Verdict

Single-Sex Public Schools and Classes: A Dangerous Lesson in Stereotypes?
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Justia columnist and Hofstra law professor Joanna Grossman comments on some troubling aspects of the federal regulations regarding single-sex public schools and public-school classes, and how those regulations have often been distorted in practice. These developments, Grossman notes, have led to a current nationwide ACLU investigation, from which preliminary findings have been made; and to a lawsuit, with more suits possibly to come. Grossman first explains the law and regulations that govern single-sex public schools and public-school classes, some of which derive from George W. Bush Administration regulatory changes that took effect in 2006. Detailing the content of the regulations, Grossman then argues that they not only run afoul of the law, but are also likely damaging the very children whom they are supposed to be helping. She also questions the decision to have schools self-enforce the very rules that are supposed to bind them. In addition, Grossman cites other baleful aspects of the 2006 changes, including their tendency to invite gender stereotyping, along with gender segregation, and the fact that they were based on what is clearly now-discredited science. Grossman argues that the Obama Administration’s Department of Education’s Office of Civil Rights (OCR) should now take the opportunity to correct and update the regulations at issue.

A Federal Judge Declines to Grant a Motion to Dismiss a Minnesota Student’s First (and Fourth) Amendment Complaint Based on Her School’s Demand That She Give Up Her Facebook and Email Passwords
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Justia columnist and attorney Julie Hilden comments on a recent decision by a Minnesota-based federal court, regarding a student whose school punished her for two postings she had made on Facebook, after forcing her to give over to the school her personal Facebook and email passwords. The court, as Hilden explains, refused to dismiss the student’s complaint, and offered in its opinion an excellent summary of the existing law regarding schools’ ability—or, in some cases, their lack thereof—to punish students’ off-campus, after-hours speech.

An Interesting Takings Case on the Supreme Court’s October Argument Calendar: Arkansas Game & Fish Commission v. United States
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Justia columnist and U.C., Davis law professor Vikram Amar comments on an upcoming Supreme Court case that raises a Takings Clause issue. (The Takings Clause, as Amar explains, is that part of the Fifth Amendment that forbids the federal government from taking private property for public use without just compensation.) In the case before the Court, Amar explains, the key question is as follows: In the context of the facts at issue, does temporary incremental flooding, caused by the federal government, onto other lands (which are subject to some flooding in any event) amount to a taking for which compensation is required under the Fifth Amendment’s Takings Clause? Amar explains the competing arguments, and notes the reasons why it will be very interesting to see what law the Supreme Court chooses to make in this case.

What Would Happen to Young People If We Cut Their Parents’ and Grandparents’ Government Benefits? The Third in a Series of Columns Analyzing What Mitt Romney Would Do As President
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Justia columnist, George Washington law professor, and economist Neil Buchanan comments on the Romney/Ryan proposal to cut seniors’ benefits. (Although the Republicans are now backpedalling on the proposal, Buchanan points out that such cuts must be the very essence of their strategy, for they refuse to raise taxes, including taxes on the rich.) Buchanan contends that such cuts will harm not just the elderly, but also their children and grandchildren, because the harm to one generation will inevitably harm the others that follow. With younger people being forced to heavily subsidize and support their parents and grandparents, due to the cuts, Buchanan predicts that more families will then need to worry about their finances. Moreover, Buchanan adds, the brunt will fall not only on elders’ families, but also on our regional and national economies as well.

A Federal Appeals Court Upholds Louboutin’s Trademark for Red-Soled Shoes: Has the Law Granted Too Much Protection for Intellectual Property?
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Justia columnist and Cornell law professor Michael Dorf comments on a very interesting court case regarding intellectual property rights. As Dorf explains, the case concerned Christian Louboutin’s famous red-soled high-heeled shoes, and pitted Louboutin against Yves Saint Laurent. Dorf discusses the reasons a New York-based federal district court ruled against Louboutin, and the reasons a panel of the U.S. Court of Appeals for the Second Circuit reversed and remanded the case. Dorf questions the Second Circuit decision; questions more generally whether the law overprotects intellectual property; and urges that our legal regime must keep in mind the very real risk that the law in this area, rather than protecting creativity, will become a barrier to it. Dorf also briefly discusses the somewhat similar Apple/Samsung dispute.

