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.

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.

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.

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.

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.)

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.

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.)

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.

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.

Justia columnist and Cornell law professor Sherry Colb discusses two Supreme Court Double Jeopardy cases, Evans v. Michigan and Blueford v. Arkansas, that turn on what ought to happen when a judge makes a mistake about state law and consequently takes a case away from the jury. Since the mistake in Evans helped the defendant, Colb argues that the resolution of Evans will tell us a lot about how principled—or unprincipled—the Court’s application of its Double Jeopardy doctrine will be: Will the Court be consistent about the Double Jeopardy doctrine, even despite the possibility that its ruling might help criminal defendants? Colb also comments on the contrast between Evans and last year’s ruling in Blueford, where the judge also made a mistake, but not, in that case, a mistake that helped the defendant.

Justia columnist and Hofstra law professor Joanna Grossman comments on DoD’s recent decision to remove the ban on women in combat. After providing a brief history of women in the military, Grossman characterizes the ban as having been a stubborn form of sex discrimination, and notes that the ban had been honored in the breach, as military women were increasingly participating in combat roles that put them in harm's way, as a number of their deaths have sadly proven. Thus, Grossman calls on the military to recognize the reality that women already occupied what are in effect combat roles, even before the DoD restrictions were lifted, and to ensure military women’s equality by addressing the high level of sexual abuse in the military.

Justia columnist and former counsel to the president John Dean comments on the Aaron Swartz case—in which the brilliant young computer programmer was, according to many commentators, including Dean himself, overzealously prosecuted—and eventually chose suicide over the likely lengthy prison sentence that he faced, based on his downloading for free numerous journal articles that otherwise would have cost money to access, and using MIT facilities to do so. Dean recalls instances where others have proved more reasonable, such as the case of a Vietnam War demonstrator with which Dean was familiar, and deems the Swartz case an instance of blatant prosecutorial overcharging. Dean also warns that there is nothing unusual about Swartz's case, in that prosecutorial overcharging is rife.

Justia columnist and Cornell law professor Michael Dorf continues his two-part series of columns on Roe v. Wade on its 40th anniversary. Here, in Part Two of Dorf’s two-part series, he addresses a common criticism that has been voiced by Justice Ruth Bader Ginsburg, prior to her joining the Court, and by others as well: the criticism that Roe went too far, too fast and that having more of a dialogue beforehand might have led to less controversy surrounding the decision. Dorf disagrees with this criticism of Roe and its timing, contending (1) that the criticism may well have been mistaken from the very beginning, and (2) that the passage of forty years since Roe was handed down has surely and clearly refuted the too far, too fast critique of Roe. (Part One of Dorf's series on Roe appeared on January 17 here on Justia’s Verdict.)

Justia columnist and U.C., Davis law professor Vikram David Amar comments on the possible First Amendment issues that could arise from the application of laws that especially favor labor picketing, above other kinds of picketing. Amar covers a recent California Supreme Court ruling on the issue, and the relevant U.S. Supreme Court precedents as well. Amar critiques the California Supreme Court's analysis, but also concludes that, in the end, the California Supreme Court's result was the right one. Amar also notes the reasons why this important First Amendment/labor rights issue may ultimately land at the U.S. Supreme Court in the coming years.

In the first in a two-part series on Roe v. Wade on its 40th anniversary, Justia columnist and Cornell law professor Michael Dorf explains where three common criticisms of the controversial Supreme Court precedent each go wrong. The criticisms run as follows: (1) that the constitutional text nowhere mentions abortion; (2) that the original meaning of the Fourteenth Amendment did not encompass a right to abortion; and (3) that the courts ought to stay out of socially divisive issues. If these objections are carefully considered, Dorf concludes, none of them holds water. Still, Dorf notes, Roe was nonetheless a hard case. (Dorf will continue his commentary on Roe’s 40th in his Wednesday, January 23 column.)

Justia columnist, George Washington law professor, and economist Neil Buchanan continues his ongoing commentary (which has, at times, been co-written with fellow Justia columnist and Cornell law professor Michael Dorf) on how President Obama should handle the debt-ceiling situation. More specifically, Buchanan focuses on what he calls the President’s two least bad options, should he decide to issue debt in excess of the debt ceiling. They are (1) issue new debt as usual, and (2) issue IOUs to the public. Buchanan acknowledges that neither option is without risk, but he points out that those risks exist only because the Republicans in the House have insisted on creating this crisis, and thus the responsibility for any such risk should be laid at their door, not that of the President.

Justia columnist and U. Washington law professor Anita Ramasastry discusses the way in which Section 230 of the Communications Decency Act (CDA) has unintentionally offered a safe harbor to websites on which people’s exes post nude or other intimate photos that were taken during the course of a relationship, and that were intended by the subject of the photo to be forever kept private. Ramasastry notes how adding additional information to the photo, such as a home address, could be a crime, as it aids cyberstalking. In addition, she urges that Congress ought to amend Section 230 in order to prevent unintended negative consequences like these.

Justia columnist and former counsel to the president John Dean discusses the debt-ceiling crisis and how it might play out. Dean notes that if both sides remain adamant in their positions, we will be in unchartered territory, and that President Obama is refusing to negotiate this time around. To make the stakes here clear, Dean describes the impact of failing to raise the debt-ceiling limit. Moreover, citing the work of fellow Justia columnists Neil Buchanan and Michael Dorf, Dean also explains the constitutional and legal problems that will arise if the debt ceiling is not raised, and why its not being raised is a real possibility. Dean also questions whether an out-of-control Congress might even attempt to impeach President Obama if he were to be forced to break the law in order to prevent the U.S. from defaulting, and avert a financial catastrophe.

Justia columnist and Cornell law professor Sherry Colb discusses the ramifications of the U.S. Court of Appeals for the Sixth Circuit’s decision to uphold a series of restrictions on medical abortions (such as abortions effected by taking the drug RU-486) against various constitutional challenges by Planned Parenthood and others. Colb explains why making medical (as opposed to surgical) abortions more difficult can also have other ramifications, as well. For instance, she suggests that the restrictions at issue may be motivated by politics, and not by concern for women’s health. In particular, Colb points out that medical abortions do not require clinic visits where women seeking abortions must face down pro-life protesters; and that such abortions, with no health care provider involved, may defeat a pro-life strategy of vilifying abortion providers and painting women who seek abortions as victims of society’s decision not to fully support motherhood.

Justia columnist and Hofstra law professor Joanna Grossman takes strong issue with a recent Iowa Supreme Court decision holding that a male dentist did not violate a law banning sex discrimination in employment when he fired his very competent dental assistant simply because he was attracted to her. Grossman argues that the Iowa courts should, in this case, have recognized that the dentist perpetrated what is called “sex-plus discrimination,” which joins sex discrimination with another factor, such as an attraction to a particular person of that sex. Thus, Grossman explains, it is not a factor in the dentist's favor, legally, that he had hired other female assistants, and did not harass them. When women are treated worse than men at work because of their gender, Grossman concludes, discrimination law must apply, regardless of how many women are harassed or how selective or attraction-based the harasser may be.