Verdict

Justia columnist Vikram David Amar and Justia guest columnist Alan Brownstein, both U.C., Davis law professors, comment on a recent Washington State controversy that raises the issue whether a pharmacy must provide the emergency contraceptive known as “Plan B” if the pharmacy’s owner objects to doing so, based on his or her own religious beliefs. (Such pharmacy owners believe that life begins at conception, meaning fertilization; Plan B prevents the implantation of a fertilized egg.) Amar and Brownstein note that the case is important and interesting not just in itself, but also because it illustrates many of the unanswered questions that concern the First Amendment’s Free Exercise Clause. The federal judge who heard the case ruled in favor of the pharmacy owners, but was he right to do so? Amar and Brownstein consider the arguments on both sides, focusing especially on the Supreme Court case of Church of Lukumi Babalu Aye v. Hialeah, in which a church sought to sacrifice animals in its rituals even though doing so was against the law. They also consider variations of the fact pattern in the Washington State case itself, and consider whether they might yield different results.

George Washington law professor and economist Neil Buchanan argues that the current debate about Social Security is dangerously misleading in several ways. Buchanan faults both parties for using inaccurate rhetoric: President Obama, he says, must stop acting as if Social Security is in peril, and both the President and Congress must stop using Social Security as a bargaining chip in negotiations with Republicans. In turn, and most importantly, Buchanan argues, Republicans must stop misrepresenting Social Security’s current financial situation as being dire, when that really is not the case. The best approach now, he argues, is to leave Social Security alone and focus on improving the economy. Buchanan also calls for an end to misleading estimates regarding in what year Social Security will be “bankrupt,” as they only scare and mislead the public. Finally, too, he warns that calls to “Act now to save Social Security” are often plans to weaken Social Security, in disguise.

Justia columnist and Cornell law professor Michael Dorf comments on what emerging democracies, and even America’s own long-established democracy, can learn from two recent rulings from the Supreme Constitutional Court of Egypt. As Dorf explains, the rulings, and the political context in which they arose, can teach us much about courts’ role in promoting democracy. He notes that the world has decisively opted for constitutional review, and the protection of individual rights, which are now a standard feature of established democracies around the globe. Dorf notes, however, that constitutional courts in emerging democracies not only must worry about the tyranny of the majority and the protection of individual rights, but must also be concerned that the government will fall prey to a military coup. In addition to commenting on Egypt’s situation, Dorf also cites Pakistan as another instructive example of the role of courts.

Justia columnist and U. Washington law professor Anita Ramasastry comments on the lessons to be learned from the recent experience of Skout, which initially offered teen and adult flirting sites and apps. In the wake of three separate allegations by teens of rape by an adult whom they met via Skout and who was posing as a teen on the site, Skout has closed down its teen site and app. Ramasastry notes that Skout was always vigilant about the risk of adults impersonating teens, but vigilance, in the end, wasn’t enough. Thus, Ramasastry raises the possibility that society—and especially teens’ parents—should discourage teen meet-up business models that carry the kind of risks that Skout’s teen site did.

Justia columnist and former counsel to the president John Dean does a Q&A with Ross Guberman, the author of the book Point Made: How to Write Like the Nation's Top Advocates (Oxford 2011). The interview covers how Guberman got into the teaching of legal writing and honed his skills in the field, the effect good writing can have on a case, and the methods and techniques that Guberman uses himself, and teaches others. Readers may be especially interested in Guberman's account of three mistakes that lawyers often make in drafting and presenting their arguments. Finally, Guberman previews his next book, which will comment on well-written judicial opinions.

