David S. Kemp

David S. Kemp

David S. Kemp is an attorney, writer, and editor at Justia. He received his B.A. in Psychology from Rice University and his J.D. from the University of California, Berkeley, School of Law (Boalt Hall).

During law school, Kemp served as a Teaching Assistant, Senior Executive Editor of the California Law Review, and co-Editor-in-Chief of the Berkeley Journal of African-American Law & Policy.

Kemp worked as a summer associate at Fulbright & Jaworski LLP in Dallas, Texas, and was an intern with the Lambda Legal Defense & Education Fund, Inc.

Kemp writes primarily on constitutional law and procedures, and medical ethics.

Columns by David S. Kemp

Comparing Two Federal Appellate Court Decisions on Same-Sex Marriage

Attorney David Kemp discusses the recent decision by the U.S. Court of Appeals for the Fourth Circuit striking down Virginia’s ban on same-sex marriage. He compares and contrasts that opinion to an opinion handed down last month by the Tenth Circuit striking down Utah’s equivalent law. Based on the majority and dissenting opinions, Kemp anticipates what might be the key issues if the case reaches the U.S. Supreme Court—an event that seems increasingly likely.

The Fair Use Doctrine Revisited: Part Two in a Three-Part Series of Columns

Justia columnist and attorney David Kemp continues his discussion of the fair use doctrine. In this second of a series of columns, Kemp describes the testimony presented by five witnesses at a House Judiciary Committee hearing last January. In the final column in this series, Kemp will explain his own perspective on fair use and argue that Congress should take steps to ensure it maintains its role as an instrument of creativity and innovation.

The Fair Use Doctrine Revisited: Part One in a Three-Part Series of Columns

In the first part of a three-part series of columns, Justia columnist and attorney David Kemp describes the fair use doctrine. Kemp outlines each of the four statutory factors courts consider when determining whether the use of a copyrighted work constitutes fair use. In the second column, Kemp will discuss the recent House hearing on the scope of fair use, and in a third and final column he will argue that, if anything, Congress should strengthen the doctrine to encourage innovation.

On Brain Death and Civil Rights

Justia columnist and attorney David Kemp discusses the tragic situation of Jahi McMath, the 13-year-old girl who was pronounced brain dead after surgery, and whose family sought to keep her on a ventilator despite that diagnosis. Kemp focuses on the federal civil rights lawsuit recently filed by the family. He argues that it is unlikely to succeed on the merits and that the family would be better advised to seek alternative means of answers and justice for their loss.

Ohio’s March Toward Marriage Equality

Justia columnist and attorney David Kemp discusses a recent ruling by a federal judge in Ohio striking down that state’s laws banning recognition of same-sex marriages validly performed in other states. Kemp describes the facts and legal reasoning of that case and explains how the ruling affects residents of Ohio and its potential implications outside that state. He predicts that although the scope of the ruling is quite narrow—affecting only death certificates for Ohio residents with same-sex surviving spouses—it strongly suggests an imminent change in that state and elsewhere in the country.

The Warrant Requirement for GPS Tracking Devices

Justia columnist and attorney David Kemp discusses a recent decision by the U.S. Court of Appeals for the Third Circuit requiring law enforcement officers to have a valid warrant before installing a GPS tracking device on a suspect’s vehicle. Kemp describes the facts of the case and the reasoning the court used to reach its decision. He argues that the court’s interpretation of the Fourth Amendment is not only correct, but also indicative of what is necessary to ensure that constitutional law keep up with the technology available to law enforcement.

Should the United Nations Be Liable for the Haiti Cholera Epidemic?

Justia columnist and attorney David Kemp discusses a recent federal lawsuit filed against the United Nations for allegedly causing a cholera epidemic in Haiti. Kemp discusses factors weighing for and against finding the U.N. liable for the epidemic in light of recent evidence all but establishing that U.N. peacekeepers introduced the deadly disease to the struggling country. Kemp notes that as a policy matter, the threat of lawsuits should not serve to discourage international humanitarian aid, but nor should aid organizations be immune from liability for gross misconduct. Ultimately, Kemp concludes that the optimal outcome would be a declaratory judgment against the U.N. but without an award of monetary damages.

When Can Administrative Claims Preclude Constitutional Claims?

Justia columnist and attorney David Kemp discusses a case argued before the U.S. Supreme Court on the first day of its 2013-2014 Term. That case, Madigan v. Levin, raises the question whether the Age Discrimination in Employment Act (ADEA) precludes age discrimination claims brought directly under the Equal Protection Clause. Kemp notes that the particular facts of the case and the tone of arguments at the Supreme Court suggest that the Court may not decide the case on the merits. However, he argues that the case does present important questions on the power of Congress to abrogate individuals’ right to sue for constitutional violations, and its duty to do so only when the statutory remedies are both adequate and broadly accessible.

Is Virginia the Next Major Same-Sex Marriage Battlefield?

Justia columnist and attorney David Kemp describes two recent lawsuits filed in Virginia challenging that state’s laws prohibiting same-sex marriages. Kemp describes the two cases, explains why Virginia is a favorable venue for such legal challenges, and notes the prevalence of other similar cases around the country. Kemp concludes that the existence of so many cases challenging discriminatory laws must be seen as a step in the right direction for same-sex marriage advocates.

