Verdict

In Part One in a two-part series of columns, Justia columnist and Cornell law professor Sherry Colb comments on 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.” As Colb explains, Fields sets forth the law regarding Miranda in the context of the interrogation of persons who are already incarcerated. In this column, Colb explains the facts and outcomes of the prior Supreme Court Miranda precedents that proved relevant in Fields. In both parts of the series, she takes strong issue with the Court’s reasoning in the Fields decision—in part because she argues that the Court has a very unrealistic view of the realities of prison.

Justia columnist and Hofstra law professor Joanna Grossman comments on the law regarding public breastfeeding. She covers both of the potentially applicable types of laws: indecent exposure laws, and public accommodations laws. In addition, Grossman discusses a key New York decision regarding toplessness more generally; a decision based on a Wal-Mart employee’s telling a customer that she needed to either breastfeed her son in the bathroom, or leave the store; a decision based on a mother’s refusal to put a blanket over her baby’s head when she was breastfeeding on a Delta airplane, as it was waiting at the gate; and a Vermont law that establishes the right, in that state, to publicly breastfeed. In addition, Grossman notes the changing social mores regarding breastfeeding—illustrated by protests called “nurse-ins” that are often sparked, with the help of social media, when a woman’s attempt to breastfeed in public is shut down.

Guest columnist and Justia editor David Kemp comments on a recent decision by the U.S. Court of Appeals for the Eleventh Circuit, which held that the Fourteenth Amendment of the federal Constitution protects transgender government employees from discrimination on the basis of their transgender identity, as part of its protection from discrimination based on gender. Kemp notes that the Fourteenth Amendment was implicated because the plaintiff’s employer—which fired her when she explained to her boss that she planned to transition from male to female—was a government agency. As Kemp explains, the resulting decision was a precedent both for the illegality of a firing based on gender non-conformity, and for the proposition that a firing like the plaintiff's violates the federal Constitution’s Equal Protection Clause. Kemp also discusses the Supreme Court precedent of Price Waterhouse, which established that an employer cannot legally force an employee to conform to stereotypes associated with his or her gender, and the question of what level of scrutiny courts will apply to discrimination claims arising out of transgender status.

Justia columnist and U.C., Davis law professor Vikram David Amar continues his two-part series of columns on the Supreme Court and affirmative action. In this column, Amar cites ways in which both the liberal and the conservative Justices have seemed to fall short of being truly intellectually honest on affirmative action issues. Amar focuses especially on what methodology the Court should use in affirmative action cases, and whether some affirmative action cases should not have been decided by the Court at all. More specifically, Amar looks at the use of originalist methodology in affirmative action cases, and issues of standing in such cases. Finally, he comments on the Fisher case, which is now before the Court, and involves the University of Texas’s admissions system.

Justia columnist and Cardozo law professor Marci Hamilton comments on the recent attack on reproductive and privacy rights by GOP presidential candidates Rick Santorum and Mitt Romney. Hamilton notes that some state legislatures, such as those of Ohio and Utah, have also taken similar stances—with Arizona and Kansas very possibly following the trend. Hamilton questions the wisdom of these stances, in light of the fact that a sizable majority of the country is not opposed to contraception, and the fact that only with the support of independent and moderate voters could the GOP candidate possibly beat President Obama’s re-election bid. Hamilton also notes that there has been a substantial backlash against such measures, by female legislators who are registering their protest by introducing laws that would, for instance, make it harder for men to obtain Viagra, and regulate ejaculation except when it occurs in the context of conception. Vasectomies, too, have been the target of the female legislators’ efforts—which, of course, are not serious attempts at getting laws passed, but are very serious attempts to draw attention to what the legislators believe is a dangerous attack on women’s rights. Hamilton adds her own “modest proposals” to those of the female legislators, and warns that moving into this delicate and personal area may cost the GOP the presidential election and/or congressional seats.

