Analysis and Commentary on Courts and Procedure

A Supreme Court Admiralty Case Sheds Light on a Longstanding Debate

Justia columnist and Cornell law professor Michael Dorf comments on an admiralty case in which the Supreme Court will hear oral argument next week, on the first day of its new Term. As Dorf explains, the case raises a narrow question at first glance: whether a houseboat counts as a “vessel” under federal maritime law. But Dorf also notes that, upon closer inspection, the case has a much wider meaning, illuminating the relevance of longstanding jurisprudential debates to real-world litigation. In particular, Dorf relates the case to a famous debate between two major thinkers on jurisprudence, H.L.A. Hart and Lon Fuller. Hart was a positivist; Fuller hewed to a “natural law” view; and Dorf explains how each of these stances relates to the case before the Court. Dorf also parallels the Hart/Fuller disagreement with one between Justice Scalia and Richard Posner.

The Downside of Juries in a World That Can’t Stop Talking

Justia columnist and Cornell law professor Sherry Colb comments on the roles that introverts and extroverts, respectively, may play on juries. Drawing on the book Quiet: The Power of Introverts in a World That Can't Stop Talking, by Susan Cain, Colb notes that the American legal system assumes that extroversion is optimal, and both law schools and the legal world, more generally, reward it. But, Colb asks, what if we’re wrong in our assumptions about introverts and extroverts? Colb describes some of the detrimental effects that our collective elevation of extroversion may be having on the criminal justice system, and on society more generally, especially as extroverts tend to have overly optimistic views, when more balanced views would ideally be better (as is, perhaps, illustrated by the run-up to the 2008 financial crisis). Meanwhile, studies also show that in groups, people's views tend to follow those of others in a group—in a tendency toward conformity. Thus, Colb asks us to consider our juries: Are we really getting twelve individual views of the case in jury deliberations, or are the influences of conformity and extroversion undermining that ideal? If, indeed, they are, Colb offers an intriguing solution.

Are We Our Co-Jurors’ Keepers? New Social-Media Jury Instructions Ask Jurors to Turn in Their Peers If They Break the Rules

Justia columnist and U. Washington law professor Anita Ramasastry discusses the problem of jurors’ using social media to research—or even communicate with others about—the trials on which they serve. Ramasastry offers statistics and examples regarding the nature and frequency of the problem of juror social-media use, and discusses the new model jury instructions addressing this issue. She also covers some egregious instances of jury misconduct in this area, and considers whether instituting a new rule of peer policing by jurors, of other jurors’ social-media use, will turn out to be a good idea in the end. In particular, Ramasastry expresses considerable concern about the propriety of judges’ mandating peer-to-peer juror policing regarding social-media use, and thus potentially altering natural jury dynamics.

Can A Lower Federal Court Effectively Provide Protection Against Prosecution? A Mississippi Abortion Law Raises the Question

Justia columnist and U.C., Davis law professor Vikram David Amar comments on an interesting and important issue regarding the power of federal courts. Specifically, Amar addresses the question whether a federal court can issue an injunction against future prosecution: If a district court tells you that the actions you are about to take are immune from prosecution, should you be able to rely on that immunity, even if it turns out that the district judge had provided it based on a flawed legal premise? As Amar points out, the Supreme Court precedent on this question is far from clear, and at least one of the Court’s liberals has suggested that reliance by a party on immunity that is wrongfully accorded to that party by a district court may be foolhardy. Amar also explains how this issue has arisen in a current controversy about Mississippi abortion services.

Was It Wrong for Chief Justice Roberts to “Flip Flop” on Obamacare?

Justia columnist and Cornell law professor Sherry Colb raises an intriguing question regarding the Supreme Court’s recent decision upholding the Affordable Care Act, also known as the ACA or, more colloquially, as Obamacare. Colb notes that leaks from the Court have suggested that Chief Justice Roberts initially was inclined to vote with his four conservative colleagues to strike down the ACA, but later changed his mind to side with the Court’s liberals and uphold the legislation. Assuming for purposes of argument that (1) the leaked information is accurate, and (2) Chief Justice Roberts’s claimed flip-flop was based in part on public sentiment, did Roberts do anything wrong? Colb suggests, interestingly, that the correct answer to that question may be “No.” Using two hypothetical court scenarios, as well as the ACA case itself, Colb isolates the kinds of cases and issues in which a judge would be wrong—or right—to take public sentiment into account.

The Top 10 Things to Take Away From Last Week’s Supreme Court Obamacare Ruling

Justia columnist and U.C., Davis law professor Vikram David Amar comments on the ten key takeaways from last week’s Obamacare opinion. Some of the lessons Amar suggests that the opinion teaches are not just about the Supreme Court, but, interestingly, also about the media, and about Intrade users. Moreover, when it comes to the Court and its Justices, Amar points out lessons that we might learn about Justice Kennedy and Chief Justice Roberts, respectively, from the opinion. Amar also points out lessons that we might learn from the opinion about Commerce Clause doctrine and doctrines regarding constitutional federalism.

