Justia columnist and Hofstra law professor Joanna Grossman comments on the Herman Cain sexual harassment scandal from a legal, rather than political, point of view—based on what is known so far, and on Cain’s own comments regarding sexual harassment. Grossman recalls Cain’s negative remarks about the Civil Rights Act of 1991, which strengthened discrimination law, and she explains in detail how discrimination law, and sexual harassment law in particular, have improved the situation of women in the ensuing years. She also takes issue with Cain’s suggestion that speaking to someone cannot be sexual harassment—pointing out that if the words that are spoken connect job benefits with sexual favor, speaking them is the very epitome of sexual harassment. In addition, Grossman notes that harassment by someone who is the head of a company, as Cain has been, triggers different and harsher rules and heightens the risk to the company. Finally, Grossman questions Cain’s claims that he was adept at line-drawing in this difficult legal area, and may only have had a problem with “over-complimenting” women. She notes, too, that the law sees things not from the point of view of the alleged harasser, but of the victim and of a reasonable person in the victim’s place. Worst of all, Grossman, argues, is Cain’s contention that the claims against him were fabricated; fabrications, she points out, are extremely rare in this area of law, making the multiple claims against Cain especially damning.
Justia columnist and U.C. Davis law professor Vikram David Amar comments on an interesting case about affirmative action, in which U.S. Supreme Court review is being sought. As he explains, the case asks the question whether a rejected applicant who challenges an affirmative-action program as unconstitutional must prove that, without the affirmative-action program, he or she would have been admitted. Focusing on two key prior Supreme Court cases, Amar notes that there is another possible standard to be applied here—one under which the applicant would not need to show that he or she would have been admitted under the program, but would simply need to assert that he or she had applied, and thus that he or she had been harmed by being considered under an unconstitutional set of rules. Carefully parsing the Court’s precedents, Amar considers whether ambiguous prior decisions are best seen as involving substantive or jurisdictional issues.
Justia columnist and Hunter Human Rights Program Director Joanne Mariner comments upon the return of military commissions, which she describes as the latest in a string of victories for congressional Republicans who seek to bring back Bush-era “war on terror” policies—while seeking not only to keep Guantanamo open, but also to increase the number of persons detained there. Mariner argues that the Obama Administration ought to fight hard against such compromises of rights, but notes that it is not clear yet whether the Administration will take that stance. As Mariner explains, the test case here, which may signal the Administration’s future approach, is that of Lebanese citizen and alleged Hezbollah commander Ali Mussa Daqduq, who has been detained for crimes against U.S. military personnel in Iraq. Mariner contends that the federal courts, not military commissions, are the proper place to try terrorism suspects—with a strong record, under which (1) not a single genuine terrorist escaped conviction, and (2) the federal courts’ sentences generally proved to be longer than the military commissions' sentences.
Justia columnist and former counsel to the president John W. Dean comments on the tenth anniversary of the 9/11 attacks, with a special emphasis on the legacy of the attacks for American law. Dean begins by assessing how foreign media sources—whose perspectives, he explains, may be somewhat more detached than Americans’, yet who often interviewed Americans as sources—see the anniversary of 9/11. In addition, Dean contends that, where American law is concerned, the legacy of 9/11 is a baleful one. In support of his claim, Dean points to a post-9/11 proliferation of laws (some with sunset provisions, some without) that, he contends, go beyond all previous limits of constitutional propriety. Dean focuses in particular on the Patriot Act, and the infamous torture memo. All told, Dean concludes, the fallout of the 9/11 attacks has had a highly negative impact on American law.
Justia columnist and U.C. Davis law professor Vikram David Amar comments on an affirmative action decision from the U.S. Court of Appeals for the Fifth Circuit in which the Supreme Court may well grant review. Amar explains why, if the High Court does indeed take the case, its decision may substantially alter constitutional law relating to affirmative action in the context of educational admissions. In addition, Amar notes that this case, if taken up by the Court, may illustrate the very considerable power that Justice Anthony Kennedy now wields. Amar also provides thorough background to allow the reader to put this case, and the issues it raises, in the context of prior precedents relating to affirmative action in admissions, such as Bakke, Hopwood, Grutter, and Gratz.
Guest columnist and Justia editor David S. Kemp comments on a recent decision from the U.S. Court of Appeals for the Seventh Circuit, which permitted two American citizens to sue several U.S. military officials and former Secretary of Defense Donald Rumsfeld for violating their constitutional rights. In that case, the plaintiffs alleged that Rumsfeld authorized the officials to detain and torture them for several months in Iraq, and that they were subsequently released without being charged with any crime. Kemp covers the three essential questions that had to be answered before the suit could proceed; explains the nature of Bivens claims, through which a plaintiff can bring suit against federal officials (such as, here, Rumsfeld) by proceeding directly under a particular constitutional provision; and describes the two-part test federal courts use to decide whether a Bivens claim will be recognized.
