Analysis and Commentary on Constitutional Law
Why The U.S. Supreme Court Should Not Fear That Denying the Proposition 8 Sponsors Federal Standing Will Weaken The Initiative Device (And a Few Other Thoughts on the Oral Argument in Perry v. Hollingsworth)

Justia columnist and U.C., Davis law professor Vikram David Amar comments on the standing issues, as well as some other issues, that were discussed by the U.S. Supreme Court’s Justices in their recent oral argument regarding Proposition 8, the California measure that bans same-sex marriage. In particular, Amar discusses whether the proposition’s sponsors are the ones who should defend it in court, concluding that they are not. He adds, as well, that denying the sponsors standing will not weaken the initiative device. Moreover, Amar notes that state law could authorize sponsors to defend initiatives in the future, but the authorization must be done carefully, clearly, and in a way that is visible to voters. Amar also considers the possibility that the Proposition 8 case will ultimately be dismissed by the Supreme Court as having been improvidently granted.

Do People Under Arrest Have a Privacy Right in Their DNA? The U.S. Supreme Court Hears Argument in Maryland v. King Part Two in a Two-Part Series of Columns

In Part Two of a two-part series of columns on the Supreme Court case of Maryland v. King, Justia columnist and Cornell law professor Sherry Colb continues her analysis of the case, which raises questions about the Fourth Amendment significance of DNA collection from arrestees, in light of the government interests and privacy entitlements that are at stake when a person is taken into custody. Part One of this series appeared on March 20, here on Justia’s Verdict.

Do People Under Arrest Have a Privacy Right in Their DNA? The U.S. Supreme Court Hears Argument in Maryland v. King Part One in a Two-Part Series of Columns

In Part One in a two-part series of columns relating to the pending Supreme Court case Maryland v. King, Justia columnist and Cornell law professor Sherry Colb considers the Fourth Amendment significance of DNA collection from arrestees, in light of the government interests and privacy entitlements that are at stake when a person is taken into custody. Part Two of this series will appear next Wednesday, March 27.

Is Hawaii’s Steven Tyler Act Consistent With the First Amendment?

Justia columnist and attorney Julie Hilden comments on Hawaii’s Steven Tyler Act, which seeks to attract more celebrities to Hawaii by addressing the paparazzi problem for those celebrities who may want to vacation there—or have a house there, as well-known musician Steven Tyler does. Hilden contends that the Act raises two key First Amendment issues—one regarding failed attempts to photograph celebrities, and another regarding how much consideration should have to be exchanged to trigger a violation of the statute.

A Lawyer for All: The 50th Anniversary of Gideon v. Wainwright

Justia columnist Joanna Grossman and Justia guest columnist Leon Friedman, both Hofstra law professors, comment on the landmark Supreme Court case of Gideon v. Wainright, which established the right to an attorney for those who are facing felony charges, and who would not otherwise be able to afford a lawyer. The column is timely, as the Gideon precedent is now fifty years old. In their column, Grossman and Friedman describe the state of the law before the ruling in Gideon, note the arguments that persuaded the Court to declare a right of appointed counsel for those who could not afford counsel, and explain the meaning of the ruling.

A New Pope, A New Beginning for Clergy Child Sex Abuse Survivors? Why It’s Unlikely

Justia columnist and Cardozo law professor Marci Hamilton predicts that the new Pope, formerly the Archbishop of Buenos Aires, will be no more successful than his predecessor in effectively addressing the Catholic Church’s problem with clergy child sex abuse. In making her case, Hamilton cites the name the new Pope chose, Francis for St. Francis Xavier, not St. Francis of Assisi; and the fact that he is a Jesuit—and thus a member of an order that despite the respect it claims still has clergy child abuse problems and problems with related cover-ups. Hamilton also points out that Pope Francis—unlike Cardinal Oullet of Canada, another top contender—has not been an outspoken critic of clergy child abuse. For these and other reasons, Hamilton predicts that true reform in this area will only come from the legal system, not the Church.

Justice Scalia’s Long Campaign Against “Racial Entitlements” Takes an Unexpected Turn

Justia columnist and Cornell law professor Michael Dorf comments on Justice Scalia’s arguments regarding what Scalia calls “racial entitlements,” and the Voting Rights Act. As Dorf notes, these issues came up during the oral argument in the case of Shelby County v. Holder. Moreover, Dorf notes, Scalia had earlier raised these arguments both when he was a law professor, and repeatedly in his opinions on the Court. But, Dorf points out, Scalia’s references in the past appeared in affirmative action cases, whereas this reference appeared in his discussion of Section 5 of the Voting Rights Act, which is not an affirmative action provision; rather it deals with election rules in jurisdiction with a history of discriminatory voting rules. Dorf questions whether Scalia’s extension of his own “racial entitlements” logic is valid in this context.

