Verdict

Labor of Love: Sex, Jobs, and Workers' Compensation
Updated:

Justia columnist and Hofstra law professsor Joanna Grossman, and Justia guest columnist and Stanford law professor Lawrence Friedman comment on a case that raised the issue whether workers' compensation covered an injury that was incurred during sex on a business trip, with the injury at issue involving a broken and dangerous light fixture. Grossman and Friedman explain why, though the Australian woman who suffered the light-fixture injury prevailed on her workers' compensation claim, and most American claimants injured during sex on a business trip likely would, too, other would-be claimants with sex-on-a-business-trip injuries have been left without any remedy from workers’ compensation.

Do Special Legislative Protections for Labor Picketing Violate the First Amendment? The California Supreme Court in the Ralphs Grocery Case Says “No,” Disagreeing with the D.C. Circuit and Setting Up a Split Only the Supreme Court Can Resolve
Updated:

Justia columnist and U.C., Davis law professor Vikram David Amar comments on the possible First Amendment issues that could arise from the application of laws that especially favor labor picketing, above other kinds of picketing. Amar covers a recent California Supreme Court ruling on the issue, and the relevant U.S. Supreme Court precedents as well. Amar critiques the California Supreme Court's analysis, but also concludes that, in the end, the California Supreme Court's result was the right one. Amar also notes the reasons why this important First Amendment/labor rights issue may ultimately land at the U.S. Supreme Court in the coming years.

Marking the Fortieth Anniversary of Roe v. Wade Part One: Where Three Common Criticisms Go Wrong
Updated:

In the first in a two-part series on Roe v. Wade on its 40th anniversary, Justia columnist and Cornell law professor Michael Dorf explains where three common criticisms of the controversial Supreme Court precedent each go wrong. The criticisms run as follows: (1) that the constitutional text nowhere mentions abortion; (2) that the original meaning of the Fourteenth Amendment did not encompass a right to abortion; and (3) that the courts ought to stay out of socially divisive issues. If these objections are carefully considered, Dorf concludes, none of them holds water. Still, Dorf notes, Roe was nonetheless a hard case. (Dorf will continue his commentary on Roe’s 40th in his Wednesday, January 23 column.)

President Obama’s Least Bad Options: Understanding Two Independent Constitutional Justifications for Exceeding the Debt Ceiling, and Exploring Two Ways to Do So
Updated:

Justia columnist, George Washington law professor, and economist Neil Buchanan continues his ongoing commentary (which has, at times, been co-written with fellow Justia columnist and Cornell law professor Michael Dorf) on how President Obama should handle the debt-ceiling situation. More specifically, Buchanan focuses on what he calls the President’s two least bad options, should he decide to issue debt in excess of the debt ceiling. They are (1) issue new debt as usual, and (2) issue IOUs to the public. Buchanan acknowledges that neither option is without risk, but he points out that those risks exist only because the Republicans in the House have insisted on creating this crisis, and thus the responsibility for any such risk should be laid at their door, not that of the President.

Revenge Porn Returns, with Home Addresses: Why the Site Is Legal and What Legislators Might Do to Fix That
Updated:

Justia columnist and U. Washington law professor Anita Ramasastry discusses the way in which Section 230 of the Communications Decency Act (CDA) has unintentionally offered a safe harbor to websites on which people’s exes post nude or other intimate photos that were taken during the course of a relationship, and that were intended by the subject of the photo to be forever kept private. Ramasastry notes how adding additional information to the photo, such as a home address, could be a crime, as it aids cyberstalking. In addition, she urges that Congress ought to amend Section 230 in order to prevent unintended negative consequences like these.

Can Health Care Providers Ethically Go on Strike?
Updated:

Justia columnist and attorney David Kemp considers the ethics around health care providers going on strike. Invoking various philosophical viewpoints relating to the matter, Kemp notes that while the unjust treatment of any group of employees is intolerable, there is a unique set of factors present when discussing the labor conditions of health care providers. Kemp points out that both the patient and the individual employee are impacted by unjust or unfair working conditions, but argues that because the health-care provider’s first duty is to care for the patient, the strike may not be an ideal negotiation device. Kemp concludes that although there are strong arguments on both sides, the risk of harm to patients ultimately outweighs the need for health-care workers to strike in a majority of circumstances.

