Verdict

In light of debate surrounding the recent Zimmerman murder trial and its six-person jury, Justia columnist and attorney David Kemp discusses the U.S. Supreme Court’s jurisprudence on the size of juries in criminal trials. He describes the role of the jury as understood both by our nation’s founders and by the Supreme Court and explains how that understanding has changed over time. Kemp ultimately calls for a return to the traditional twelve-person criminal jury panel to advance both the appearance and reality of justice.

Justia columnist and Cardozo law professor Marci Hamilton comments on the role of the CRS—a little-known division of the Department of Justice—in the trial of George Zimmerman for the killing of Trayvon Martin. Hamilton starts with the facts that we do know and the many that we don't, and the perspective each side presented at trial. In addition, Hamilton questions the unclear role, here, of the Department of Justice’s Community Relations Service (CRS). Hamilton notes the role the CRS usually plays, and the evidence that has—and has not—been made public regarding the role it played here.

In Part One of a two-part series of columns, Justia columnist and U.C., Davis law professor Vikram David Amar explains why the Prop. 8 proponents are very unlikely to get the California Supreme Court to enforce Prop. 8 in light of the U.S. Supreme Court’s related ruling, although they are trying to do so with various gambits nonetheless. Amar describes the proponents’ strategies and explains why they seem doomed to fail. (Part Two of this series will appear here on Justia on August 2.)

Justia guest columnist and Northwestern law professor Joseph Margulies offers an interesting perspective on the controversies raised by the classified information leaked by Bradley Manning and Edward Snowden. Margulies asks what it reveals about ourselves and our life and times that Manning and Snowden, two anonymous functionaries in the vast machinery of the American military complex, have—within three years of each other—committed both the largest and apparently most important unauthorized releases of classified material in American history?

Justia columnist and U. Washington law professor Anita Ramasastry discusses the ways in which retailers at brick-and-mortar stores are profiling us. She notes that most of us realize that online stores can easily profile us, but many of us may not know that brick-and-mortar stores do the same thing in a different context. Ramasastry describes how these stores may track what we look at, where we browse and linger, what we might pick up and examine but then not ultimately buy. What department or section do we head for? How long do we spend in the sections of the store that we visit? Retailers now have access to this data due to our cellphones, but Ramasastry notes that we can thwart the surveillance by turning off the Wi-Fi feature of your phone, or putting it on airplane mode. In addition, Ramasastry urges, we ought to know when we are being monitored.

Justia columnist and Cornell law professor Michael Dorf builds on a recent column by fellow Justia columnist and former counsel to the president John Dean, discussing the substantive privacy issues raised by a recent petition to the Supreme Court seeking review of a top-secret order by a federal judge sitting in his capacity as a Foreign Intelligence Surveillance Court, who ordered Verizon to turn over call logs of all calls in which at least one party was in the United States; and forbade Verizon from informing its customers that their phone activity (though not the content of their conversations) would be shared with the government in this way. The order, notably, came to light only because Edward Snowden disclosed it. How will the legal arguments that the controversy has raised strike the Supreme Court's Justices? Dorf emphasizes that before we can know the answer, the Court must, of course, decide to accept the case for review, and as Dorf notes, there are serious procedural obstacles to its doing so.

Justia columnist and former counsel to the president John Dean calls on the Supreme Court to act now, after Edward Snowden’s disclosure of the top secret order signed by a Foreign Surveillance Intelligence Act (FISA) court Judge directing Verizon to turn over to the FBI and NSA all call detail records or telephony metadata created by Verizon for communications that occurred wholly within the United States, including even local telephone calls. Dean points out that Snowden’s information has energized those who are committed to protecting our privacy, and that they now are using this new information to head to various courts in order to try to place some controls, via a number of varied lawsuits, on what has been, Dean notes, a time of NSA surveillance gone wild.

Justia columnist and Cardozo law professor Marci Hamilton takes strong issue with the contention that a for-profit company is a religious “person” under the Religious Freedom Restoration Act (RFRA). The U.S. Courts of Appeals for the Third and Tenth Circuits have differed on the issue, and Hamilton argues that the Third Circuit is plainly right, and the Tenth Circuit plainly wrong. She also contends that the federal government should take an anti-RFRA position, just as it took an anti-DOMA position.

Justia columnist and Cornell law professor Sherry Colb comments on the Supreme Court’s recent decision in Alleyne v. United States, which concerns the Sixth Amendment right to a jury trial. The Court ruled there that a jury, not a judge, must make factual findings that raise the mandatory minimum sentence for an offense. Colb analyzes both the majority opinion and Chief Justice Roberts’s dissent, and explains which she finds more persuasive, and why. She also draws on social psychology research in her analysis.

Justia columnist and Hofstra law professor Joanna Grossman, and Justia guest columnist and University of Pittsburgh law professor Deborah Brake together comment on the Supreme Court's recent decisions in two cases that involved employment discrimination. In one, the Court narrowed the definition of “supervisor” in harassment cases, which reduces the number of cases in which employers can be held vicariously liable for unlawful harassment. In the other case, the same 5-4 majority took a restrictive view of causation in workplace retaliation cases, which Grossman and Brake note will undermine protection for workers who complain about discrimination. As Justice Ginsburg observed in her strong dissents in both cases, and as Grossman and Brake also contend, the majority opinions are insensitive to the realities of working life, and are wrongly preoccupied with making it easy for employers to win discrimination cases at the summary judgment stage.

