Verdict

Justia columnist and Cornell law professor Sherry Colb addresses several legal questions that have arisen in the wake of the shooting of Trayvon Martin by George Zimmerman, such as what do “Stand Your Ground” laws really mean, and what vision of reality do these laws reflect? Colb begins her analysis by explaining related criminal law concepts such as the duty to retreat, and the “castle doctrine,” which holds that one need not retreat in one’s own home. She then explains the idea behind “Stand Your Ground” laws: They operate to protect an individual’s liberty to lawfully occupy a place, in the face of threats, and even in the face of an ultimatum from an attacker who announces that one must leave or die. Using hypothetical examples, Colb explains the difference that an “SYG” law could make in a potentially deadly confrontation, noting that almost half the states have such laws. She also uses an imaginative hypothetical regarding a person who does not know he has a deadly, communicable disease to illustrate the role that the assailant’s culpability takes in “Stand Your Ground” situations. Finally, Colb explains why she herself ultimately opposes “Stand Your Ground” laws.

Today, on Equal Pay Day, Justia columnist and Hofstra law professor Joanna Grossman comments on gender-based pay discrimination and the available remedies for it. Grossman covers the current status of the gender-based wage gap; the reasons why the gap persists and has proved difficult to remedy; and the efforts that have been made to bolster pay equality. Grossman first focuses on the clear evidence that pure discrimination plays a significant role in the wage gap. Then, Grossman discusses the roles that the Equal Pay Act and Title VII play, with respect to gender-based pay discrimination, and the unfortunate limitations of both laws. She also covers the more recent Lily Ledbetter Fair Pay Act, which President Obama signed into law during his first week in office. Finally, Grossman concludes by describing the key legal steps, procedural and substantive, that she argues should be taken in order to close the pay gap.

Justia columnist and attorney Julie Hilden discusses the types of complaints that libraries have received about the books in the Hunger Games trilogy, and argues that libraries should nevertheless keep the books on the shelves. The complaints that Hilden discusses claim that the books contain sex, are anti-ethnic, are anti-family, contain material that is “occult/satanic,” and are too violent. Except for the claim about violence, Hilden argues, these claims are inaccurate on the facts—they either do not accurately describe the books’ content, or they fail to put material from the books in proper context. Finally, regarding the claim about violence, Hilden notes that a number of classic works that are commonly taught in schools contain violent acts—and even, in cases like Lord of the Flies, acts of violence among children.

Justia columnist and Hunter College Human Rights Program Director Joanne Mariner comments on the official beginning of the military commission proceedings against Khalid Shaikh Mohammad and his four co-defendants. As Mariner notes, the United States is seeking the death penalty against all five men, who are accused of a litany of crimes relating to the 9/11 attacks: terrorism, hijacking, murder, conspiracy, and intentionally causing serious bodily injury. Mohammad, as Mariner explains, has taken responsibility for the attacks, and the other four defendants are alleged to have played key organizational or financial roles in the attacks. Mariner argues that for the verdict in these cases to be seen as just, the defendants must be granted basic procedural guarantees and must face an impartial and independent tribunal. However, Mariner argues, neither the procedures that will be used, nor the tribunal itself, fit these requirements. In particular, Mariner emphasizes the key differences between judicial independence and military discipline, when it comes to the administration of justice, and urges that civilian courts, not courts-martial, should be the tribunals adjudicating these cases. She cites the Zacarias Moussaoui civilian trial as a success in showing that the civilian justice system can work well even in terrorism cases, and suggests that these cases, too, should have gone forward in the civilian justice system.

Justia columnist and Cardozo law professor Marci Hamilton takes very strong issue with Republicans’ current stances on issues that are of importance to women, such as contraception access, equal pay for equal work, violence against women, and child sex abuse. As a politically moderate woman herself, Hamilton notes that she would find it very difficult to support the package of views and proposals that the Party is offering voters this year. Interestingly, Hamilton observes that, had Rick Santorum never run for president, the other candidates and the voters might never have focused on these issues, and the issue of the economy might, instead, have dominated Republican speeches and stances in the run-up to the election. But because Santorum did run, Hamilton predicts that Mitt Romney, too, will face a very significant gender gap at the polls this year as he, too, is forced to address these issues—for female voters will likely be uncomfortable with some of his answers.