Why President Obama Could Easily Be Impeached Over the Debt Ceiling If Congress Fails to Raise It
Updated:

Justia columnist and former counsel to the president John Dean discusses the debt-ceiling crisis and how it might play out. Dean notes that if both sides remain adamant in their positions, we will be in unchartered territory, and that President Obama is refusing to negotiate this time around. To make the stakes here clear, Dean describes the impact of failing to raise the debt-ceiling limit. Moreover, citing the work of fellow Justia columnists Neil Buchanan and Michael Dorf, Dean also explains the constitutional and legal problems that will arise if the debt ceiling is not raised, and why its not being raised is a real possibility. Dean also questions whether an out-of-control Congress might even attempt to impeach President Obama if he were to be forced to break the law in order to prevent the U.S. from defaulting, and avert a financial catastrophe.

Football, Sexual Assault, and the Web: The End of the Institutional Cover-ups of Sexual Abuse and Assault
Updated:

Justia columnist and Cardozo law professor Marci Hamilton comments on the confluence of forces that have made the victories in the fight against child sex abuse possible. Among the key factors, Hamilton argues, are the end of the old boys’ network; survivors who are empowered by the justice system; and revelations that go public far more quickly than they could have prior to the Age of the Internet, when victims and critics of abusers have a strong, far-reaching voice and the ability to recruit allies and supporters. With all these developments, together, sparking public outrage, Hamilton notes that even previously untouchable football institutions can be made accountable—noting, for instance, the crimes toward a young woman in Steubenville, Ohio, by members of that town’s team.

The U.S Court of Appeals for the Sixth Circuit Upholds Restrictions on Medical Abortion: Why Should Anyone Care?
Updated:

Justia columnist and Cornell law professor Sherry Colb discusses the ramifications of the U.S. Court of Appeals for the Sixth Circuit’s decision to uphold a series of restrictions on medical abortions (such as abortions effected by taking the drug RU-486) against various constitutional challenges by Planned Parenthood and others. Colb explains why making medical (as opposed to surgical) abortions more difficult can also have other ramifications, as well. For instance, she suggests that the restrictions at issue may be motivated by politics, and not by concern for women’s health. In particular, Colb points out that medical abortions do not require clinic visits where women seeking abortions must face down pro-life protesters; and that such abortions, with no health care provider involved, may defeat a pro-life strategy of vilifying abortion providers and painting women who seek abortions as victims of society’s decision not to fully support motherhood.

When Good Courts Go Bad: The Iowa Supreme Court Issues an Absurd Decision on Sexual Jealousy and Employment
Updated:

Justia columnist and Hofstra law professor Joanna Grossman takes strong issue with a recent Iowa Supreme Court decision holding that a male dentist did not violate a law banning sex discrimination in employment when he fired his very competent dental assistant simply because he was attracted to her. Grossman argues that the Iowa courts should, in this case, have recognized that the dentist perpetrated what is called “sex-plus discrimination,” which joins sex discrimination with another factor, such as an attraction to a particular person of that sex. Thus, Grossman explains, it is not a factor in the dentist's favor, legally, that he had hired other female assistants, and did not harass them. When women are treated worse than men at work because of their gender, Grossman concludes, discrimination law must apply, regardless of how many women are harassed or how selective or attraction-based the harasser may be.

What Can The President Do When Congress Gives Him a “Trilemma” of Unconstitutional Choices? Understanding Why the President Must Exceed the Debt Ceiling
Updated:

Justia columnist and Cornell law professor Michael Dorf and Justia columnist, George Washington law professor, and economist Neil Buchanan argue that, faced with a trilemma of unconstitutional choices, President Obama effectively has no choice but to exceed the debt ceiling, and they explain exactly why that is. Buchanan and Dorf describe why, to honor the Constitution, a President must choose to issue debt in excess of the statutory limit, if the budget otherwise requires him to do so. They also argue that even Republicans in Congress should want the President to issue more debt, if Congress itself is unable to find a way to do its duty and increase the debt ceiling as needed. In their analysis, Buchanan and Dorf also invoke the idea that some choices are more unconstitutional than others; constitutionality, in other words, isn’t just either/or.

