Verdict

Justia columnist and attorney David Kemp discusses a story that illustrates the need for every individual to clearly express his or her instructions for end-of-life care. He first considers why this particular story captured national audiences and then discusses what people should take away from the story. He argues that everyone should have an advance medical directive or similar document to guide friends and loved ones as to end-of-life wishes.

Justia columnist and former counsel to the president John Dean argues that Republican obstructionism in Washington, DC today can be solved in ways similar to those that defeated Republican obstructionism in California. Dean chronicles key events in California’s experience, commenting on the Schwarzenegger Administration and the most recent Brown Administration, and remarking upon the ways in which Democrats, Labor, and Progressives made the Republican Party irrelevant in California, with tactics including registration drives targeting ignored categories of voters. Dean also details the five-step process used in California to defeat Republican obstructionism, and suggests how a similar process could be used at the national level, as well.

Justia columnist and Cardozo law professor Marci Hamilton discusses what the institutions and people who oversee youth and school sports must do in order to avoid child sex abuse, and other types of abuse that can be related to sports, such as verbal abuse. Hamilton begins by noting that we need to clearly define what is abuse, whether sexual, verbal, or otherwise. In addition, she argues that youth athletic organizations need to institute hotlines for reporting abuse, and also to ensure backup support for young athletes if a hotline alone is not enough, as it may not be in some circumstances. In addition, Hamilton discusses the institution of penalties for adults who know of abuse and do nothing, and notes how sports culture can be changed for the better with the help of The Positive Coaching Alliance.

Justia columnist and Cornell law professor Sherry Colb comments on a discrimination case in which the Cincinnati Children’s Hospital Medical Center fired a Customer Service Representative, Sakile S. Chenzira, for refusing to get a seasonal flu vaccine, in contravention of hospital policy. Chenzira refused the vaccine because she is a vegan and the vaccine is produced in chicken eggs. After her firing, Chenzira went to federal district court, arguing that her firing violated her right to be free of religious discrimination. The court denied the hospital’s motion to dismiss the case, and decided to hear the evidence. Colb describes in detail what it means to be a vegan, and explains why, for some vegans, the decision whether or not to be vaccinated is a difficult one. She also discusses when, under federal law, a belief system counts as a religion, noting that veganism ought to qualify under that definition. Colb also offers a prediction as to the likely outcome of Ms. Chenzira’s case.

Justia columnist and Hofstra law professor Joanna Grossman discusses the Family and Medical Leave Act (FMLA) on its twentieth anniversary. Grossman notes that after an eight-year fight over its provisions, the FMLA was left somewhat anemic when it was finally enacted into law. Grossman also explains specifically why the FMLA is disappointing to many workers: For instance, many U.S. workers are not eligible for FMLA leave; many of the eligible cannot afford to take leave; and the FMLA has done little to alter the disproportionate burden of caretaking that falls on women in most families. In addition, Grossman points out, the FMLA did not alter the U.S.’s disappointingly low ranking among industrialized countries when it comes to medical and caretaking leave benefits for workers. Grossman urges some much-needed fixes to the FMLA, advocating that the law should be changed to solve some serious problems with, and close some worrisome gaps in, leave benefits, which she details.

Justia columnist and attorney Julie Hilden comments on the first case invoking the 2010 California anti-paparazzi statute. The paparazzo at issue had mounted a high-speed chase following Justin Bieber, which fell within the statute’s prohibitions; he was then charged not only with reckless driving, but also with an offense under the anti-paparazzi statute. But does that statute violate the First Amendment? Hilden explains why it might be thought to. Notably, if the statute is upheld, Hilden suggests that it may substantially change the cat-and-mouse games that paparazzi play with the celebrities whom they seek to photograph.

Justia columnist and U.C., Davis law professor Vikram David Amar comments on the recent Supreme Court ruling in the Clapper case, which raised the question whether Amnesty International USA and other plaintiffs had standing to go to court to challenge a law passed by Congress in 2008 that permits the federal government to undertake additional surveillance and information-gathering with respect to persons outside the United States. In a 5-4 ruling, the Court held that the plaintiffs lacked standing to challenge that law; Amar explains the reasoning of the majority and that of the dissent, respectively.

Justia columnist, George Washington law professor, and economist Neil Buchanan explains the difference between the sequester and the debt ceiling. He faults Republicans for manufacturing three artificial political crises: shutdowns, defaults and artificial spending cuts. He also makes clear the differences between unilateral Presidential action and Congressionally mandated arbitrariness when it comes to cuts. Moreover, he raises the following questions: When Congress inflicts pain on Americans on purpose, what, if anything, can the President do? Must he still follow Congress’ laws even then?

Justia columnist and Cornell law professor Michael Dorf contrasts Obama’s policy of targeted killings of persons believed to be leaders of al Q’aeda, with George W. Bush’s prior policy of authorization of the use of torture. The issue is timely in the wake of the release of an Obama Administration white paper on the targeted-killing issue. Dorf notes that the Administration is drawing criticism from both the right and the left on that issue. Dorf argues that the Administration is right to seek to craft a policy that complies with both the U.S. Constitution and the international law of war. He also examines the views of controversial conservative law professor John Yoo on which is worse: the Obama Administration’s targeted killing policy, or the Bush Administration’s torture policy. Dorf also looks at such questions from the point of view of not just law, but also morality.