It Does Not Matter Whether Congress Calls a Tax a Tax: Explaining the Dissenting Justices’ Misconceptions About the Taxing Power in the Affordable Care Act Case

Justia columnist, George Washington law professor, and economist Neil Buchanan takes aim at the arguments that the dissenting justices made regarding the Affordable Care Act (ACA), and, more specifically, regarding the taxing power. Those taxing power arguments, Buchanan contends, proved to be a dangerous red herring. Buchanan makes his case to that effect by using some ingenious hypotheticals; he argues that it is perfectly logical to deem a certain measure a tax for some purposes, but not for others. It is substance, he says, rather than form, that ultimately matters. Moreover, Buchanan notes, a tax by its nature need not be motivated by the government’s aim to raise money, although the ACA will, indeed, raise some money. Often, Buchanan points out, taxes are meant not to raise money but to incentivize or penalize certain behaviors. Ultimately, Buchanan notes that it is of no import, legally, that the ACA is not characterized as a tax; the key is that it, in part, operates as a tax.

Why Chief Justice Roberts Dared Not Overturn President Obama’s Healthcare Plan

Justia columnist and former counsel to the president John Dean comments on Chief Judge John Roberts’s role in the Supreme Court ruling upholding Obamacare. Dean anticipated that Roberts would vote, as he did, to uphold the healthcare statute, and Dean notes some other learned commentators who had also anticipated Roberts’s stance. A major factor in Dean’s prediction as to where Roberts would come down was Robert’s own testimony in the confirmation hearings that led him to join the Court. Describing himself in those hearings as an “umpire,” Roberts made clear that he would apply pre-existing, well-grounded legal rules, and not create new ones out of whole cloth. To show how Roberts did just that, Dean sums up the various Commerce Clause precedents that were relevant in the Obamacare case, and explains how Roberts dutifully followed them.

A Supreme Court Ruling on Jurisdiction Has Potential Implications for the Law Regarding Drone Strikes

Justia columnist and Cornell law professor Michael Dorf discusses the Supreme Court’s decision in Elgin v. Dep’t of Commerce, which was just recently handed down. Dorf argues that the opinion, though not one of Term’s blockbusters, is still quite significant. That is, in part, because the decision may have implications for the U.S.’s controversial practice of using drone strikes to kill persons deemed to be U.S. enemies—including even U.S. citizens who are abroad. Moreover, Dorf notes that Elgin may have implications for the question whether the Obama Administration has been on firm legal ground when it has declined to enforce the Defense of Marriage Act (DOMA). In addition to these more practical implications of Elgin, Dorf contends that the decision may also be significant as a matter of constitutional theory regarding the respective roles of each of the branches of government.

Obamacare and the Misguided Criticism of “Liberal Law Professors” Who Defend It

Justia columnist and U.C. Davis law professor Vikram Amar takes issue with Stanford law professor Michael McConnell’s critique of the arguments of liberal law professors who defend the constitutionality of Obamacare. In a recent Wall Street Journal Op-Ed, McConnell took aim at such professors. In particular, McConnell argued that liberal law professors have failed to make “actual legal arguments, based on text, history, structure and precedent” to support Obamacare. Moreover, McConnell claimed that liberal law professors’ definition of judicial activism is one-sided—a charge that they only believe to be true when it applies to the conservative Justices. Amar counters McConnell’s arguments on both of these points, providing a very specific description of the constitutional-law basis for their view that Obamacare is constitutional.

What Does the Pew Research Center’s Recent Survey Showing an Historically Low Favorability Rating of the Supreme Court Tell Us?

Justia columnist and U.C. Davis law professor Vikram Amar comments on the results of a recent survey conducted by the Pew Research Center, regarding the percentage of adult Americans who hold a favorable view of the Supreme Court. Amar notes that the current percentage is 52%, a 25-year low. After describing the details of the Pew Survey, Amar considers the possible reasons for this low rating, suggesting that factors that may play a role include (1) The perception that the Court is no better than Congress (which gets low favorability ratings and is, obviously, partisan); (2) The impressions of the Justices that have been conveyed by some recent confirmation processes, particularly when nominees have made embarrassing gaffes that were ceaselessly repeated in the media, or have constantly avoided questions about the law; and (3) Republicans’ displeasure with the Court on social-issues cases, despite the Court’s conservative track record in its cases generally—and in certain blockbuster cases—over the last dozen years, in combination with what seems to be the advent of a more radicalized Republican Party.

Did Keith Olbermann Blow His Lawsuit Against Current TV By Saying “I Screwed Up” on Letterman? Absolutely Not!

Justia columnist and former counsel to the president John Dean comments on a remark that was recently made by Keith Olbermann—the longtime news anchor and a friend of Dean’s—on David Letterman’s “Late Show.” Dean argues that the remark, “I screwed up,” has been seriously misinterpreted and placed in the wrong context. As Dean discusses, the remark’s meaning is particularly important because it may well play a part in a lawsuit regarding Olbermann’s termination last month from his position as the anchor of “Countdown With Keith Olbermann” and Chief News Officer at Current TV. Dean clarifies the context of the comment—noting that Olbermann meant that he’d screwed up in joining Current TV in the first place, not that he’d screwed up in his work there. Dean also raises a larger issue of the press’s picking up on language in initial court pleadings—such as Current TV’s in this case—when parties are not ultimately accountable for what they’ve said in those early pleadings.