Does Match.com Have To Make Sure Its Member Profiles are Real and Accurate? Why A Federal Judge Correctly Ruled No
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Justia columnist and U. Washington law professor Anita Ramasastry comments on a federal-court class-action lawsuit against Match.com that had been brought by disgruntled daters who alleged that Match.com engaged in deceptive trade practices, and breached its contract with its users. In particular, users have complained that after they joined the site, they found that it contained numerous profiles that were inactive, and numerous others that were merely spam. After analyzing the site's Terms of Service (ToS), however, Ramasastry concludes, as the court did, that Match.com did not violate its ToS, nor did it engage in deceptive trade practices. Ramasastry therefore warns Internet users who seek to join pay sites, to first look very carefully at what the ToS do—and do not—actually promise, before signing up. Finally, Ramasastry notes some of the guidelines for dating online that the Better Business Bureau (BBB) has developed.

The Failure of Criminal HIV Transmission Laws
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Justia columnist and attorney David Kemp criticizes criminal HIV-transmission laws, arguing that the criminalization of HIV transmission succeeds only in marginalizing people with HIV; deterring sexually active persons from acting responsibly and getting tested; and in some instances, leading to violations of constitutional due process protections. Kemp notes that such laws have led to dramatic injustice, citing, as a case in point, the 25-year sentence that was imposed on a man after his one-time encounter involving protected sex. Though that particular sentence was ultimately commuted to five years of supervised probation, laws that allow strict punishments for consensual sexual contact still remain on the books. Rather than resort to invoking such laws, Kemp argues, states should focus their efforts on (1) seeing that people know their HIV status by getting tested; (2) seeing that people disclose their HIV status to their sexual partners; and (3) urging people to engage in safer behavior via publicly funded campaigns, using billboards or the like, to get the word out.

The Republicans’ Shameless War on Voting
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Justia columnist and former counsel to the president John Dean comments on current and past efforts by the Republican Party to suppress non-white Americans from voting in Southern states. Dean reports that these kinds of efforts have been escalating since 2010, and that they now encompass some Northern states as well. Dean covers specific, highly credible reports of such tactics being used; notes how voting laws can play into that underhanded effort; charges some Republican judges with being unwilling to enforce the amended Voting Rights Act of 1965 (VRA); and explains why these dirty tactics are a stain on the history of the Republican Party. Dean also notes his own role, in the Nixon Administration, in conveying Nixon’s decision not to veto a VRA extension that gave 18-year-olds the vote, and explains how that decision ultimately led, indirectly, to 18-year-olds getting the vote. Dean also notes that Mitt Romney could never make the same decision to let 18-year-olds vote today, as so many young people are Democrats or Independents. Finally, Dean cites a number of reasons for which we should all be thankful for the VRA.

The 2012 Democratic Party Platform: Religion, Women, and Children
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Justia columnist and Cardozo law professor Marci Hamilton continues her two-part series on the Republican and Democratic Party Platforms. In this column, she comments on the Democratic Party Platform, focusing—as she did with the Republican Party Platform—upon issues relating to religion, women, and children. More specifically, Hamilton discusses issues such as the government's relationship with faith-based organizations; same-sex marriage; contraception and abortion rights; foreign family-planning aid; and human trafficking. Hamilton also decries a key omission from the Democratic Party Platform: It fails to address the important issue of child sex abuse, except insofar as it mentions trafficking.

The 2012 Republican Party Platform: Religion, Women, and Children
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Justia columnist and Cardozo law professor Marci Hamilton begins her two-part series on the two major-party platforms by focusing, first, on the Republican Party Platform. (Her follow-up column on the Democratic Party Platform will appear here on Justia’s Verdict shortly.) Hamilton focuses especially on the following aspects of the Republican Party Platform: the Party’s attempt to paint gay activists—and not their foes—as the real haters; the Party’s extreme views on religion, including areas where the Party would allow one person to impose his or her religious views on another, when it comes to medical care; its embrace of having federal money go to religious organizations, but without their having to follow federal rules; its narrow view of women’s and children’s rights; and finally, its seeking rights for the unborn. Hamilton argues that, overall, women should not only oppose, but actually fear, this Platform.