Justia columnist and U. Washington law professor Anita Ramasastry comments on the FTC’s recent focus on privacy protections for mobile applications, and how key players in the rapidly-expanding mobile marketplace can better inform consumers about their data collection and use practices. Ramasastry also discusses the recent FTC enforcement action that led to a settlement with Path, a mobile social network, relating to its mobile privacy practices. Path lets users keep online journals that can be shared with a limited group of family and friends. The FTC fined Path $800,000, charging the company with violating federal statutory privacy protections for children by collecting personal information on underage users. Ramasastry deems the FTC’s scrutiny of mobile apps to be appropriate and timely right now, as more and more Americans rely heavily on mobile devices.

Justia columnist and attorney David Kemp discusses the disparity between legal education and the legal profession. He describes the strengths and shortcomings of a legal education as provided by many law schools today. He then contrasts what law school provides with what is actually demanded of attorneys, finding that there is a sharp discontinuity between the two. He argues that while some measures have been undertaken to fix the problem, such as revised curricula and state certification of limited-license legal technicians, no solution can be adequate without also considering the career advice that students receive prior to deciding on a legal career and applying to law school.

Justia columnist and former counsel to the president John Dean discusses President Obama’s State of the Union voting commission proposal, and the two well-known Washington lawyers—one a Democrat, the other a Republican—who will head the Commission. The Commission will be tasked with improving the voting experience for Americans, in the face of, among other voting problems, reports of extremely long lines at the polls in some states in 2012. Dean argues that the history of presidential commissions is not encouraging, but that President Obama’s Commission could do some good if it focused on preventing a repeat of Republicans’ efforts in 2012 election to make voting more difficult, and thus advantage their own party.

Justia columnist and Cardozo law professor Marci Hamilton argues that Hurricane Sandy disaster relief cannot constitutionally be extended to religious institutions, and notes that such relief was not extended to houses of worship in prior, similar situations. She also contends that religious institutions should go back to their days of eschewing government funding entirely. Accordingly, Hamilton opposes the Federal Disaster Assistance Non-Profit Fairness Act, and notes that the church/state entanglement issues that will arise if the government is involved in funding the rebuilding of a damaged house of worship.

Justia columnist and attorney Julie Hilden comments on a case of online defamation, in which a doctor sued a patient’s son for the son’s harsh online reviews regarding the doctor’s care of the patient's father. The Minnesota Supreme Court ruled that none of the statements in the son’s reviews could be sued upon, either because they were substantially true, because they were not capable of defamatory meaning, or because, in one case, the statement at issue was a statement of pure opinion. Hilden explains why the online-review-writer prevailed here, and notes some other reasons why online reviews may or may not successfully be sued upon.

Rodger Citron, a professor of Law at Touro Law Center in Central Islip, New York, comments on an upcoming Supreme Court case regarding “arising under” jurisdiction, a phrase that the Constitution and a number of federal statutes employ to authorize a party to assert a claim based upon federal law in federal court—and also, in limited circumstances, when a claim is based upon state law but cannot be decided without determining an issue of federal law. Citron discusses not only the concept of “arising under” jurisdiction, but also the Court's recent oral argument involving that concept.

Justia columnist and Hofstra law professor Joanna Grossman discusses a New Jersey case in which the state’s high court held unanimously—and perhaps surprisingly, to some—that the state may not find a newborn to be abused or neglected based solely on evidence of prenatal drug exposure, without evidence of actual harm to the child. Grossman covers the problem of drug use among pregnant women; states’ various approaches to that problem; and the question of when pre-natal drug use should be deemed child abuse under the law.

Justia columnist, George Washington law professor, and economist Neil Buchanan cautions young people that there is much misinformation in the media, and from some in Congress, now about Social Security, which he urges them to resist. Buchanan counters the misinformation by, first, explaining the basic financial workings of the Social Security program, and then explaining why the aging of the Baby Boom generation will not inexorably harm younger citizens when it comes to Social Security, as some claim. Buchanan also argues that Democrats should not give ground on Social Security, as President Obama has tried to do, because, in the long run, keeping Social Security strong will benefit both the young and the old alike.

Justia columnist and U.C., Davis law professor Vikram David Amar discusses the question whether BLAG, the Bipartisan Legal Advisory Group of the House of Representatives, has standing in the same-sex marriage cases now before the Supreme Court. Amar details the argument made by professor Vicki Jackson, who was appointed by the Supreme Court to brief questions as to whether BLAG has standing, and also whether the case is justiciable. Amar notes the role of the key precedent of INS v. Chadha, which concerned a legislative veto, and other important precedents that may prove significant to the Court.

In Part Two of a two-part series of columns, Justia columnist and Cornell law professor Sherry Colb continues her commentary on an upcoming Supreme Court case that raises the following question: Does the Fifth Amendment’s guarantee of protection against compelled self-incrimination protect a suspect’s “right to remain silent” outside of the custodial setting? That is, does a suspect who has neither received any Miranda warnings nor is currently in custody have a right not to speak? In this series, Colb analyzes the question and suggests possible answers. (Part One of this two-part series appeared here on Justia’s Verdict on Wednesday, February 6.)

Justia columnist and Cardozo law professor Marci Hamilton comments on last week's issuance by, the Obama Administration, of revised HHS regulations that accommodate religious organizations that object to providing contraception and abortion services as part of their requirement to provide health insurance under the Affordable Care Act (ACA). Hamilton explains the exemption, its four criteria, and how the rules work. She also notes that the religious exemption does not apply to for-profit entities, and likely will be held not to apply to nonprofit entities, either. The reason the exemption likely does not apply, Hamilton explains, is that employers are completely out of the loop, with the health insurance issue (including issues regarding contraception and abortion) now solely an issue, under the regulations, between a woman and her doctor.