Justia columnist and former counsel to the president John Dean comments on the “Watergate at 40” event, hosted by The Washington Post, that he attended this past Monday, June 11. The event was held in the Watergate Office Complex, where the infamous break-in at the Democratic National Committee (DNC) occurred. Dean describes the three panels at the event, which focused on (1) the investigation and cover-up; (2) Watergate’s legacy; and (3) Woodward and Bernstein’s role. In addition, the panel offered a tribute to Ben Bradlee, The Washington Post Executive Editor who played an instrumental role, along with Woodward and Bernstein, in breaking the story and placing a continuing spotlight on it, after government investigators had initially made some headway. Dean also relates an interesting anecdote regarding how the Watergate burglars turned off their Walkie-Talkies in the Complex to ensure silence, but as a result, were not alerted to the police's presence in the Complex.

Justia columnist and Cardozo law professor Marci Hamilton comments on recent revelations of alleged child sex abuse at New York private school Horace Mann, and discusses a number of legal measures that, she argues, can make it more likely that perpetrators of child sex abuse will be brought to justice. Noting the broad array of institutions that have harbored child sex abuse, Hamilton contends that this is a problem that urgently requires effective legal remedies. Among the legal reforms she supports are whistleblower-protection laws for those who report child sex abuse, penalties for failure to report abuse, and extensions of child- sex-abuse crimes’ statutes of limitations.

Justia columnist and Cornell law professor Michael Dorf discusses the Supreme Court’s decision in Elgin v. Dep’t of Commerce, which was just recently handed down. Dorf argues that the opinion, though not one of Term’s blockbusters, is still quite significant. That is, in part, because the decision may have implications for the U.S.’s controversial practice of using drone strikes to kill persons deemed to be U.S. enemies—including even U.S. citizens who are abroad. Moreover, Dorf notes that Elgin may have implications for the question whether the Obama Administration has been on firm legal ground when it has declined to enforce the Defense of Marriage Act (DOMA). In addition to these more practical implications of Elgin, Dorf contends that the decision may also be significant as a matter of constitutional theory regarding the respective roles of each of the branches of government.

Justia columnist and Hofstra law professor Joanna Grossman comments on two recent rulings that invalidate applications of a federal law—the Defense of Marriage Act (DOMA)—purporting to reject same-sex marriages. One ruling resolves a set of consolidated cases, and was issued by the U.S. Court of Appeals for the First Circuit. That ruling is entitled Commonwealth v. U.S. Department of Health and Human Services. The other ruling is Windsor v. U.S., a decision from a New York-based federal district court. After providing background on DOMA, Grossman analyzes the claims that were put forth in the cases that led to the two recent decisions, and argues that both courts were right to invalidate the applications of DOMA that were before them. She also discusses three U.S. Supreme Court precedents that are relevant to these issues.

Justia columnist and Cardozo law professor Marci Hamilton comments on the beginning of the trial of Jerry Sandusky, the former Penn State assistant football coach and Second Mile founder who is accused of having sexually molested numerous boys who trusted him. Hamilton describes yesterday’s testimony from the first alleged victim to testify in the case, who is known simply as Victim #4. Hamilton also explains why she believes Victim #4, noting that his testimony has featured a number of the indicia that typically have shown, in her experience, that alleged victims are telling the truth about having been abused. Hamilton also comments on the defense’s strategy, which invokes a psychiatric condition called Histrionic Personality Disorder, and, in her opinion, is highly unlikely to succeed.

Justia columnist and attorney Julie Hilden comments on a case in which an Atlanta teen, Alex Boston, is suing two of her classmates for libel, in connection with an instance of cyberbullying on Facebook. Hilden consider the pros and cons of using libel law to fight cyberbullying; suggests that there may be some weaknesses in Boston's case; and discusses the current legal uncertainty as to whether schools can punish off-campus speech that is related to the school, such as Facebook postings in which one student, or a group of students, bullies another student. With the Supreme Court so far silent on this issue, Boston and her parents invoked libel law, in lieu of a school punishment for the perpetrators. But Hilden questions whether, given the facts of the case, and given libel law's requirements, Boston's case can succeed. Hilden also provides some ideas for other teens who may seek to end the bullying that they suffer—including, if their parents do not support the filing of a lawsuit, and the case is extreme—possibly proceeding on their own with a guardian ad litem.