Justia columnist and U.C., Davis law professor Vikram David Amar focuses in on a particular—and very significant—aspect of the Supreme Court’s recent oral argument regarding the Affordable Care Act, also known as “Obamacare”: Certain Justices seemed concerned that if Obamacare’s “individual mandate”—that is, its placing responsibility on individuals to purchase health insurance themselves—were to be upheld, then a slippery slope would follow. In particular, numerous conservative Justices asked, If the feds can require each person to buy health insurance, what can’t they force people to purchase? Amar contends that this “slippery slope” doesn’t really slip—pointing out that a very similar danger has existed in Commerce Clause jurisprudence for 50 years, and that the Court has proven more than able to address it. Thus, the individual mandate, he suggests, makes the slope no more slippery than it has been for quite a while now. Amar also cites the tools the Court has for limiting government powers in settings where mandates are already accepted, and contends that similar tools could be used in the context of Obamacare’s individual mandate.

Justia columnist and U. Washington law professor Anita Ramasastry comments on the “Girls Around Me” app, which Apple has now pulled from the iTunes app store, and Foursquare has also pulled. As Ramasastry notes, concerns were raised that the app—which showed photos and information taken from Facebook and Foursquare—could compromise privacy and enable the harassment of women. Ramasastry contends that in order to address such concerns, some websites’ Terms of Use need to be clarified, and we need to carefully consider the extent to which third-party developers can use, harvest, and manipulate data relating to individuals and their lives. She also calls for a federal law to better protect consumer privacy, including in the context of apps like these, and warns that laws and policies must take notice of the context in which a person’s information is being used, for some uses may be innocuous, and others pernicious.

Justia columnist and Cornell law professor Michael Dorf comments on a less often discussed but highly significant issue regarding the Supreme Court’s upcoming decision on Obamacare: If a majority of the Court finds that the minimum coverage provision is unconstitutional, how much of the rest of the law should—and will—also be invalidated by the Court? As Dorf notes, the Court heard from three attorneys who addressed this question, on the third day of oral argument in the case. The plaintiffs in the case contended that none of Obamacare should survive, but Dorf contends to the contrary that, if the minimum coverage provision is struck down, most of Obamacare should still be left standing. Dorf explains the root of the presumption that various parts of a law are severable from each other, and critiques the plaintiffs’ argument that Obamacare should be struck down in its entirety—setting forth three important respects in which he argues that that argument was wrong. One key point Dorf makes is that the statute as issue would work better if the minimum coverage provision were to be left standing, but it would still work if that provision were to be struck down.

In the second in this two-part series of columns, Justia columnist and former counsel to the president John Dean puts together substantial evidence suggesting that controversial Wisconsin governor Scott Walker possesses disturbingly authoritarian personality traits. Dean’s analysis draws from both his own 2006 book, Conservatives Without Conscience, and the work of Professor Robert Altemeyer. Here, in Part Two, Dean explains in greater detail, based on evidence from Walker’s life, why he believes that Walker is a “double high authoritarian”—a suggestion which, if true, would be very troubling, Dean explains, as those with such personalities tend to find it difficult to govern in a democratic fashion. With Walker facing a recall vote on June 5, voters will have another chance to assess their governor and consider whether they believe Dean is correct.

Justia columnist, George Washington law professor, and economist Neil Buchanan takes strong issue with several arguments that have often been made by Republicans in the run-up to this year’s presidential election. Specifically, Buchanan counters arguments that taxpayers should not help pay for others’ college educations—and perhaps not their K-12 educations, either. He also takes on the two mutually contradictory arguments that (1) college is a waste of time and money, and (2) college education is the only force driving economic inequality. As to the first argument, Buchanan points out that education is a key indicator of economic progress, and that as we stagnate in our population’s educational achievement, other countries eagerly seek out more college education for their own people. As to the second argument, Buchanan argues that it can be rebutted by basic statistics, and that, even if it were true, the logical response would be to broaden American educational attainment.