Justia columnist and attorney Julie Hilden comments on the ongoing ratings fight regarding the film “Bully,” a documentary about kids and bullying that is scheduled to premiere March 30th. The producer and director of “Bully” are fighting for the film to get a PG-13, and not an R, rating, so that teenagers can see it. Hilden argues that films like “Bully”—documentaries where the true-life use of expletives or other explicit material is necessary to truly understand the film’s subject matter—should be excepted from the usual application of the MPAA ratings system. As other examples of film that should benefit from such an exception, Hilden cites the based-on-a-true story “Boys Don’t Cry” and the documentary “This Film Is Not Yet Rated.” Hilden also suggests that the MPAA should use a much broader pool of parents in determining what movies parents, in general, think are acceptable for their children to see.

Justia columnist and U. Washington law professor Anita Ramasastry comments on the “Kony2012” 30-minute video, which recently received over 75 million views on YouTube and film-sharing site Vimeo—with even the White House taking notice. As Ramasastry explains, the video is a profile of the brutal warlord Joseph Kony, leader of the Lord’s Resistance Army, who is wanted by the International Criminal Court for his war crimes. Kony, a native Ugandan, mounted a war against Uganda’s government, using tactics including the recruitment of child soldiers and the commission of atrocities. Ramasastry covers Kony’s crimes; notes the praise for, and criticism of, the “Kony2012” video; and concludes that, despite some drawbacks and criticisms, the “Kony2012” video has proven to be an effective way to exert pressure for justice to be done.

Justia columnist and Cornell law professor Michael Dorf comments on a recent Israeli Supreme Court decision that held that a law exempting ultra-Orthodox Jews from military service unconstitutionally denies equality of treatment to other Israelis, who either must serve in the military, or—if they are conscientious objectors—must perform alternative service. Dorf notes that the Israeli decision is not only interesting in its own right, but also sheds light on two questions that U.S. courts must frequently face: How should courts evaluate laws that confer special benefits on certain minorities within society? And, when should people and institutions be exempted from legal requirements based on religious objections? In particular, Dorf points out that the Israeli decision has interesting comparative-law implications for American debates about affirmative action, and about the granting of religious exemptions to otherwise-applicable laws.

Justia columnist and former counsel to the president John Dean discusses recent Watergate-related books and other writings, as we approach Watergate’s 40th anniversary. Dean makes the interesting observation that as more and more information is being released about Watergate, more writers are getting its history wrong, perhaps because of the difficulty of sifting through the massive record that now exists. Dean praises Mark Holland, however, as a sterling exception to that rule—noting that Holland’s book, which focuses on why Mark Felt became “Deep Throat,” shows an excellent command of the record, and indeed, casts light on a dark subject. In contrast, Dean notes that another respected journalist lacked the command of the record truly necessary to write accurately and insightfully about Watergate.

Justia columnist and Cardozo law professor Marci Hamilton comments on two significant threats to New York State’s children. Hamilton begins by noting the recent, tragic death of an infant from herpes. She notes that the infant likely contracted the disease from a mohel who performed “oral suction” on the infant after Orthodox Jewish ritual circumcision. (Oral suction is a controversial practice in the Jewish community, and has fallen out of favor with many. In ancient times, the practice was thought to contribute to hygiene, but as it was learned that it could spread disease, it was mostly abandoned. Those who still practice it typically employ a glass tube to avoid direct contact and disease transmission.) Noting that this is not the first such death to likely be associated with oral suction, Hamilton argues that this risky procedure should be banned, and notes that its religious nature provides no legal defense for those who follow the procedure. She also warns that not only the mohel, but also the parents, could be held responsible for the death, depending on what they knew about the procedure’s risks. In addition, Hamilton covers a second ongoing threat to the well-being of New York’s children: clergy child sex abuse. Hamilton contends that New York ought to follow the example of Philadelphia, when it comes to the reporting of clergy child abuse—for there, District Attorney Lynne Abraham eventually enabled justice to be done due to her grand jury investigation into the cover-up of abuse.