Justia columnist Joanne Mariner, an attorney and the head of Hunter College’s Human Rights Program, comments on the memoir of David Hicks, an Australian who was incarcerated at the United States’ Guantanamo Bay detention facility for five-and-a-half years. Mariner notes that Hicks’s Guantanamo memoir is now one of many such works that detail interrogation practices and detention conditions at the facility. She also points out the book has recently made headlines due to the Australian government’s attempt to confiscate the royalties Hicks earned from his publisher, citing Australia’s Proceeds of Crime Act. Mariner notes the parallel between that Act and the United States’ “Son of Sam” laws, which the U.S. Supreme Court has occasionally held to be in violation of the First Amendment, and she explains other troubling aspects of the attempt to apply Australia’s Act to Hicks.
Justia columnist and Cornell law professor Sherry Colb contends that laws broadly preventing certain mentally ill persons from possessing firearms may not be as obviously a good idea as they might seem at first glance. Currently, Colb explains, there is a federal law—passed in the wake of the Virginia Tech shootings—to simplify the identification and tracking of persons who have previously been committed to a mental hospital, and who have therefore been divested of their right to possess firearms; those rights, though, can later be restored. Interestingly, though, Colb notes that in other contexts, members of certain groups (such as men) may be statistically far more likely than their counterparts (such as women) to commit gun violence, and yet, are allowed to carry guns nonetheless. Colb also points out that certain types of mental illness, which might lead to commitment to a mental hospital, are not connected to gun violence at all, yet still are swept in by the law.
Justia columnist and Hofstra law professor Joanna Grossman continues her two-part series of columns critiquing the Defense of Marriage Act (DOMA)—which was recently the subject of Senate Judiciary Committee hearings. As Grossman notes, a bill is now pending that would reverse DOMA to the extent that DOMA defines marriage, for federal law purposes, as a union between one man and one woman. She describes the varied, pending litigation related to DOMA, and considers some of the reasons DOMA has garnered complaint and opposition: Critics say it imposes unfair disadvantages on married gay couples, and many have observed that DOMA has spawned a bureaucratic nightmare.
In the first in a two-part series of columns about the Defense of Marriage Act (“DOMA”), Justia columnist and Hofstra law professor Joanna Grossman comments on the origins of DOMA; the reason DOMA did not have any practical implications until 2004; and why, even now, Section Two of DOMA has had no real effect. In Part Two of the series, Grossman will go on to consider Section Three of DOMA, which has had serious real-life implications, for it says that same-sex marriages cannot be recognized for any federal purpose.
Justia columnist and U.C. Davis law professor Vikram David Amar completes his two-part series of columns on two key decisions from the U.S. Court of Appeals for the Sixth Circuit. His last column focused on the Circuit’s Obamacare ruling; this one focuses on the Circuit’s ruling on an issue relating to affirmative action. Amar describes two different lines of Supreme Court precedent that offer different ways of analyzing affirmative action cases, and considers the possibility that the Court will take the opportunity—by reviewing this or another lower-court decision—to clean up apparent tensions between these two lines of High Court cases.
Justia columnist and Hofstra law professor Joanna Grossman covers the bigamy case that may soon arise from the reality TV show Sister Wives. As Grossman explains, the family at issue consists of a man, his four wives (one via legal marriage, and three via “spiritual marriage”) and his sixteen children and stepchildren. The family fled from Utah to Nevada to evade possible bigamy charges from Utah authorities. Grossman contrasts the bigamy laws of the two states, and considers whether the Supreme Court precedent of Lawrence v. Texas—the 2003 case where the Supreme Court held that the constitutional right of privacy includes a right of adults to enter into consensual, intimate relationships without interference from the state—protects bigamists.
Justia columnist and U.C., Davis law professor Vikram Amar begins a two-part series on two important recent rulings by the U.S. Court of Appeals for the Sixth Circuit, both of which may end up before the Supreme Court. In this first column, Amar comments on the Sixth Circuit ruling that upheld Obamacare—citing a number of factors that make the decision noteworthy. These factors include a conservative judge's vote to uphold Obamacare; that same judge's use of broad reasoning in doing so; the fact that the dissenter was a district court judge; the decision's timing; and the arguments the two judges in the majority could have made, but declined to make, in support of the statute.
Justia columnist and Hofstra law professor Joanna Grossman comments on the New York same-sex marriage law that was passed last Friday, June 24. She explains the details of the statute, and explains the legal context for, and ramifications of, this development -- both in New York State and nationally. Grossman also analyzes the exemptions that the law grants to religious institutions with respect to same-sex marriage, and notes that the provision of the new law that states that if part of the law is invalidated, the whole law is invalidated, makes challenges to the law especially perilous.