The First Amendment and a New York State Newspaper’s Reportage of the Names of All Area Individuals Holding Pistol Permits
Updated:

Justia columnist and attorney Julie Hilden comments on the controversial decision by the suburban New York newspaper The Journal News to report the names of area residents who possess pistol permits. Hilden discusses both a possible defense for the newspaper’s controversial action, and also some reasons why that action, while legal under area law and First-Amendment-protected, may not have been prudent—particularly since revealing who is armed in a given community also implicitly reveals who is unarmed and thus potentially vulnerable and therefore, the newspaper’s reportage might cause many area residents to arm themselves.

The Constitutional Problems With the Hawaii Law By Which Senator Schatz Was Appointed to Replace the Late Senator Inouye
Updated:

Justia columnist and U.C., Davis law professor Vikram David Amar argues that there are serious Seventeenth Amendment issues plaguing the Hawaii law that resulted in the temporary appointment of Senator Schatz, after Hawaii Senator Inouye had passed away. More specifically, Amar explains, Hawaii law provides that its Governor shall make a temporary appointment to fill a Senate vacancy by selecting a person from a list of three prospective appointees submitted by the same political party to which the prior incumbent had belonged. Amar questions the constitutionality of Hawaii's procedure with respect to the three-prospective-appointee list and how it is composed.

A Mismatch Between Tax Politics and Deficit Rhetoric: A Very Bad Tax Deal Is Passed by Politicians Who Do Not Understand the Economics of Deficits
Updated:

Justia columnist, George Washington law professor, and economist Neil Buchanan sharply critiques the tax deal that was just passed. Buchanan contends that the big picture here is very different from that painted by Beltway insiders in the run-up to the deal, in important ways. To support his points, Buchanan covers the basics of the deal; points out that merely because both sides were disappointed does not mean that a good deal was struck; and questions the need for the deal in light of the fact that the long-term budget situation looks significantly better than most people think, in part because certain pessimistic assumptions about health-care costs have so far not proven true.

What Gun Regulations Will the Supreme Court Allow? Part Two: Originalism and the Second Amendment
Updated:

In the second in this two-part series of columns on constitutional gun regulation, Cornell law professor Michael Dorf comments on the ways in which the Supreme Court may interpret the Second Amendment, after the Newtown, Connecticut massacre. In particular, Dorf notes subtleties of interpretation that may matter greatly in this area of constitutional law. In particular, Dorf comments on the difference between living constitutionalism and originalism, and the difference between old originalism and new originalism. Dorf also takes Justice Scalia to task for not fully practicing what he preaches, harkening back to Scalia’s recent comment that the Constitution is “dead, dead, dead.”

A Necessary Beginning To Ending Capitol Gridlock: Filibuster Reform
Updated:

Justia columnist and former counsel to the president John Dean urges that filibuster reform is vitally necessary if the nation is to get Congress working again. Dean places the problem squarely on Republicans’ shoulders, and describes the Party’s filibuster abuses. He also notes the baleful effect of the Republicans’ use of the filibuster upon the judicial confirmation process, triggering an emergency situation in the judicial branch. Dean comments on what effective filibuster reform would look like; contends that there are no strong arguments against it; and explains the so-called “nuclear option” that Democrats still could invoke if they so chose.

What Gun Regulations Will the Supreme Court Allow? Part One: Restricting Firearms Outside of the Home
Updated:

In Part One of a two-part series of columns on the Second Amendment and gun regulation, Justia columnist and Cornell law professor Michael Dorf considers the question of which firearm regulations the Supreme Court will allow, and which the Court will consider to be Second Amendment violations—a timely question in light of the Newtown Massacre and the many gun-control ideas and suggestions to which that tragedy has led. While some of these suggestions are clearly constitutional, as Dorf explains, others may or may not be. Dorf focuses especially on the possibility of a ban on possession of firearms in public places, and its possible constitutionality or lack thereof, noting that two prior Second Amendment cases that the Court handed down, in 2008 and 2010, do not resolve that issue.