Justia columnist and Cornell law professor Sherry Colb comments on a recent practice that has made a larger number of compatible kidneys available to those who need them: the “donor chain.” As Colb explains, donor chains allow pairs of people—one person who is willing to donate a kidney, and another who is in need of a kidney (but not immunologically compatible with the intended donor)—to become links in a chain of such pairs, and thus to each receive compatible kidneys. Indeed, through such a chain, willing and compatible donors may be found for each would-be recipient on the chain. There is no question that these chains save lives, but Colb notes that many more lives would be saved if, in addition to allowing donor chains, we also allowed people to sell their kidneys to those who need them. Thus, she considers the rationales for banning kidney sales—while pointing out that people with one kidney typically live as long as those with two. In the end, Colb asks whether it really makes sense for federal law to allow donor chains, but not to allow kidney sales—using a hypothetical where the would-be kidney seller himself needs the money urgently to cover a loved one’s health care needs.

Justia columnist and Hofstra law professor Joanna Grossman comments on a recent decision by the U.S. District Court for the Northern District of California, holding that the Defense of Marriage Act (DOMA) is unconstitutional. (As readers may know, DOMA defines a marriage as a union between a man and a woman, for purposes of federal law and federal benefits.) The court also held that statutory classifications based on sexual orientation should trigger heightened scrutiny from reviewing courts, and that an anti-same-sex marriage law cannot survive such scrutiny. Grossman provides background on DOMA, and describes the current impact of, and court challenges to, DOMA’s anti-same-sex marriage section. She also describes federal legislative and executive challenges to DOMA, and recaps California’s complicated history regarding same-sex marriage. In addition, she focuses on the interesting question of what level of heightened scrutiny (intermediate, strict, or other) courts will apply when reviewing cases alleging sexual-orientation discrimination. Grossman predicts that whether by repeal, administrative undercut, or judicial invalidation, DOMA is on its way out.

Justia columnist and attorney Julie Hilden comments on a recent Louisiana federal district court decision striking down an extremely broad and vague law prohibiting registered sex offenders from accessing a large variety of websites. Hilden argues that the judge’s decision, which followed a bench trial, was plainly correct under First Amendment case law. Accordingly, she contends that Louisiana Governor Bobby Jindal is likely using the law, which he signed, and the decision, which he has vowed to appeal, for political purposes. Hilden also raises the questions whether any law restricting Internet access for ex-offenders could pass muster; if so, what it might look like; and whether individual websites’ policing themselves—or creating separate sections for adults and children—might be part of the solution.

In Part One in a two-part series of columns, Justia columnist and U.C., Davis law professor Vikram Amar comments on the Supreme Court and affirmative action—a timely subject due to the Court's recent grant of review in the case of Fisher v. University of Texas, which involves affirmative action in college admissions. Amar contends that, when it comes to this explosive issue, the two wings of the Court have both engaged in intellectual dishonesty, and he details how the Justices adopted their current distrust: Amar charges the Court's liberals with an unwillingness to apply meaningful strict, or even intermediate, scrutiny to race-based programs; charges its conservatives with the unfair treatment of remedial rationales; and takes issue with some Justices' treatment of history and precedent. Amar's analysis includes some shockingly out-of-context quotes that Justices, over time, have used to try to make their points in this highly controversial area.

George Washington law professor and economist Neil Buchanan comments on the financial relationship between U.S. and China—which he argues is far from as problematic as some claim. Buchanan covers the issues that have been raised regarding China’s holding U.S. debt; argues that the mutual China/U.S. dependence is ultimately healthy; discusses a possible worry on China’s part that the U.S. would accomplish a stealth repudiation of its debt through deliberate inflation, but deems that worry unrealistic; and considers whether the U.S. holds political power over China due to its holding our debt. Ultimately, Buchanan suggests, Americans should not be particularly concerned about the U.S.-China relationship, but should be quite concerned by the situation of the have-nots in both countries. Both governments, Buchanan concludes, need to ensure that the prosperity their country enjoys benefits not just the elites, but also the whole of society. While China is besting us in infrastructure improvements, he notes, it is not, at the same time, improving its citizen’s lives as it ought to. Yet the economic relationship between our two nations, he says, is sound.