Justia columnist and Cardozo law professor Marci Hamilton comments on two child-sex-abuse trials related to two iconic Pennsylvania institutions: Penn State and the Philadelphia Roman Catholic Archdiocese. The upcoming Penn State-related trial arises out of widely reported allegations of child sex abuse by former assistant coach Jerry Sandusky, who served under Joe Paterno. The defendant in the ongoing trial relating to the Philadelphia Archdiocese is Monsignor William Lynn, who is charged with conspiracy and child endangerment. Hamilton’s report today comes after hearing testimony in the Lynn case. In addition to commenting on these two cases themselves, Hamilton makes a strong suggestion that Philadephia, home of both of the institutions involved in the scandals, should review its laws and practices regarding to allegations of child sex abuse, and should work toward the state’s now becoming a model when it comes to preventing and punishing child sex abuse.

Justia columnist and U.C. Davis law professor Vikram Amar takes issue with Stanford law professor Michael McConnell’s critique of the arguments of liberal law professors who defend the constitutionality of Obamacare. In a recent Wall Street Journal Op-Ed, McConnell took aim at such professors. In particular, McConnell argued that liberal law professors have failed to make “actual legal arguments, based on text, history, structure and precedent” to support Obamacare. Moreover, McConnell claimed that liberal law professors’ definition of judicial activism is one-sided—a charge that they only believe to be true when it applies to the conservative Justices. Amar counters McConnell’s arguments on both of these points, providing a very specific description of the constitutional-law basis for their view that Obamacare is constitutional.

In the second in a two-part series of columns, Justia columnist and Cornell law professor Sherry Colb continues her analysis of the constitutionality of the Texas law, enacted about a year ago, requiring abortion providers to (1) perform an ultrasound on a patient seeking an abortion; (2) expose the patient to the resulting visual ultrasound image, as well as any extant fetal heart sounds; and (3) provide an explanation of the embryo or fetus as pictured on the screen. Here, in Part Two, Colb continues to address the important question whether a law mandating ultrasounds, as the Texas law does, imposes a burden on women that is qualitatively different from the burdens that the U.S. Supreme Court has already approved in the context of abortion, which express a pro-childbirth value judgment. Colb also analyzes the abortion-related laws that the Court has struck down, and explains why. Moreover, she considers the relevance, here, of cases regarding unwanted speech and targeted picketing. Finally, Colb parallels the law with another context in which disturbing images may be shown, and if they are, the showing can be controversial: Animal Rights classes.

Justia columnist and U. Washington law professor Anita Ramasastry comments on the legal implications of Facebook’s reported plan to allow under-13 children to join the site. (Officially, under-13 children now cannot join, although that policy is often honored in the breach.) Ramasastry comments on why Facebook is now seeking out the under-13 crowd; notes the strictures of the Children’s Online Privacy Protection Act (COPPA) and how they may apply here; and describes how the Federal Trade Commission (FTC) has enforced COPPA against other websites in the past. Ramasastry also comments on some of the possible downsides of letting under-13 children officially join Facebook, if that becomes possible—including children’s immaturity when it comes to posting, and the ways in which Facebook may use children’s information, in part by marketing to them. She also raises the question whether Facebook users will truly want a Timeline that lasts a lifetime, or whether they may want to ignore or forget some of the indiscretions and immaturity of their youth. Finally, Ramasastry advises parents on measures they may want to take soon, before the new under-13 Facebook kicks in.

