Analysis and Commentary on Courts and Procedure

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.

A Federal Court Looks at Wisconsin’s Political War

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.

Is Tim Draper’s Six Californias Plan to Split the State Legal Under California Law?

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.

The Ninth Circuit, in SmithKline v. Abbott Labs, Bars Lawyers From Removing Gay/Lesbian Jurors: Part Two in a Two-Part Series

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.

The Ninth Circuit, in SmithKline v. Abbott Labs, Bars Lawyers From Removing Gay/Lesbian Jurors

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.

The Supreme Court’s Responsibility for Recent Death Penalty Mishaps

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.

Citation as DNA

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.

2013: The Year in Review for Child Sex Abuse Victims’ Access to Justice

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.

U.S. Supreme Court Considers When Heroin Dealing “Results” In Death Part Two of a Two-Part Series of Columns

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.

Walden v. Fiore: The Supreme Court Turns to Personal Jurisdiction Issues

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.

Gov. Jerry Brown’s Recent Veto of Child Abuse Legislation and What It Tells Us About the Civil Rights Movement for Children

Justia columnist and Cardozo law professor Marci Hamilton takes strong issue with California Governor Jerry Brown’s decision to veto anti-child-abuse legislation. She argues that, in the civil rights movement for children, which she notes, is transforming children from property into persons in the United States, a critical element is giving child sex abuse victims meaningful access to justice, and she castigates Governor Brown for ignoring children's rights.

Are Trial Courts Even-Handed in Excusing Jurors Based on their Views on the Death Penalty?

Justia guest columnist and Loyola Law School professor Paula Mitchell continues her series of columns on the death penalty in California. She describes the methods trial courts must use in deciding whether to exclude prospective jurors in death penalty cases. She then examines several cases suggesting that trial court judges do not necessarily act even-handedly when excusing jurors based on their views on the death penalty.

Ripe for Resolution: Ending Taxpayer Expenditures on Pointless Litigation

In this second of a series of columns on the death penalty in California, Justia guest columnist and Loyola Law School professor Paula Mitchell describes a procedural dilemma facing federal courts in states with the death penalty. Mitchell explains that under a Supreme Court case decided earlier this year, federal courts are not required to stay habeas corpus proceedings for death row inmates who are mentally incompetent. She describes the absurd result this holding creates and calls on death penalty states to implement alternative dispute resolution programs in order to reduce miscarriages of justice and end “taxpayer expenditures on pointless litigation.”

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 Co... 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 tea... 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 Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School of L... more

Marci A. Hamilton
Marci A. Hamilton

Marci A. Hamilton is one of the leading church/state scholars in the United States, a Fox Distinguis... 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... 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