Articles Posted in Constitutional Law

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.

In Part One in a two-part series of columns, Justia columnist and Cornell law professor Sherry Colb considers the Supreme Court case of Navarette v. California, which asks whether police may lawfully stop a vehicle for reckless driving on the basis of an anonymous tip. Colb explains why that question is difficult, for two key reasons.

Justia columnist and attorney David Kemp discusses a case argued before the U.S. Supreme Court on the first day of its 2013-2014 Term. That case, Madigan v. Levin, raises the question whether the Age Discrimination in Employment Act (ADEA) precludes age discrimination claims brought directly under the Equal Protection Clause. Kemp notes that the particular facts of the case and the tone of arguments at the Supreme Court suggest that the Court may not decide the case on the merits. However, he argues that the case does present important questions on the power of Congress to abrogate individuals’ right to sue for constitutional violations, and its duty to do so only when the statutory remedies are both adequate and broadly accessible.

How has a minority in the House been able to hold the country and the global economy hostage? Justia columnist and Cornell law professor Michael Dorf’s answer is a matter of ideology, politics, and constitutional structure. As Dorf explains, Congress was not designed to work with political parties and has only been awkwardly retrofitted to do so.

Justia columnist and attorney David Kemp describes two recent lawsuits filed in Virginia challenging that state’s laws prohibiting same-sex marriages. Kemp describes the two cases, explains why Virginia is a favorable venue for such legal challenges, and notes the prevalence of other similar cases around the country. Kemp concludes that the existence of so many cases challenging discriminatory laws must be seen as a step in the right direction for same-sex marriage advocates.

Justia columnist and Cornell law professor Michael Dorf contends that mass shootings will never lead to gun-control laws. While he notes that the gun lobby plainly plays a role in that situation, Dorf also sees the difficulty of getting such laws passed as a failure of democracy: Although more people favor than oppose additional gun-control measures, the gun-control opponents appear to favor gun rights with greater intensity than the intensity with which the majority favors gun control.

Justia columnist and University of Washington law professor Anita Ramasastry comments on a Southern California school district’s decision to retain a private firm to search the Web and look for public posts, photos, tweets, and other communications made by its students. The district’s stated purpose for retaining the firm is to prevent students from harming others—and, in particular, to stop cyberbullying. But Ramasastry notes that the company that does the monitoring also finds out a lot of other information about students, as well.

Justia columnist and attorney Julie Hilden comments on a recent Ninth Circuit case regarding the tension between the right to free speech and fears that such speech might spur school violence. Another issue that the case raises is whether the well-known Tinker test for public school student speech needs to be modified or augmented in the Internet Age.

For this year’s Constitution Day, Justia columnist and Cardozo law professor Marci Hamilton comments on three key flaws in the Constitution of 1787. She comments, specifically, on the original Constitution as to the issues of slavery, women’s suffrage, and the civil rights of gay men and lesbians.

Justia columnist and Cornell law professor Sherry Colb comments on the United States Supreme Court’s June grant of certiorari in Cline v. Oklahoma Coalition for Reproductive Justice. The new case confronts the regulation of medically induced abortion and, Colb predicts, may prove to be important and surprising. Colb provides a particular focus here on Justice Kennedy’s possible views on abortion issues.

Justia columnist and Hofstra law professor Joanna Grossman, and Justia guest columnist and University of Pittsburgh law professor Deborah Brake comment on the 40th anniversary of Title IX, which transformed athletics for women and girls. Yet, they note, serious problems remain. Grossman and Brake note issues such as the cost of prizing masculinity in sports and the collateral damage of masculinity, including rape, gang-rape, and male-on-male hazing and assault. They also discuss the daunting task of changing sport culture, suggesting that community sports programs, especially in the younger years, should encourage more co-ed play, so that kids learn young to respect all athletes, both male and female, at a young age.

Justia columnist and attorney Julie Hilden comments on the U.S Court of Appeals for the Sixth Circuit’s decision invalidating Michigan’s criminal anti-begging statute. The ACLU successfully argued in court that begging is protected, as speech, by the First Amendment. Hilden agrees with the ruling, but also raises the more difficult question of aggressive begging’ and how it can be regulated to strike an appropriate free speech balance.

Justia columnist Vikram Amar and Justia guest columnist Alan Brownstein, both U.C. Davis law professors, analyze an important and interesting decision, Demers v. Austin, involving the First Amendment academic-freedom rights of public school and university faculty members that was handed down last week by the United States Court of Appeals for the Ninth Circuit. Amar and Brownstein argue that that a more concrete and categorical framework for resolving academic freedom disputes than the Ninth Circuit's needs to be fashioned.

Justia columnist and Cornell law professor Michael Dorf comments on President Obama’s options in Syria. Dorf notes that Secretary of State John Kerry’s position is that the President can act without Congress. But Dorf calls that position profoundly misguided, citing international law and the U.N. Charter on the use of force. Dorf also points out that Congressional approval cannot substitute for Security Council authorization. Moreover, he comments on prior presidents who faced situations in which there was a lack of Congressional authorization for the use of force.

Justia columnist and attorney David Kemp discusses a recent case filed in federal court in South Carolina challenging the state’s prohibition on same-sex marriages. Kemp describes the facts and arguments of that case, Bradacs v. Haley, and compares it to another recent case filed in Ohio challenging that state’s own laws precluding recognition of same-sex marriages. Kemp notes one particular parallel between arguments in the two cases and predicts, based on this parallel, that we will see similar challenges in several other states with comparably structured domestic relations laws.

Justia columnist and Cornell law professor Sherry Colb comments on the New Mexico Supreme Court's decision to uphold the application of the state’s anti-discrimination law to a wedding photography business that had refused to photograph a same-sex commitment ceremony. The decision, as Colb explains, means that, in New Mexico, most businesses may not refuse service to gay and lesbian couples on the basis of either the First Amendment freedom of expression or the First Amendment freedom of religion, even if the business at issue involves an expressive component, and even though the people who own or operate the business might harbor religious objections to same-sex relationships. Colb focuses, among other points, on a concurring opinion that she contends shows a laudable sensitivity to the feelings of people who experience themselves as aggrieved by anti-discrimination laws.