Justia columnist and attorney Julie Hilden comments on a student-speech case that was recently decided by a three-judge panel of the U.S. Court of Appeals for the Second Circuit. As Hilden explains, the case raised the question whether a 10-year-old student’s First Amendment rights were violated when he was suspended for six days based on arguably threatening—but possibly merely joking—words that he had written during a classroom assignment. The Second Circuit panel split 2-1, with the majority siding with the school. However, Judge Rosemary Pooler, in dissent, contended that under the central school-speech precedent of Tinker v. Des Moines Indep. Cmty. Sch. Dist., the student should have won. Judge Pooler argued that the young student's words were much more innocuous than the majority seemed to think, and emphasized that the Tinker test focuses on foreseeable disruption—of which, she concluded, there was little evidence in this case.

Justia columnist and Hofstra law professor Joanna Grossman discusses the important questions of whether and when a child who is born outside the U.S. can acquire citizenship from a U.S. citizen parent. Grossman focuses especially on the heartbreaking case of U.S. citizen Ellie Lavi, who gave birth to twins in Israel. When Lavi sought U.S. citizenship for the twins, the State Department informed her that the twins would not be deemed U.S. citizens unless Lavi could prove that the donor sperm or egg came from a U.S. citizen. Grossman strongly criticizes the State Department’s decision to, in effect, deem the gamete donors, not Lavi, the babies’ parents for purposes of U.S. citizenship—even though no one disputes that Lavi, a U.S. citizen, gave birth to the twins. Grossman covers the ways in which children can gain U.S. citizenship by descent; describes the more onerous rules for out-of-wedlock children; considers whether treating unwed citizen fathers and unwed citizen mothers differently is discriminatory; and discusses who counts as a “mother” and thus a person able to convey citizenship. Finally, Grossman considers four interesting scenarios regarding the descent of citizenship to children; describes the consequences of non-citizenship; and urges the State Department to deal more fairly and justly with the modern realities of reproductive technology.

Justia columnist and U.C., Davis law professor Vikram David Amar comments on a Supreme Court case from this Term that involves health care, but does not involve the PPACA (also nicknamed “Obamacare”). The case is Coleman v. Court of Appeals of Maryland, and the Court handed down its decision in that case last week. As Amar explains, in Coleman, the Court, by a 5-4 vote, struck down the provision in the Family and Medical Leave Act (FMLA) that subjects state-level government employers to damage liability if they fail to provide the legally-required unpaid leave to employees for self-care for a serious medical condition. Amar contends that Coleman is noteworthy not only because FMLA is a significant federal statute, but also because the Court’s decision gives us insight regarding the judicial doctrines that govern the scope of federal powers.

Justia columnist and Cornell law professor Michael Dorf comments on three important exchanges among the Supreme Court’s Justices that occurred during the Obamacare oral argument. As Dorf explains, the first exchange tested whether the government could constitutionally require Americans to buy things other than healthcare, such as burial insurance, mobile phones, or American cars. The second exchange involved a hypothetical regarding the government’s power to institute mandatory inoculation. And finally, the third exchange involved the Constitution's limits on “direct taxes.” Having discussed these important exchanges among the Justices, Dorf also describes what he believes to be the basis for the government’s best hope of winning the case.

Justia columnist, George Washington law professor, and economist Neil Buchanan comments on the recent Republican attack on American education. Buchanan begins by emphasizing the copious evidence showing that education leads to national prosperity. In addition, he contends that it only makes sense for everyone who benefits from our educational system—meaning all Americans—to together pay for that system, including via student loans. Citing recent comments by candidates Mitt Romney and Rick Santorum, Buchanan critiques and opposes their, and other Republicans’, seeming disdain for education. Buchanan argues that if you focus on the facts, education has been proven, over and over, to be well worth its cost. Other countries clearly know this, Buchanan points out, citing notable examples, and if we forget this truth, he says, we will surely fall behind as a nation.