Justia columnist and Hunter College Human Rights Program Director Joanne Mariner comments on the situation endured by the more than a thousand prisoners who are held in solitary confinement, in tiny cells, in the Security House Unit (SHU) at California’s Pelican Bay State Prison—with about half serving terms of more than ten years, and some serving terms of more than twenty years. Mariner covers the Center for Constitutional Rights’s class action, filed just last week, challenging the SHU’s solitary confinement regime. She also conveys the Draconian punishment the prisoners suffer, deeming it a combination of sensory deprivation and social isolation, with only the most meager chance for exercise, and even phone calls such as those conveying the news of a death in the family allowed only at authorities’ discretion. Visitation, too, is harshly limited, as is mental health care. Mariner supports the CCR’s effort to challenge these and other practices—including the double-celling of prisoners in the tiniest of cells, and the highly questionable “prison gang validation” process that leads to incarceration at the SHU, as opposed to elsewhere in California’s prison system. Chances for parole, meanwhile, are slim to none. And while the UN has suggested abolishing indefinite solitary confinement, California still employs just such confinement at the SHU.

Justia columnist and former counsel to the president John Dean comments on a new proposed New York statute, the Internet Protection Act, which would provide a remedy for those who are the targets of anonymous Internet attacks—including the victims of cyberbullies, and businesses harmed by competitors’ fake reviews. Dean notes that the Act has drawn much criticism, but he argues that the focus of comments on the Act should not be to attack the Act, but rather to offer constructive criticism as to how the Act can be made consistent with the First Amendment. Dean summarizes the First Amendment arguments that have been raised regarding the Act; cites two key Supreme Court anonymous speech cases; notes that it is often possible to unmask cyberbullies without breaking the law, but it takes time and money to do so; and contends that a constitutional way to address cyberbullying would be through a law allowing the unmasking of the perpetrators of Internet harassment, and the issuance of a protective order against them. Even the deterrent effect of such a law, Dean predicts, could be powerful.

Justia columnist and Cardozo law professor Marci Hamilton comments on Notre Dame University’s and other Roman Catholic organizations’ recent suit against the federal government over federal executive regulations, promulgated through the Department of Health and Human Services (“HHS”), that require the University and the other organizations to include contraception, abortion, and sterilization in their healthcare plans. Hamilton focuses, in particular, on the federal court complaint filed by Notre Dame and the other plaintiffs, and the arguments they have made. Hamilton also describes a series of Supreme Court precedents in which various religious groups have failed to get exemptions from generally applicable laws, and argues that these precedents do not bode well for the plaintiffs’ success in this court challenge. Hamilton also discusses the role the Religious Freedom Restoration Act (RFRA) plays in the lawsuit.

In the first in a two-part series of columns, Justia columnist and Cornell law professor Sherry Colb considers the constitutionality of the Texas law, enacted about a year ago, requiring abortion providers to (1) perform an ultrasound on a patient seeking an abortion; (2) expose the patient to the resulting visual ultrasound image, as well as any extant fetal heart sounds; and (3) provide an explanation of the embryo or fetus as pictured on the screen. Colb focuses especially on the question whether a law mandating ultrasounds, as the Texas law does, imposes a burden on women that is qualitatively different from the burdens that the U.S. Supreme Court has already approved in the context of abortion, which express a pro-childbirth value judgment.

Justia columnist and Hofstra law professor Joanna Grossman comments on the Supreme Court’s recent family law decision in Astrue v. Capato. As Grossman explains, the case involved a woman’s becoming pregnant with her husband’s sperm—which he had had frozen—after he passed away. The legal question that the situation raised was whether the resulting posthumously conceived children would be deemed to be the husband’s children under the Social Security Act, for purposes of receiving child survivor’s benefits. As Grossman explains, the answer to this question will vary based on the law of the state. Grossman describes some of the complexities of modern parentage law, which derives mostly from state law, but also has federal law aspects. She also explains why the Court ruled as it did, deeming the children at issue not to count as the husband’s children for Social Security survivor’s purposes, and giving six rationales for reaching that result. Grossman also calls upon states to clarify the status of posthumously conceived children, rather than leaving them in legal limbo and out in the cold for Social Security survivor's benefits purposes.