The Significance of Blind Spots in Moral Reasoning
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Justia columnist and Cornell law professor Sherry Colb takes strong issue with a set of hypothetical scenarios that NYU professor Jonathan Haidt presents in his book, published earlier in 2012, The Righteous Mind: Why Good People Are Divided by Politics and Religion. While focusing on these moral dilemmas insofar as they affect humans, Colb argues, Haidt exposes his own blind spot with respect to the morality of eating animals. Colb then offers her own, fresh set of hypothetical moral dilemmas, in order to illustrate her contention that Haidt has not isolated all the pertinent questions and issues that his own moral hypotheticals raise. Even while considering the less significant issue of humans doing harmless but disgusting things to animals who are already dead, Colb notes, Haidt fails to consider the much more important issue of humans killing animals.

Costly Mistakes: Employers Ignore Workplace Harassment at their Peril, As the Recent Cases of New York State Assemblyman Vito Lopez and Chrysler Show
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Justia columnist and Hofstra law professor Joanna Grossman discusses two recent cases of workplace harassment, one at a New York Assemblyman’s office, and another at a Chrysler factory. She focuses, especially, on why, in both cases, the harassment was allowed to continue for significant periods of time, despite the fact that the relevant decisionmakers knew about it. Grossman also raises the related question of why the prospect of even whopping punitive damages awards did not seem to make a difference in these two cases, with the harassers still being allowed to continue their bad behavior, even in the face of potentially massive legal sanctions. She also discusses the lessons that other employers should learn, from these cases, so that they, too, do not go astray, and then have to pay handsomely in court.

Does the Diversity Justification for Affirmative Action (Mis)Use Minority Students? Reassessing the Supreme Court’s Decision in Grutter
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Justia columnist and U.C., Davis law professor Vikram David Amar considers whether one common justification for affirmative action in education—to allow white (and other) students to have a more diverse educational experience—is improperly using, instrumentalizing, and commodifying minority students. The challenge to this justification, Amar notes, has lately been the subject of academic commentary. Amar discusses the Supreme Court’s seminal Bakke case, which concerned affirmative action; the later Supreme Court Grutter and Gratz affirmative action decisions; and the upcoming Fisher case on the same topic. In addition, Amar explains three reasons why he isn't as concerned about the instrumentalization/commodification issue in affirmative action as some other law professors are.

The Unserious Mr. Ryan and the Idea-Free Mr. Gingrich: Understanding the Beltway’s Confusion of Mere Ideology With Actual Ideas
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Justia columnist, George Washington law professor, and economist Neil Buchanan takes strong issue with Republican Vice-Presidential candidate Paul Ryan’s reputation for being a “serious thinker.” Like Newt Gingrich before him, Buchanan contends, Ryan is being falsely sold to the public as an “idea guy,” when, in truth, he says, Ryan is simply repeating conservative cant. Ryan’s undeserved reputation, Buchanan argues, derives in part from moderates and liberals in the D.C. commentariat who are playing along with the Ryan myth, and in part from the reality that only conservatives play what Buchanan calls “the ideology game.” Buchanan predicts, accordingly, that Ryan—like Gingrich before him—will eventually prove to disappoint even those who once showered him with praise.

Are We Our Co-Jurors’ Keepers? New Social-Media Jury Instructions Ask Jurors to Turn in Their Peers If They Break the Rules
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Justia columnist and U. Washington law professor Anita Ramasastry discusses the problem of jurors’ using social media to research—or even communicate with others about—the trials on which they serve. Ramasastry offers statistics and examples regarding the nature and frequency of the problem of juror social-media use, and discusses the new model jury instructions addressing this issue. She also covers some egregious instances of jury misconduct in this area, and considers whether instituting a new rule of peer policing by jurors, of other jurors’ social-media use, will turn out to be a good idea in the end. In particular, Ramasastry expresses considerable concern about the propriety of judges’ mandating peer-to-peer juror policing regarding social-media use, and thus potentially altering natural jury dynamics.

