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.
John Dean, former counsel to the president, describes former President Richard Nixon’s views of, and influence on, the U.S. Supreme Court. In the process, Dean reveals some tidbits of information about Nixon that he discusses in greater depth in his upcoming book, The Nixon Defense: What He Knew and When He Knew It.
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.
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 Amar responds to arguments by the State Legislative Counsel that Proposition 187 can be repealed by simple legislation.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.
Cornell University law professor Sherry Colb describes some of the differences between mediation and litigation and how the former might be a better method for resolving human conflict. Colb first looks at the opening statement that mediators give to the parties in mediation, which she argues reveals a fundamental strength of the approach.
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.
U.C. Davis law professor Vikram David Amar discusses how three cases on the U.S. Supreme Court’s docket for the 2014-2015 Term illustrate the nuanced principles behind the Court’s selection of cases for review. Amar describes each case and explains why the Supreme Court likely chose it for review.
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.
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.
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.
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.
Justia columnist and former counsel to the president John Dean comments on a federal lawsuit that seeks to halt Wisconsin’s inquiry into potential abuses or misuses of that state’s campaign finance laws. Dean describes Wisconsin’s “John Doe” investigations and explains the significance of a federal district judge’s denial of a motion to dismiss a case challenging one such proceeding that relates to Wisconsin Governor Scott Walker.
Justia columnist and U.C. Davis law professor Vikram David Amar continues his discussion of the legal issues raised by Tim Draper’s “Six Californias” initiative. In this column, Amar focuses on one particular issue: whether California courts will block the initiative on the ground that it constitutes a “revision” of the California constitution. Amar explains the procedural distinctions between “revisions” and “amendments” to the state constitution and suggests that current case law does not clearly predict the outcome of the Six Californias initiative.
In the second in a two-part series of columns, Justia columnist Vikram David Amar and Justia guest columnist Alan Brownstein, both U.C., Davis law professors, continue their commentary on a Ninth Circuit decision regarding the use of peremptory challenges in jury selection to eliminate gay or lesbian jurors. Amar and Brownstein also note the strong possibility of additional developments that may follow in this area of law, and a host of others, regarding gay and lesbian rights, especially if intermediate level scrutiny is held by the Supreme Court, in the future, to govern all types of sexual-orientation-based discrimination.
In Part One of this two-part series of columns, Justia columnist Vikram David Amar and Justia guest columnist Alan Brownstein, both U.C., Davis law professors, discuss whether it violates the Fourteenth Amendment’s Equal Protection Clause for a lawyer to “strike” (that is, remove) individuals from a jury panel on account of their sexual orientation. Part Two in this two-part series of columns will appear on February 14.
Justia columnist and Cornell law professor Michael Dorf argues that what the late Justice Harry Blackmun famously called “the machinery of death” still remains deeply flawed. Dorf illustrates his point through two recent, controversial executions that illustrate how the practice of capital punishment continues to defy attempts to civilize it, and suggests that the responsibility is to be placed at the Court's door.
Justia guest columnist, Cornell law professor emeritus, and former dean of Cornell Law School Peter W. Martin explores how citation format can be used to expose the true parentage of a case law collection, such as that of Westlaw, LexisNexis, Bloomberg Law, and other case law database services. Martin describes his methodology and calls attention to the existence of differences among the major database services. He questions whether these differences even matter to a majority of practitioners, judges, and librarians but cautions that for the sake of authenticity and reliability, they perhaps should matter.
Justia columnist and Cardozo law professor Marci Hamilton describes and comments on developments regarding justice for child-sex-abuse victims. Hamilton reports that, in 2013, the pace of the movement to procure justice for victims quickened remarkably. But there is also a negative development, Hamilton notes: religious groups have gone back to the drawing board to find new ways to protect themselves from the law in this area.
Justia columnist and Cornell law professor Sherry Colb continues her two-part series regarding the Supreme Court’s Burrage case, which involves dealers’ responsibility for heroin overdoses. Here, in Part Two of the series, Colb comments on how the components of causation might apply to the particular facts of the case before the Court.
Justia guest columnist and Touro Law Center professor Rodger Citron comments on one of the two personal jurisdiction issues that have come before the Supreme Court. Here, in Walden v. Fiore, the Court addresses what is called specific jurisdiction. Citron notes that Justice Ruth Bader Ginsburg may well take a strong role in the case, in light of her special civil procedure expertise.