Is Veganism a Religion Under Anti-Discrimination Law? An Ohio Federal District Court Says Perhaps

Justia columnist and Cornell law professor Sherry Colb comments on a discrimination case in which the Cincinnati Children’s Hospital Medical Center fired a Customer Service Representative, Sakile S. Chenzira, for refusing to get a seasonal flu vaccine, in contravention of hospital policy. Chenzira refused the vaccine because she is a vegan and the vaccine is produced in chicken eggs. After her firing, Chenzira went to federal district court, arguing that her firing violated her right to be free of religious discrimination. The court denied the hospital’s motion to dismiss the case, and decided to hear the evidence. Colb describes in detail what it means to be a vegan, and explains why, for some vegans, the decision whether or not to be vaccinated is a difficult one. She also discusses when, under federal law, a belief system counts as a religion, noting that veganism ought to qualify under that definition. Colb also offers a prediction as to the likely outcome of Ms. Chenzira’s case.

Can California’s Anti-Paparazzi Statute Survive a First Amendment Challenge?

Justia columnist and attorney Julie Hilden comments on the first case invoking the 2010 California anti-paparazzi statute. The paparazzo at issue had mounted a high-speed chase following Justin Bieber, which fell within the statute’s prohibitions; he was then charged not only with reckless driving, but also with an offense under the anti-paparazzi statute. But does that statute violate the First Amendment? Hilden explains why it might be thought to. Notably, if the statute is upheld, Hilden suggests that it may substantially change the cat-and-mouse games that paparazzi play with the celebrities whom they seek to photograph.

Is Obama’s Policy of Targeted Killings Really Worse than Bush’s Torture Policy?

Justia columnist and Cornell law professor Michael Dorf contrasts Obama’s policy of targeted killings of persons believed to be leaders of al Q’aeda, with George W. Bush’s prior policy of authorization of the use of torture. The issue is timely in the wake of the release of an Obama Administration white paper on the targeted-killing issue. Dorf notes that the Administration is drawing criticism from both the right and the left on that issue. Dorf argues that the Administration is right to seek to craft a policy that complies with both the U.S. Constitution and the international law of war. He also examines the views of controversial conservative law professor John Yoo on which is worse: the Obama Administration’s targeted killing policy, or the Bush Administration’s torture policy. Dorf also looks at such questions from the point of view of not just law, but also morality.

The Federal Trade Commission Takes Aim at Mobile App Privacy: Why It’s About Time

Justia columnist and U. Washington law professor Anita Ramasastry comments on the FTC’s recent focus on privacy protections for mobile applications, and how key players in the rapidly-expanding mobile marketplace can better inform consumers about their data collection and use practices. Ramasastry also discusses the recent FTC enforcement action that led to a settlement with Path, a mobile social network, relating to its mobile privacy practices. Path lets users keep online journals that can be shared with a limited group of family and friends. The FTC fined Path $800,000, charging the company with violating federal statutory privacy protections for children by collecting personal information on underage users. Ramasastry deems the FTC’s scrutiny of mobile apps to be appropriate and timely right now, as more and more Americans rely heavily on mobile devices.

Hurricane Sandy Disaster Relief for Houses of Worship: Why the Establishment Clause Forbids this Most Recent Attempt by Religious Lobbyists to Obtain Government Support and Funding

Justia columnist and Cardozo law professor Marci Hamilton argues that Hurricane Sandy disaster relief cannot constitutionally be extended to religious institutions, and notes that such relief was not extended to houses of worship in prior, similar situations. She also contends that religious institutions should go back to their days of eschewing government funding entirely. Accordingly, Hamilton opposes the Federal Disaster Assistance Non-Profit Fairness Act, and notes that the church/state entanglement issues that will arise if the government is involved in funding the rebuilding of a damaged house of worship.

The Minnesota Supreme Court Rules for the Defendant in a Suit Alleging Online Defamation

Justia columnist and attorney Julie Hilden comments on a case of online defamation, in which a doctor sued a patient’s son for the son’s harsh online reviews regarding the doctor’s care of the patient's father. The Minnesota Supreme Court ruled that none of the statements in the son’s reviews could be sued upon, either because they were substantially true, because they were not capable of defamatory meaning, or because, in one case, the statement at issue was a statement of pure opinion. Hilden explains why the online-review-writer prevailed here, and notes some other reasons why online reviews may or may not successfully be sued upon.

The Supreme Court Takes on A Case Regarding “Arising Under” Jurisdiction: A Prediction as to How the Court Will Resolve Gunn v. Minton

Rodger Citron, a professor of Law at Touro Law Center in Central Islip, New York, comments on an upcoming Supreme Court case regarding “arising under” jurisdiction, a phrase that the Constitution and a number of federal statutes employ to authorize a party to assert a claim based upon federal law in federal court—and also, in limited circumstances, when a claim is based upon state law but cannot be decided without determining an issue of federal law. Citron discusses not only the concept of “arising under” jurisdiction, but also the Court's recent oral argument involving that concept.