Justia columnist and attorney Julie Hilden comments on a decision by U.S. District Judge Beryl A. Howell in favor of a man who protested on the Supreme Court Plaza, and was arrested as a result. Hilden agrees with Judge Howell that the statute under which the protester was charged was unconstitutional in that it violated the First Amendment, and explains why.

Justia columnist and U.C., Davis law professor Vikram Amar comments on initiative-sponsor standing and its role in the Supreme Court’s Proposition 8 case. Amar deems the High Court’s invocation of such standing both attractive and hazardous, and explains why that is the case. He also notes that an appealing middle path was ignored here: A state should be free to authorize sponsors to defend initiatives (in a way that federal courts will accept), but the authorization has to be done carefully and in a fashion that the voters can see.

Justia guest columnist and Touro Law Center professor Rodger Citron analyzes the Supreme Court's decision in the Kiobel case, which concerned the scope of the Alien Tort Statute (“ATS”), a federal statute relied upon by lawyers asserting claims of human rights violations. In particular, Citron focuses on how Kiobel fully illustrates the judicial philosophy of Chief Justice Roberts. In addition, he offers seven different ways of looking at the decision.

Justia columnist and Cornell law professor Michael Dorf isolates an interesting, but also troubling, pattern in the Supreme Court’s thinking, which he calls novelty-skepticism. Dorf notes that novelty-skepticism cuts across doctrinal areas, and defines it as a recent tendency of the Justices to presume that novel forms of legislation are unconstitutional merely in light of their novelty. Dorf offers examples of novelty-skepticism from recent decisions, and urges that the Court ought to give up its novelty-skepticism, for sometimes a new kind of law can be entirely constitutional, and in general, there is no good reason that a new law should have to jump constitutional hurdles that are higher than those that more familiar laws have had to scale.

Justia columnist and former counsel to the president John Dean comments on the testimony of DNI James Clapper regarding NSA data-gathering, testimony which appears to be false. Dean explains why, despite the apparent falsity of the testimony, it is highly unlikely that Clapper will be prosecuted. Some of the reasons why that is so, Dean notes, include the difficulty of successfully invoking laws that penalize lying to Congress. Dean describes the key three statutes that might be invoked, and explains why, over American history, there have been so few prosecutions for lying to Congress.

Justia columnist and Cardozo law professor Marci Hamilton comments on a little-remarked but important aspect of the recent Supreme Court decision in United States v. Windsor: the limits of the decision. For instance, she notes that gay people were not granted a constitutional right to be married in any state by the decision. Moreover, Hamilton points out that, despite the decision, there are only 14 jurisdictions, including the District of Columbia, where gay people will be able to marry, and where they also will be able to receive the identical federal benefits received by heterosexual couples. And, in the 37 states left to persuade, federal benefits for married couples can be limited to heterosexual couples. Thus, Hamilton notes that we are far from true equality for gay Americans.

Justia columnist and Hofstra law professor Joanna Grossman comments on the Supreme Court’s recent decision in United States v. Windsor, holding that the federal Defense of Marriage Act (DOMA)—passed in 1996 in haste to ward off same-sex marriage in the states—is unconstitutional. Grossman chronicles DOMA's history; discusses challenges to DOMA Section Three; and explains why Windsor was the perfect test case for DOMA. She also covers the standing issue, in addition to the merits questions discussed by the majority opinion and the dissent.

Justia columnist and Cornell law professor Sherry Colb comments on a Maine Supreme Court case regarding a child who was born male, but identified as a girl (“Susan Doe”). Susan’s school allowed her to use the girls’, rather than the boys’ bathroom, until a student’s grandfather complained, and Susan was required to use a separate, staff-only restroom that no other students used. Colb discusses the arguments—pro and con—for allowing Susan to use the girls’ bathroom at the school, just as other girls would.

Justia columnist and Cardozo law professor Marci Hamilton comments on the Supreme Court’s 5-4 decision in Shelby v. Holder, the Voting Rights Act case that the Court just resolved. Section 4(a) of the Act establishes a formula to be applied to identify jurisdictions that must obtain preclearance before they change their voting practices. Hamilton considers the majority and the dissent, and contends that coverage of the decision features a drastic overstatement of both the Court’s decision and its likely fallout.

Justia columnist and Hofstra law professor Joanna Grossman critiques the Supreme Court majority opinion in Vance v. Ball State University. There, Grossman explains, the Court majority held that a harasser does not qualify as a supervisor unless he or she has the power to “take tangible employment actions against the victim”—also known informally as having the power to hire and fire. This ruling matters in important ways, Grossman explains, because the employer’s liability under Title VII of the Civil Rights Act of 1964 for workplace harassment committed by supervisors is much stronger than it is for harassment inflicted by co-workers. Accordingly, the ruling leaves some workers with less protection from harassment than they would have had, if the Court's minority had had its way. Grossman also covers Justice Ginsburg's dissent, which she finds very persuasive.