Verdict

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.

Justia columnist and U.C. Davis law professor Vikram Amar comments on legal journalist Jeffrey Toobin’s recent article in The New Yorker regarding the highly controversial Citizens United case, holding that not just persons, but also corporations, have a First Amendment right to spend money to advocate for or against candidates for election. Amar respectfully raises questions about Toobin’s account of the case and how it was decided by the Court. In particular, he focuses on whether this was the rare case in which oral argument actually mattered to the case's outcome, as Toobin suggests.

Justia columnist, George Washington law professor, and economist Neil Buchanan takes on the arguments of those who have advocated for austerity as a solution for America’s and other countries’ still-struggling economies. First, Buchanan rebuts, in detail, the claim that government spending cuts will revitalize the economy by getting the government out of the way of the private sector. Then, he counters the argument that the reason austerity did not work was that it was never truly adopted in Ireland, the U.K., the U.S. or elsewhere. The only good news relating to austerity measures, Buchanan says, is that we have not yet seen governments “doubling down” on austerity by advocating even greater degrees of austerity, after the first austerity programs have failed to improve their economic situation—which would, he notes, be truly disastrous as well as inhumane.

Justia columnist and Hunter College Human Rights Program Director Joanne Mariner describes America's very slow progress toward ending prison rape. Mariner chronicles developments in this area from the 70s to today. She focuses especially on early empirical studies; a landmark 2001 Human Rights Watch Report; and the subsequent legislation the report helped trigger, The Prison Rape Elimination Act (PREA), which was passed in 2003. Mariner also notes that only last Thursday, May 17—nearly nine years after PREA’s passage—did the Justice Department finally issue the national standards on prison rape that PREA requires. Mariner describes in detail these important standards and their reach, and deems them to constitute a critical step forward, as Attorney General Holder has said.

Justia columnist and U. Washington law professor Anita Ramasastry comments on a recent First Amendment/Internet law ruling from a Utah-based federal judge. As Ramasastry explains, the ruling limited the scope of a a Utah law that (1) criminalized knowingly or intentionally disseminating harmful content to minors over the Internet, and (2) required website operators to tag or label such content in such a way that the tags or labels can be picked up by search engines. Ramasastry argues that the court struck the right balance by upholding but clarifying the first part of the law, and striking down the second part on First Amendment grounds. When it comes to screening content, she adds, the best solution is not a legal one. The better solution is, she argues, for parents to select screening software if they so choose; and for parents to have a serious talk with their kids to prepare them to deal psychologically with the kind of explicit material that they are likely to see, one way or another, even if parents do install screening software on all home computers.

With the huge JPMorgan Chase trading loss receiving much coverage in the news lately, Justia columnist and Cornell law professor Michael Dorf argues that the loss is evidence that conservatives’ laissez-faire approach to the market is untenable. Dorf begins by explaining how the JPMorgan Chase loss occurred and why some think a regulation called the Volcker Rule would have preempted the loss, had it been in effect, while others disagree. (That rule, Dorf notes, forbids banks from using depositor funds for speculative priority trading—in other words, for making their own bets—but also has an important exception.) Dorf also opines that the result of this year’s presidential election may well affect the Volcker Rule, with a possible future President Obama welcoming the Rule, and a possible future President Romney junking it, as he has suggested he will do. Dorf also expresses concern about the possible results if Romney is elected and the Rule and related regulations do not go into effect.

Justia columnist and former counsel to the president John Dean comments on a criminal case in which he argues that a deeply unjust sentence was handed down. Dean contends that it is high time for presidential clemency for the prisoner, Clarence Aaron, especially as the record shows that the Pardon Attorney gave President George W. Bush’s staff inaccurate and incomplete information in the case. As Dean explains, drawing on reporting by The Washington Post and ProPublica, Aaron—a 23-year-old first-time offender at the time of his arrest—was convicted for his role in abetting a non-violent drug deal. Dean notes that other participants in the deal had made careers in the drug business, and received light sentences in exchange for pointing the finger at Aaron, who received three life sentences. Their testimony has, since then, been shown and admitted to be false, yet Aaron still languishes in jail. Especially now that Aaron has the support of the relevant U.S. Attorney, Deborah Rhodes, and the sentencing judge, Dean contends that it is high time that Aaron receives a pardon.

Justia columnist and Cardozo law professor Marci Hamilton comments on recent events regarding the Philadelphia Archdiocese and clergy child sex abuse. She praises former Philadelphia D.A. Lynne Abraham and current Philadelphia D.A. Seth Williams for their courage and hard work in pursuing the matter, and establishing not only crimes, but also a cover-up. Hamilton notes that the trial of Msgr. William Lynn, who is charged with suppressing the identities of priest perpetrators, marks the first time a member of the Catholic Church’s hierarchy has been put on trial. Despite Pennsylvania’s short statute of limitations for child sex abuse, Hamilton explains, the prosecutors still found a way to make their case—finding two victims whose claims still fit within the statute of limitations, and successfully admitting evidence about 22 other victims whose claims are time-barred at trial. Hamilton faults the Philadelphia Archdiocese not just for the underlying crimes that are alleged, but also for the deficits of its own private investigation, which she argues has re-victimized the victims, given the insensitive way in which it has been conducted.