How a Case About Decriminalization of Marijuana Has Substantial Implications for the Rights of Gay and Lesbian Persons
Updated:

Justia columnist Vikram David Amar and Justia guest columnist Alan Brownstein, both U.C., Davis law professors, comment on the connection between a case about decriminalizing marijuana, and another case about gay and lesbian rights—and in particular, about sexual orientation change efforts (SOCE), which are now prohibited in California where those under 18 are involved. Amar and Brownstein describe SOCE methods, and the two cases, with very different judicial results, which confronted the question whether barring SOCE violates the First Amendment, and particularly the right of doctors to communicate with their patients. They then explain the central importance of the marijuana-decriminalization precedent when it comes to the SOCE cases, which may well end up before the U.S. Court of Appeals for the Ninth Circuit.

Instagram’s Terms of Service Revision: Why It Strained the Bounds of Fair Contracting
Updated:

Justia columnist and U. Washington law professor Anita Ramasastry comments on the photo-sharing site Instagram’s controversial change to its Terms of Service (ToS), which has had some users up in arms—mainly because of a term that would allow Instagram to share a user’s photos with Facebook (which owns Instagram) and marketing affiliates for the purpose of creating paid advertisements, with the revenues going to Instagram, and not the photo owner. Due to the controversy, Instagram has a new ToS, but Ramasastry contends that the new ToS is also problematic for its own reasons.

How Many Times Will Speaker Boehner Save President Obama From Himself? The Budget Negotiations Show That the President Is Still a Center-Right Politician Elected by Center-Left Voters
Updated:

Justia columnist, George Washington law professor, and economist Neil Buchanan argues that while President Obama appeals to voters on the left and in the middle, his economic policies are actually center-right—which might be a surprise to some of his constituents. Moreover, Buchanan points out that Obama has several times compromised with himself, rather than with the Republicans, in key negotiations, thus losing ground that, Buchanan suggests, didn’t need to be ceded. Buchanan also takes Obama to task for lacking the will to increase tax rates on the wealthiest taxpayers.

Meet our Columnists
Vikram David Amar

Vikram David Amar is a Distinguished Professor of Law at UC Davis School of Law and a Professor of Law and Former Dean at the University of Illinois College of Law on the Urbana-Champaign campus.... more

Neil H. Buchanan

Neil H. Buchanan, an economist and legal scholar, is a visiting professor at the University of Toronto Law school. He is the James J. Freeland Eminent Scholar Chair in Taxation Emeritus at the... more

John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973. Before becoming White House counsel at age thirty-one, he was the chief minority counsel to the... more

Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He has written hundreds of popular essays, dozens of scholarly articles, and six books on constitutional... more

Samuel Estreicher

Samuel Estreicher is Dwight D. Opperman Professor of Law and Director of the Center of Labor and Employment Law and Institute of Judicial Administration at New York University School of Law. He... more

Leslie C. Griffin

Dr. Leslie C. Griffin is the William S. Boyd Professor of Law at the University of Nevada, Las Vegas Boyd School of Law. Prof. Griffin, who teaches constitutional law and bioethics, is known for... more

Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School of Law and is currently serving as the Herman Phleger Visiting Professor at Stanford Law School. ... more

Marci A. Hamilton

Professor Marci A. Hamilton is a Professor of Practice in Political Science at the University of Pennsylvania. She is also the founder and CEO of CHILD USA, a 501(c)(3) nonprofit academic think... more

Joseph Margulies

Mr. Margulies is a Professor of Government at Cornell University. He was Counsel of Record in Rasul v. Bush (2004), involving detentions at the Guantánamo Bay Naval Station, and in Geren v. Omar... more

Austin Sarat

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College.Professor Sarat founded both Amherst College’s Department of Law,... more

Laurence H. Tribe

Laurence H. Tribe is the Carl M. Loeb University Professor Emeritus at Harvard University and Professor of Constitutional Law Emeritus at Harvard Law School, where he has taught since 1968. Born in... more

Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately prior to taking the position at Illinois, Wexler was a Professor of Law at Florida State University,... more