In Part Two in a two-part series of columns, Justia columnist and Cornell law professor Sherry Colb continues her analysis of an important recent Supreme Court decision, Howes v. Fields, regarding the right to be read one’s Miranda rights—the familiar set of rights that begins with “You have the right to remain silent.” In Part One, Colb focused on a set of Supreme Court precedents that are relevant to the Howes case. Here, in Part Two, Colb takes on the case that is arguably the most relevant of all to Howes: Maryland v. Shatzer. Shatzer, as Colb explains, concerns what implications a “break in custody” might have for Miranda purposes, and whether such a “break in custody” can occur while a person is incarcerated. Colb goes on to explain and critique the Howes Court’s approach to related Miranda issues. She takes sharp issue, in particular, with what she characterizes as a deeply unrealistic view of prisoners’ lives in prison, on the part of the Court.

Justia columnist and U. Washington law professor Anita Ramasastry comments on the emerging law relating to whether potential employers may ask job applicants for their Facebook (and other social-media) passwords. Ramasastry describes efforts at both the federal and state level to prevent such practices, and to preserve the privacy of Facebook (and other social-media) users. In addition, she argues that these practices should indeed be illegal (to the extent that they are not already), in part because they may facilitate illegal discrimination. Ramasastry notes that two court decisions in this area of law sided with social-media users and against employers. She also points out that Facebook itself seems to be on the side of users who would like to keep their Facebook postings private from potential employers, but argues that Facebook users are still well advised to scrub their profiles of information and photos that might make a future employer balk.

Justia columnist and Hunter College Human Rights Program Director Joanne Mariner discusses the controversial subject of drone warfare, and the question of what rules should apply to it. She covers Attorney General Eric Holder’s speech on the issue, given earlier this month, which focused upon the use of lethal force against U.S. citizens. Mariner notes that this speech—building on earlier analyses by State Department Legal Adviser Harold Koh and Defense Department General Counsel Jeh Johnson—is the most thorough Obama Administration analysis of these issues to date. Mariner also contrasts the U.S. and Israeli frameworks for targeted killings—noting that the U.S. seems to be borrowing, lately, from the Israeli model. In particular, she compares the rules outlined in the Holder speech with the rules outlined in an Israeli Supreme Court opinion on similar topics. Finally, Mariner makes some predictions about the kind of approach we may see in the future in this area of law, which may combine elements of both military and civilian justice.

In this two-part series of columns, Justia columnist and former counsel to the president John Dean comments on authoritarian personality traits, drawing from his own 2006 book, Conservatives Without Conscience, and from the work of Professor Robert Altemeyer on this subject. In particular, Dean raises the question of whether controversial Wisconsin Governor Scott Walker might be categorized as having an authoritarian personality. In this column, Part One in the series, Dean explains the personalities of authoritarian dominators and followers, and unravels the conundrum of how some people (called “Double High Authoritarians”) may test as both dominators and followers at the same time. Dean notes that such people are especially frightening, and explains why that is the case. In addition, Dean ascribes some part of the Nixon White House’s dysfunction to the large contingent of “Double Highs” in the Administration, including Nixon himself. Finally, Dean begins his analysis of Governor Walker, which he will complete in Part Two of this series of columns.

Justia columnist and Cardozo law professor Marci Hamilton comments on Massachusetts’s recent movement toward reforming the statutes of limitations (SOLs) for child sex abuse. In addition to covering the Massachusetts situation, Hamilton also argues that the tide is turning, nationwide, on the SOL issue. In particular, she cites progress in New York, Pennsylvania, Wisconsin, and Hawaii. Hamilton also takes strong issue with the Catholic Bishops’ contention that paying out child sex abuse claims will bankrupt them. Finally, Hamilton observes a new development in the movement against child sex abuse, and toward SOL reform in that area: Incest survivors and clergy child sex abuse survivors, Hamilton notes, are coming together to fight abuse and seek SOL reform.