Does BLAG Have Standing in the Defense of Marriage Act (DOMA) Case in Front of the Supreme Court?

Justia columnist and U.C., Davis law professor Vikram David Amar discusses the question whether BLAG, the Bipartisan Legal Advisory Group of the House of Representatives, has standing in the same-sex marriage cases now before the Supreme Court. Amar details the argument made by professor Vicki Jackson, who was appointed by the Supreme Court to brief questions as to whether BLAG has standing, and also whether the case is justiciable. Amar notes the role of the key precedent of INS v. Chadha, which concerned a legislative veto, and other important precedents that may prove significant to the Court.

Salinas v. Texas in the U.S. Supreme Court: Does the Fifth Amendment Protect the Right to Remain Silent?

In Part Two of a two-part series of columns, Justia columnist and Cornell law professor Sherry Colb continues her commentary on an upcoming Supreme Court case that raises the following question: Does the Fifth Amendment’s guarantee of protection against compelled self-incrimination protect a suspect’s “right to remain silent” outside of the custodial setting? That is, does a suspect who has neither received any Miranda warnings nor is currently in custody have a right not to speak? In this series, Colb analyzes the question and suggests possible answers. (Part One of this two-part series appeared here on Justia’s Verdict on Wednesday, February 6.)

The American Bishops, Contraception, and Gender Discrimination

Justia columnist and Cardozo law professor Marci Hamilton comments on last week's issuance by, the Obama Administration, of revised HHS regulations that accommodate religious organizations that object to providing contraception and abortion services as part of their requirement to provide health insurance under the Affordable Care Act (ACA). Hamilton explains the exemption, its four criteria, and how the rules work. She also notes that the religious exemption does not apply to for-profit entities, and likely will be held not to apply to nonprofit entities, either. The reason the exemption likely does not apply, Hamilton explains, is that employers are completely out of the loop, with the health insurance issue (including issues regarding contraception and abortion) now solely an issue, under the regulations, between a woman and her doctor.

Salinas v. Texas in the U.S. Supreme Court: Does the Fifth Amendment Protect the Right to Remain Silent? Part One in a Two-Part Series of Columns

In Part One of a two-part series of columns, Justia columnist and Cornell law professor Sherry Colb comments on an upcoming Supreme Court case that raises the following question: Does the Fifth Amendment's guarantee of protection against compelled self-incrimination protect a suspect’s “right to remain silent” outside of the custodial setting? That is, does a suspect who has neither received any Miranda warnings nor is currently in custody have a right not to speak? In this series, Colb analyzes the question and suggests possible answers. (Part Two of this two-part series will appear on Justia on Wednesday, February 13th.)

Congressional Republicans Offer Three Bad Arguments for Upholding the Defense of Marriage Act

Justia columnist and Cornell law professor Michael Dorf takes strong issue with the three arguments that Congressional Republicans have put forward in support of Section 3 of the Defense of Marriage Act (DOMA), which defines marriage as opposite-sex marriage alone for purposes of federal law. Next month, the Supreme Court will hear oral argument in the case. Dorf characterizes the three arguments put forward in favor of Section 3 by Congressional Republicans as very weak, and indeed, shockingly unpersuasive, analyzing each in turn.

The No Budget, No Pay Bill, the Twenty-Seventh Amendment and the Debt Ceiling

Justia columnist and U.C. Davis law professor Vikram David Amar comments on a bill that purports to withhold salary from all members of a House during the time the House has failed to produce a budget. Amar contends that such a bill violates the Constitution’s Twenty-Seventh Amendment, which states that “No law, varying the compensation for the services of Senators and Representatives, shall take effect, until an election for Representatives shall have occurred.” The bill itself purports to comply with the Twenty-Seventh Amendment, but Amar is deeply skeptical about that claim.

Meet our Columnists
Vikram David Amar
Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan, an economist and legal scholar, holds the James J. Freeland Eminent Scholar... more

Sherry F. Colb
Sherry F. Colb

Sherry F. Colb is the C.S. Wong Professor of Law at Cornell University. Colb teaches courses in... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973.... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He... more

Samuel Estreicher
Samuel Estreicher

Samuel Estreicher is the Dwight D. Opperman Professor, Director, Center for Labor and Employment... more

Leslie C. Griffin
Leslie C. Griffin

Dr. Leslie C. Griffin is the William S. Boyd Professor of Law at the University of Nevada, Las... more

Joanna L. Grossman
Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School... more

Marci A. Hamilton
Marci A. Hamilton

MARCI A. HAMILTON is the Fels Institute of Government Professor of Practice, and Fox Family... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of... more

Austin Sarat
Austin Sarat

Austin Sarat is Associate Provost, Associate Dean of the Faculty and William Nelson Cromwell... more

Lesley Wexler
Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately... more