A South Carolina Same-Sex Marriage Challenge, and Predictions as to the Outcome of Future Litigation in This Area

Justia columnist and attorney David Kemp discusses a recent case filed in federal court in South Carolina challenging the state’s prohibition on same-sex marriages. Kemp describes the facts and arguments of that case, Bradacs v. Haley, and compares it to another recent case filed in Ohio challenging that state’s own laws precluding recognition of same-sex marriages. Kemp notes one particular parallel between arguments in the two cases and predicts, based on this parallel, that we will see similar challenges in several other states with comparably structured domestic relations laws.

Why Leaker Chelsea Manning Should Receive Appropriate Medical Care in Prison

Justia columnist and attorney David Kemp discusses the request by government leaker Chelsea Manning, formerly Bradley Manning, that she receive hormone treatment while in military prison. Kemp discusses several decisions by federal courts, all of which have held that prisons are constitutionally required to provide transgender inmates with necessary medical care. He argues that as a matter of public policy and constitutional law, the military prison holding Manning should also provide her needed medical care.

The Imminent Demise of Section 2 of the Defense of Marriage Act

Justia columnist and attorney David Kemp discusses the recent grant of a temporary restraining order by a federal judge in Ohio, effectively suspending that state’s ban on recognition of out-of-state same-sex marriages. Kemp discusses the facts and reasoning behind the decision in that case, Obergefell v. Kasich. He then considers the background of Section 2 of the Defense of Marriage Act (DOMA). He concludes that although Obergefell does not expressly address DOMA, in practice it signals an imminent shift toward overturning the remaining section of that federal law.

A Case Against the Six-Person Jury for Serious Crimes

In light of debate surrounding the recent Zimmerman murder trial and its six-person jury, Justia columnist and attorney David Kemp discusses the U.S. Supreme Court’s jurisprudence on the size of juries in criminal trials. He describes the role of the jury as understood both by our nation’s founders and by the Supreme Court and explains how that understanding has changed over time. Kemp ultimately calls for a return to the traditional twelve-person criminal jury panel to advance both the appearance and reality of justice.

Doctors and Lawyers and Such: A Pediatric Lung Transplant Case Illustrates the Complex Relationship Between the Government and Medical Providers

Justia columnist and attorney David Kemp comments on a recent case in which a child received a much-needed pediatric lung transplant as the result of a federal lawsuit that triggered a policy change. He discusses the policy and the arguments the parents of the child put forth for changing it. He argues that the case illustrates a function relationship among experts, legislators, and judges—but only in ideal circumstances. He critiques the community of medical experts as failing to review and update policies to keep up with the latest scientific knowledge, particularly on such crucial issues like eligibility for donated organs.

Changing Our Attitudes Toward Health Policies

Justia columnist and attorney David Kemp discusses two recent issues that have come up in recent news related to health and health policy. The first issue Kemp discusses is that of breast cancer prevention and treatment, in light of a New York Times op-ed written by actress and director Angelina Jolie. The second issue is the recent and alarming outbreak of bacterial meningitis in New York City, particularly among gay and bisexual men. Kemp compares and contrasts the two issues, arguing that there is no place for moral approbation or judgment in the prevention and treatment of these diseases or any others.

Miranda’s Public Safety Exception: How It Does and Does Not Affect the Evidence Against the Boston Marathon Bombing Suspect

Justia columnist and attorney David Kemp discusses Miranda warnings and the proposed reliance on the “public safety” exception in the case of the suspected Boston Marathon bomber. Kemp first describes the Supreme Court’s seminal decision in Miranda v. Arizona, as well as the subsequently established public safety exception. Kemp cautions that despite the characterization by some authorities of the exception as a carte blanche to question criminal suspects in blatant disregard of their constitutional rights, the exception should be preserved as an evidentiary rule employed only by impartial courts, not by interrogating officers.

The Constitution and Punitive Damages: A Ten-Year Anniversary Discussion of State Farm v. Campbell

For the ten-year anniversary of the Supreme Court’s decision in State Farm v. Campbell, Justia columnist and attorney David Kemp provides an overview of the Court’s jurisprudence on the constitutionality of punitive damages in civil lawsuits. He first explains the role of punitive damages in civil lawsuits and then goes on to discuss nine major Supreme Court cases dealing with punitive damages in different manners. He predicts, based on the pattern of punitive damages cases that have come before the Court in years past, that the Court will hear another such case in the not-so-distant future.

Serving Foreign Defendants via Facebook: Is A New York-Based Federal District Court’s Decision a Sign of the Times?

Justia columnist and attorney David Kemp discusses a judge’s recent ruling that permitted the Federal Trade Commission to issue service of process on foreign defendants via email and Facebook. Kemp summarizes the facts of the case and the judge’s reasoning and provides a brief overview of the requirements of service of process. He argues that the ruling, while ostensibly narrow, may have broader implications for the use of Facebook in serving foreign defendants.

The Need for Discussion of End-of-Life Care Plans

Justia columnist and attorney David Kemp discusses a story that illustrates the need for every individual to clearly express his or her instructions for end-of-life care. He first considers why this particular story captured national audiences and then discusses what people should take away from the story. He argues that everyone should have an advance medical directive or similar document to guide friends and loved ones as to end-of-life wishes.