Justia columnist and Cornell law professor Sherry Colb comments on “ag-gag” laws, which prohibit people from gaining entry into, or employment in, an agricultural production facility, including an animal agriculture facility, under false pretenses. Colb notes that Iowa recently passed such a law, and that North Dakota, Montana, and Kansas also have such laws. Colb argues that the laws are aimed at concealing the true facts about how animals are treated in such facilities, because of the fear that if consumers knew the truth of the cruelty that is perpetrated there, they might change their eating habits. Supporters of that view see those who enter these facilities knowing they will convey information about them to the outside world as undercover reporters and whistleblowers, while the animal industries see them merely as trespassers. Colb details ways in which consumers are misled or misinformed about animal agriculture, suggesting that there is a need for undercover reportage so that the truth can be known. For instance, she explains how milk production entails slaughter, contrary to popular opinion, and not just on factory farms. Colb questions, though, whether consumers really want to know a truth that could complicate their lives with new ethical questions leading to possible dietary changes, and whether if consumers do learn that truth, they will really change their behavior. Colb also examines why humans may not feel empathy for animals, citing the coping strategies that often accompany humans’ acceptance of systematic violence, including violence toward other humans.

Justia columnist and Hofstra law professor Joanna Grossman comments on a recent important decision from the Connecticut Supreme Court. As Grossman explains, the case arose when a manufacturing company failed to take action to stop the ceaseless name-calling that the plaintiff endured in his workplace regarding his sexual orientation. Even worse than the slurs themselves, some of the plaintiff’s tormentors would say the slurs while standing right behind the plaintiff while he was operating heavy machinery. Grossman begins by sketching the legal landscape (federal and state) regarding sexual orientation discrimination, and then goes on to focus on the law of Connecticut, where the employer was located, and the result the Connecticut Supreme Court reached in the case. Grossman also questions why the employer took the case all the way up to Connecticut’s high court when the illegality of the acts involved was quite clear.

Justia columnist and attorney Julie Hilden comments on a recent decision from an Eastern District of Virginia federal judge, who effectively held that the use of the “Like” icon on Facebook is not protected by the First Amendment. The case arose when the employees of a sheriff who was up for re-election decided to “Like” his opponent’s Facebook page. Once the sheriff was re-elected, he fired those employees (as well as others). But the fired employees who had used the “Like” icon sued, arguing that the sheriff had illegally fired them for the exercise of their First Amendment rights. Hilden takes issue with both the judge’s decision to rule against the fired employees, and his approach to the case, which caused him to refuse to interpret what the Facebook “Likes” meant. Citing Supreme Court precedent, Hilden notes that the High Court has often protected and interpreted symbolic speech, and that the Court, in the recent case of Morse v. Frederick, has interpreted the meaning of ambiguous speech as well. She thus concludes that the judge should have both interpreted the “Likes,” and also held that they were First Amendment-protected.

Justia columnist and U.C. Davis law professor Vikram Amar comments on the results of a recent survey conducted by the Pew Research Center, regarding the percentage of adult Americans who hold a favorable view of the Supreme Court. Amar notes that the current percentage is 52%, a 25-year low. After describing the details of the Pew Survey, Amar considers the possible reasons for this low rating, suggesting that factors that may play a role include (1) The perception that the Court is no better than Congress (which gets low favorability ratings and is, obviously, partisan); (2) The impressions of the Justices that have been conveyed by some recent confirmation processes, particularly when nominees have made embarrassing gaffes that were ceaselessly repeated in the media, or have constantly avoided questions about the law; and (3) Republicans’ displeasure with the Court on social-issues cases, despite the Court’s conservative track record in its cases generally—and in certain blockbuster cases—over the last dozen years, in combination with what seems to be the advent of a more radicalized Republican Party.

Justia columnist and Hofstra law professor Joanna Grossman comments upon the proposed Pregnant Workers’ Fairness Act (PWFA), which was recently introduced in the House of Representatives. Grossman explains that, if the bill becomes law, it will guarantee pregnant women the right to reasonable accommodation when the short-term physical effects of pregnancy conflict with the demands of their job, as long as the accommodation does not impose an undue hardship on the employer. Grossman explains the limited protections that federal law currently offers pregnant women, how even those protections have been narrowed by courts, and why further protections are needed. Grossman describes the holdings of relevant Supreme Court cases, explains the provisions of the 1978 Pregnancy Discrimination Act (PDA), and argues that the PDA’s protections are markedly insufficient, especially in light of the courts’ narrowing of pregnant women’s rights. Grossman concludes that the passage of the PWFA is urgently needed to ensure fair treatment for pregnant workers.

Justia columnist, George Washington law professor, and economist Neil Buchanan continues his series of columns commenting on what a Mitt Romney presidency would look like from an economic point of view. In this column, the second in the series, Buchanan considers what the roles of the House and Senate would be in setting economic policy in a possible Romney presidency; describes the role that House Budget Committee Chair Paul Ryan, of Wisconsin, would be likely to play; and postulates that, in a Romney presidency, America would see the imposition of austerity measures similar to those that we are now seeing in Europe, as well as the diminution of much of the federal government, with potentially disastrous consequences. Overall, Buchanan argues that a Romney presidency would only make America's current economic predicament much, much worse.