Justia columnist and Hunter College Human Rights Program Director Joanne Mariner discusses two recent steps toward limiting the scope of the detention provisions of the National Defense Authorization Act (NDAA), the controversial, recently-passed federal statute regarding the military detention and trial of terrorist suspects. The first step was an Obama Administration policy directive that effectively negates an NDAA section that purports to require that non-citizens suspected of strong links to terrorism be held in military, not civilian, custody. The second step was the commencement of a Senate Judiciary Committee hearing on the Due Process Guarantee Act, which was introduced after the NDAA was enacted into law. As Mariner explains, the Due Process Guarantee Act would protect both citizens and lawful permanent residents arrested in the U.S. against being detained indefinitely under a military rationale. Moreover, the Act would set a baseline prohibition on indefinite military detention in such cases, allowing such detention to be used only when Congress explicitly provides for it. Mariner sees these steps as constituting progress, but contends that amending the NDAA itself would have been a better remedy—especially as a presidential directive can always be reversed by a future president.

Justia columnist and U. Washington law professor Anita Ramasastry considers the sometimes disturbing ways in which retailers—both brick-and-mortar or online—use consumer data. Beginning with a New York Times story that related how a father learned of his teenage daughter's pregnancy when Target started sending her baby-related coupons, Ramasastry suggests that regulation is necessary if consumer privacy is to be protected, and that such regulation probably should render certain areas of private information strictly off-limits. Ramasastry discusses the Obama Administration's proposed set of consumer-privacy principles, called the Consumer Privacy Bill of Rights, and notes that the Administration's stance is that if Congress will not enact such principles into law, then the FTC has the power to enforce them via regulation. Ramasastry also discusses what, specifically, such principles could mean for retailers like Target. Finally, Ramasastry discusses existing websites that can help consumers protect their online privacy.

Justia columnist and Cornell law professor Michael Dorf comments on the Supreme Court’s recent decision to review a case involving race-based affirmative action in higher education.  As Dorf explains, the Court has not resolved an affirmative-action case since 2003, and thus this new case will be especially closely watched.  Dorf discusses the affirmative action precedents that the Court has already handed down, including the famous Bakke case, and the University of Michigan cases, Gratz and Grutter—the impact of which, Dorf explains, has been modest.  The new case that the Court will review, Dorf explains, involves the University of Texas's admissions system—which offers admission to all Texas students who rank in the top ten percent of their high school class, and also adds consideration of race as one of a number of factors in admissions decisions.  Dorf describes the issues the Texas case raises, and predicts that the Court's opinions—on both sides—will necessarily lack candor, as both liberals and conservatives pay lip service to an ideal of colorblindness, but do not actually hew to that ideal.

Justia columnist and former counsel to the president John Dean comments on the imminent publication of a biography by David M. Dorsen of esteemed jurist Henry Friendly, Henry Friendly: Greatest Judge of His Era. As Dean explains, Judge Friendly served on the U.S. Court of Appeals for the Second Circuit from 1959-1986, and his decisionmaking drew the highest praise from fellow judges and Justices. Dean provides an overview of the biography’s coverage, and notes that its emphasis is not on what Friendly decided, but rather on his decisionmaking process. Dean contends that this work—the product of six years’ research and hundreds of interviews—is not to be missed by either the serious scholar or the general reader. (Dean notes, for full disclosure, that he is a friend of Dorsen’s, but also quotes high praise for the book from Judge Richard Posner and others.)

Justia columnist and Cardozo law professor Marci Hamilton comments on the recent hearings regarding contraception coverage for employees of religiously-affiliated institutions. Hamilton starts by going back to the time of the Framers, and noting their concerns about the potential abuse of power by legislators. In the context of the contraception-coverage debate, Hamilton argues, Congress is being overly influenced by religious and religiously-affiliated institutions’ lobbyists. Those lobbyists’ religious arguments, she contends, lack any constitutional or statutory basis, especially now that the Obama Administration has offered a compromise, under which the institutions would not have pay for their employees’ contraception coverage; insurance companies would pay instead. Hamilton parallels this fight with an earlier Congressional controversy, regarding RLUIPA, the Religious Land Use and Institutionalized Persons Act. She argues that there, too, religious institutions’ lobbyists sought—and gained—more for such institutions than could possibly be justified, because legislators capitulated when they should have held firm.