Analysis and Commentary on Courts and Procedure

Ebola and Civil Liberties: Lessons From Gitmo

Cornell University law professor Michael Dorf analogizes the authority of the government to enact quarantine measures to its authority (as established under Supreme Court precedents) to detain unlawful enemy combatants. Dorf argues that while courts are likely to reject the most outrageous detention policies, they are unlikely to reject policies simply for being misguided or unwise.

Yet Another (Judicial) Incursion Into A State’s Decisions About How to Structure Direct Democracy: The Ninth Circuit’s Ruling in Chula Vista Citizens for Jobs and Fair Competition v. Norris

U.C. Davis School of Law professor Vikram David Amar describes a recent incursion by the U.S. Court of Appeals for the Ninth Circuit into California’s direct democracy system. Amar explains the U.S. Supreme Court precedents that led the Ninth Circuit to its conclusion, and he calls upon the Court to cut back or overrule its prior erroneous decisions to avoid future injuries to state direct democracy systems.

Suing the President

Chapman University law professor Ronald Rotunda discusses on the lawsuit against President Obama and explains the issue of judicial standing to sue the President for exceeding his constitutional authority. Rotunda points to the U.S. Supreme Court’s recent decision in United States v. Windsor, the case in which the Court struck down Section 3 of the Defense of Marriage Act, as supporting standing for the new case against the President.

The Supreme Court’s Approach to Restitution For Victims of Child Pornography Possession

Cornell University law professor Sherry Colb discusses the U.S. Supreme Court’s decision in Paroline v. United States, in which the Court considered how much restitution a victim of sexual abuse should be able to recover from a single perpetrator. Colb explains the reasoning used by the majority and the two diametrically opposed dissenting opinions, and she extends the discussion to an important narrative the Court’s opinions fail to consider.

Using Facebook as a Discovery Device

Chapman University law professor Ronald Rotunda discusses how various courts and bar associations treat attorneys’ uses of Facebook and other social networking sites. Rotunda describes some different rules that affect how lawyers may and may not use social networking sites to interact with witnesses, opposing parties, jurors, and clients.

How to Read Justice Kennedy’s Crucial Concurring Opinion in Hobby Lobby: Part II in a Series

Vikram David Amar, a U.C. Davis law professor, continues his discussion of the significance of Justice Anthony Kennedy’s concurrence in Burwell v. Hobby Lobby Stores Inc.. Amar describes several ways in which Justice Kennedy’s concurrence can be read to limit the breadth of the Court’s holding in that case and suggests that lower courts should pay close attention to his concurring opinion when applying the Religious Freedom Restoration Act (RFRA) in subsequent cases.

Federal Appeals Courts Divide Over Obamacare Subsidies—and Over “Textualism”

Cornell University law professor Michael Dorf discusses two federal appeals courts’ recent diverging decisions over Obamacare subsidies. Dorf contrasts the method of statutory interpretation used by the majority of a panel of the U.S. Court of Appeals for the D.C. Circuit, which struck down the subsidies, with that of the Court of Appeals for the Fourth Circuit, which upheld them.

A Potential Guide to the Meaning of Hobby Lobby: Why Justice Kennedy’s Concurring Opinion May Be Key, Part I

Professor Vikram David Amar, of U.C. Davis School of Law, explains why Justice Kennedy’s concurring opinion in Burwell v. Hobby Lobby Stores Inc. deserves heightened attention and weight. In this first of a two-part series of columns, Amar provides background on the roles and types of concurring opinions in 5-4 decisions and provides some historical examples of some key concurrences.

Follow-Up on California’s Legislative Effort to Repeal Proposition 187

U.C. Davis law professor Vikram David Amar continues his discussion of the California Legislature’s efforts to repeal, by ordinary legislation, provisions of a proposition that have been blocked indefinitely by a federal district court judge. Amar responds to arguments by the State Legislative Counsel that Proposition 187 can be repealed by simple legislation. He contends that the Legislative Counsel overreads the import of a judicial block on enforcement of the proposition and ignores the expressive effects of that law. Amar concludes by proposing that while he agrees that the repeal should go forward, it should follow prescribed procedures and include popular approval.

Why the California Legislature Can’t Simply Repeal the Judicially Invalidated Proposition 187

U.C. Davis law professor Vikram David Amar discusses efforts by California lawmakers to repeal provisions of the state code that a federal judge invalidated many years ago. Amar explains why those efforts, though understandable, reflect fundamental understandings of the scope of the legislature’s authority and the essence of judicial review.

The Supreme Court Ducks a Treaty Power Question but Raises Broader Questions

Cornell University law professor Michael Dorf discusses the U.S. Supreme Court’s decision in Bond v. United States, handed down earlier this week. In that case, the Court considered whether the federal Chemical Weapons Convention Implementation Act applies to a Pennsylvania woman’s attempted use of mild toxins to cause a skin rash on a romantic rival. Dorf argues that the Court’s ruling sidesteps an important question about the scope of congressional power to implement treaties but that it also announces a presumption of statutory construction that could have far-reaching implications.

Secret Endless Editing of Published Supreme Court Opinions

Former counsel to the president John Dean comments on a recent public revelation that the U.S. Supreme Court quietly revises its decisions years after they were issued. Drawing upon a forthcoming article by Harvard Law professor Richard Lazarus, Dean describes the process by which the Court releases its rulings to the public. He predicts that it will not be the errors and mistakes that will place the Court’s institutional integrity at risk in the future, but the secretive and dubious means they now use to change their written and published opinions.

Will the Lower Court Consensus on Same-Sex Marriage Influence the Supreme Court?

Cornell University law professor Michael Dorf discusses how the lower courts’ consistent rulings in favor of same-sex marriage might influence a decision by the U.S. Supreme Court. Dorf observes that every single judge to rule on the question has relied on the Court’s 2013 decision in United States v. Windsor for the conclusion that SSM bans are unconstitutional. He concludes that while the lower courts’ decisions have no binding effect on the Supreme Court, they might serve as a legal barometer of what is legally plausible and as conduits of public opinion.

What Will the Supreme Court Do in the False Campaign Speech Case, Susan B. Anthony List v. Driehaus, Argued This Week?

Justia columnist and UC Davis law professor Vikram David Amar discusses a campaign regulation case in which the U.S. Supreme Court heard oral arguments earlier this week. In that case, Susan B. Anthony List v. Driehaus, pro-life organization Susan B. Anthony List (SBA List) challenged on First Amendment grounds an Ohio law criminalizing certain false statements concerning a candidate for public office. Amar predicts what the Supreme Court will do and contrasts that with what he believes the Court should do in this case.

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 Col... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan is an economist and legal scholar, a Professor of Law at The George Washington Univ... more

Sherry F. Colb
Sherry F. Colb

Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell University. Colb teac... more

John Dean
John Dean

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

Michael C. Dorf
Michael C. Dorf

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

Joanna L. Grossman
Joanna L. Grossman

Joanna L. Grossman is the Sidney and Walter Siben Distinguished Professor of Family Law at the Mauri... more

Marci A. Hamilton
Marci A. Hamilton

Marci A. Hamilton is one of the leading church/state scholars in the United States and the Paul R. V... more

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... more

Joseph Margulies
Joseph Margulies

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

Anita Ramasastry
Anita Ramasastry

Anita Ramasastry is the UW Law Foundation Professor of Law at the University of Washington School of... more

Ronald D. Rotunda
Ronald D. Rotunda

Ronald D. Rotunda is the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, at... more