filibuster reform, in the wake of the elimination of the rule requiring a supermajority vote to end debate—and thus to move to a merits vote—on presidential nominations to the lower federal courts and executive offices.

Justia columnist and attorney Julie Hilden comments on a recent case in which a judge ordered an attorney to take down that part of her website regarding prior, similar victories. The judge reasoned that jurors might see the website, but Hilden notes that jurors in the case were admonished not to go online. Accordingly, Hilden contends that the judge erred in directing the lawyer to change the site.

Justia columnist and Cornell law professor Michael Dorf comments on the legal and other aspects of the incidents by which Miami Dolphins offensive lineman Richie Incognito bullied and racially harassed his teammate Jonathan Martin, to the point that Martin left the team. Dorf also notes that, interestingly, several U.S. Supreme Court cases are relevant to the controversy regarding Incognito’s behavior.

Justia columnist and U. Washington law professor Anita Ramasastry comments on a Utah bill that, if passed, would allow teens to erase their social-media footprints permanently. Ramasastry notes that teens can have their juvenile criminal records sealed, and can repudiate contracts they have signed. Thus, she notes, there are precedents under which minors are treated differently from adults under the law. Ramasastry also covers related events in California, and notes that we should focus, too, on how social-media postings can, and cannot, be able to be legally used in the future, especially when jobs and credit are concerned.

Justia guest columnist and Loyola Law School professor Paula Mitchell continues her series of columns on the death penalty, describing the developments in California in the past year and predicting what lies ahead.

Justia columnist and former counsel to the president John Dean comments on the Republicans’ filibusters of judges nominated for federal Circuit Court seats. He notes that this is a pure Nixonian technique, as well as a standard contemporary GOP procedure. Dean also comments on the first GOP filibuster, in 1968. Dean also comments on when Democrats will retaliate.

Justia columnist and Hofstra law professor Joanna Grossman chronicles Hawaii’s role in the same-sex marriage controversy—including its being the site of the beginning of the modern battle over same-sex marriage, although back then, Hawaii did not itself legalize same-sex marriage. But as Grossman notes, 20 years later, Hawaii now finally has legalized same-sex marriage, thus closing the circle. She also explains why Hawaii’s action should never have had the impact it did, given the proper interpretation of the Full Faith and Credit Clause.

Justia columnist and Cardozo law professor Marci Hamilton comments on the recently argued Supreme Court case that asks whether it is constitutional for a small town to open its town council meetings with prayer. Hamilton’s conclusion is that the case ultimately turns on a single factual question: Can there be, in 21st Century America, such a thing as a “nonsectarian” prayer? The short answer, according to Hamilton, is “No way.”

Justia columnist and Hofstra law professor Joanna Grossman comments on the U.S. Senate’s passage of the Employment Discrimination Act (ENDA) of 2013, which would prohibit employers from discriminating on the basis of sexual orientation or gender identity. Although the measure is not predicted to survive the House, Grossman contends that its passage in the Senate is noteworthy and encouraging.

Justia columnist and attorney Julie Hilden comments on a case from the U.S. District Court of the Northern District of Illinois, which involved a public school grammar teacher who—after intercepting a student's note that included rap music lyrics—continued the discussion, which then moved on to the use of the “N Word.” Hilden argues that the teacher should not have been suspended without pay as a result of the “N Word,” the use of which, by a teacher, in context, should not have resulted in the teacher's punishment.

Justia columnist and U.C. Davis law professor Vikram David Amar, and Justia guest columnist and U.C. Davis law professor Alan Brownstein comment on the Supreme Court oral argument in the Town of Greece Establishment Clause case. As Amar and Brownstein explain, the case involves the interesting issue of the constitutionality of prayer at town board meetings.

Justia columnist and attorney David Kemp discusses a recent decision by the U.S. Court of Appeals for the Third Circuit requiring law enforcement officers to have a valid warrant before installing a GPS tracking device on a suspect’s vehicle. Kemp describes the facts of the case and the reasoning the court used to reach its decision. He argues that the court’s interpretation of the Fourth Amendment is not only correct, but also indicative of what is necessary to ensure that constitutional law keep up with the technology available to law enforcement.

Justia columnist and Cardozo law professor Marci Hamilton argues that a narcissistic worldview has infected debates over religious liberty in America, where, she notes, individuals are now demanding the right to construct their workplaces, communities, and schools in the image of their personal religious viewpoints. This is religious narcissism, Hamilton argues, and she compares it to the narcissistic viewpoint that critics of the Millennials say that many members of their generation often hold.

Justia columnist and attorney Julie Hilden comments on “revenge porn,” which occurs when a person agrees to provide nude photos to his or her partner during a relationship, but after the breakup, the partner posts the nude photos online, at times connected to the partner’s name or other information. Hilden notes that California now has a relevant law on this topic, but some think that the law is not sufficiently strong.

Justia guest columnist and Loyola Law School professor Paula Mitchell continues her series of columns on the death penalty, describing the punishment’s effect on jurors, justices, governors, and executioners. She presents testimonies from various people involved in different parts of the process of capital sentencing and execution. She concludes that the public should consider the impact capital punishment has on those individuals who have to make the decisions of life and death.

In Part Two of this two-part series of columns, Justia columnist and Cornell law professor Sherry Colb continues her examination of Navarette v. California, the case in which the U.S. Supreme Court will decide whether anonymous tips are sufficient to create reasonable suspicion to support a stop by officers. The case involves the relationship between probable cause and reasonable suspicion, as well as the role of known informants and anonymous informants in helping police meet each of these standards, in turn, to shed light on what is normally required to justify an arrest or stop.

Justia columnist and attorney Julie Hilden comments on an updated California law that protects celebrities' children from the paparazzi, with penalties of jail time and hefty fines. Hilden suggests that the new law ignores serious First Amendment concerns, and that civil remedies, rather than criminal sanctions, might have been enough, particularly in light of those concerns.

Justia columnist and Hofstra law professor Joanna Grossman discusses the recent developments in New Jersey culminating in today’s first same-sex marriages performed in that state. She describes the relatively complex journey to marriage equality in that state and explains how the U.S. Supreme Court’s decision last term in United States v. Windsor led to the New Jersey Supreme Court refusing to delay enforcement of a lower court’s ruling striking down the ban on same-sex marriage.