How Todd Akin’s Statements About Rape and Pregnancy Undercut the Pro-Life Movement’s Efforts to Sell Itself as Pro-Woman
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Congressman and Senate candidate Todd Akin’s comments about “legitimate rape,” in which he claimed that a woman who is raped is especially unlikely to get pregnant, are now notorious for being both offensive and factually wrong. In this column, Justia columnist and Cornell law professor Michael Dorf contends that—in addition to being highly inaccurate and offending many—Akin’s comments have also harmed the pro-life movement’s ability to present itself as pro-woman. Dorf notes that Akin’s “legitimate rape” phrase harkens back to old stereotypes claiming that women often made false rape claims, when we now know that is untrue. Ultimately, Dorf suggests, Akin’s comments may well have the greatest significance for the abortion debate, and Dorf explains why—examining the pro-life claim that women experience “abortion regret syndrome,” and considering whether the pro-life movement can, or should, be deemed pro-women, given certain facts about the movement.

Donald Langevoort: A Thoughtful Legal Thinker
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Justia columnist and former counsel to the president John Dean comments on the the work of legal scholar Donald Langevoort, a professor at the Georgetown University Law Center, specializing in business organizations and securities regulation, who uses cognitive psychology in his work in order to explain why attorneys at times have ethical lapses. Dean comments on various interesting aspects of Langevoort’s work, such as his explanation as to how lawyers can fail to see a problem that should have been obvious to them, and his work regarding the organizational and psychological factors that may influence lawyers’ perception and judgment. Dean also discusses a list of certain cognitive biases to which lawyers may fall prey.

Republican Vice Presidential Pick Paul Ryan, Limited Government, and Ryan’s Big Picture When It Comes to Policy
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Justia columnist and Cardozo law professor Marci Hamilton comments on Romney running mate Paul Ryan—focusing on Ryan’s influences, such as Ayn Rand and the Catholic Church, and on his views, some of which, she suggests, parallel those of Ronald Reagan. She notes, though, that despite these influences, Ryan is also more than capable of thinking for himself—as he’s been involved in disagreements with the Church, as well. Hamilton praises Ryan’s small-government, balanced-budget views, and compliments him for being smart and well-read, but she also suggests that he is foolish to make his own religious beliefs part of the Romney/Ryan campaign, in light of America’s striking religious diversity.

Can Celebrities Successfully Sue to Keep Their Stolen Wedding Photos Private? The U.S. Court of Appeals for the Ninth Circuit Say Yes, in a Case Pitting Latin American Celebrities Against a Gossip Magazine
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Justia columnist and attorney Julie Hilden comments on a fair-use case that one judge on the Ninth Circuit panel compared to a telenovela. When a thief stole wedding and wedding-night photos from two Latin American celebrities that revealed that they were secretly married, and had been for several years, a gossip magazine published the photos. The two celebrities then registered their copyrights in the photos, and went to court to enforce them. The magazine, however, mounted a “fair use” defense, in order to try to avoid liability. Hilden describes and comments on the Ninth Circuit decision in the case, which sparked a dissent. Going through the four key fair-use factors one by one, the majority opinion suggests that the magazine has a steep uphill battle in proving fair use, as Hilden notes. Hilden also takes issue with the panel majority’s view that only “pictorial” photographs and those “factual” photographs that depict events should be protected, in this context. She argues that, to the contrary, even mechanical photo-booth photos ought to be protected in such situations.

Beware the Undissolved Civil Union: Massachusetts’ Highest Court Says That A Subsequent Marriage is Polygamy
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Justia columnist and Hofstra law professor Joanna Grossman discusses an interesting legal issue: If a person enters into a civil union with one person, and then later enters into a marriage with another, is he or she guilty of bigamy? The Massachusetts Supreme Judicial Court said yes, ruling that for this purpose, a civil union is tantamount to a marriage. Grossman sets out the background regarding the advent of civil unions in a number of states, and then explores the bigamy issue. She also notes that because the civil union is still a relatively a novel legal status, unforeseen problems have sprung up, such as the difficulty of getting courts to dissolve such unions—which has led some couples to be stuck in unhappy civil unions without recourse, and thus to simply walk away, with no legal termination of the union. When a member of such a couple then sought to marry, Grossman notes, the bigamy issue posed another thorny legal conundrum for the courts. To make things even more complicated, too, Grossman observes, some states do not recognize other states’ civil unions, and others do.

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