The Trial of the Century?

Justia columnist and Hunter College Human Rights Program Director Joanne Mariner comments on the official beginning of the military commission proceedings against Khalid Shaikh Mohammad and his four co-defendants. As Mariner notes, the United States is seeking the death penalty against all five men, who are accused of a litany of crimes relating to the 9/11 attacks: terrorism, hijacking, murder, conspiracy, and intentionally causing serious bodily injury. Mohammad, as Mariner explains, has taken responsibility for the attacks, and the other four defendants are alleged to have played key organizational or financial roles in the attacks. Mariner argues that for the verdict in these cases to be seen as just, the defendants must be granted basic procedural guarantees and must face an impartial and independent tribunal. However, Mariner argues, neither the procedures that will be used, nor the tribunal itself, fit these requirements. In particular, Mariner emphasizes the key differences between judicial independence and military discipline, when it comes to the administration of justice, and urges that civilian courts, not courts-martial, should be the tribunals adjudicating these cases. She cites the Zacarias Moussaoui civilian trial as a success in showing that the civilian justice system can work well even in terrorism cases, and suggests that these cases, too, should have gone forward in the civilian justice system.

Newt Gingrich Is Right That Judicial Supremacy Has Been Challenged Before, but Wrong to Try to Turn Back the Clock

Justia columnist and Cornell law professor Michael C. Dorf takes strong issue with presidential candidate Newt Gingrich’s comments regarding judicial supremacy. In particular, Dorf explains, Gingrich has suggested that federal judges could be summoned—even by force—to explain their decisions before Congress, and that Supreme Court Justices and lower federal court judges with whose opinions Gingrich disagrees ought to be impeached. Dorf explains that, as Gingrich states, there have indeed been times in American history when judicial supremacy—which holds that all other government actors must act as if bound by the rulings of the Supreme Court—has been controversial. However, Dorf contends, Gingrich—in suggesting that we revert to those times—fails to appreciate how and why the courts’ role has evolved over the course of American history up to the present, and, worse, puts forth a dangerous proposition.

Should Bloggers Be Deemed Journalists, With the Power to Trigger the Supreme Court’s Favorable Rules Regarding Damages, Invoke Retraction Statutes, and Protect Confidential Sources? A Federal District Judge Offers Some Answers

Justia columnist and attorney Julie Hilden comments on a Portland, Oregon-based federal district judge’s ruling in a case where a key question was when—if ever—a blogger can count as a journalist. The judge, addressing a defamation suit that was brought against the blogger, declined to allow her to invoke two Oregon laws that were meant to protect journalists by (1) requiring potential defamation plaintiffs to give journalists who are potential defamation defendants a chance to correct or retract the allegedly defamatory statements, if the plaintiffs want to recover their full damages; and (2) allowing journalists to protect their confidential sources by keeping them anonymous. In addition, the judge—moving on from Oregon-law issues to federal-law issues—refused to grant bloggers the right to invoke favorable U.S. Supreme Court case law regarding damages unless the bloggers qualified as journalists under the judge’s multi-factor test. Hilden takes issue with both of the judge’s Oregon law rulings, and, to some extent, also with his proposed multi-factor test as to who counts as a journalist.

The California Supreme Court Rules that Prop. 8’s Proponents Have Standing to Defend the Initiative: What Does That Mean in the Ninth Circuit and U.S. Supreme Court?

Justia columnist Vikram David Amar, and Justia guest columnist Alan Brownstein, both U.C., Davis law professors, comment on the latest ruling in the litigation regarding Proposition 8, the California anti-gay-marriage initiative. Amar and Brownstein begin by noting that this ruling holds that the initiative’s proponents have the authority to defend the initiative in California state court, now that elected representatives have declined to do so. They then summarize all the Prop. 8 litigation that has occurred thus far. In addition, they explain what may happen if this case reaches the U.S Supreme Court based on the standing issue it presents (that is, the issue of whether the parties at issue are legally able to bring this case). They cover a reason why the Supreme Court might decline to find federal standing: until now, initiative proponents have not been elected or specifically deputized by the people. Finally, they briefly discuss some other troubling questions regarding the Prop. 8 litigation that the California ruling did not address.

Why the U.S. Court of Appeals for the Third Circuit Declined to Change Its Mind About “Nipplegate,” Despite a Recent Opportunity From the U.S. Supreme Court to Do So

Justia columnist and attorney Julie Hilden explains why a case regarding the famous 2004 “Nipplegate” incident—involving Janet Jackson, Justin Timberlake, and the Superbowl—has returned to the U.S. Court of Appeals for the Third Circuit: An FCC crackdown led to a whopping fine for CBS, which is still being litigated. The Supreme Court recently sent the case back for reconsideration, in light of the High Court’s recent, related decision in FCC v. Fox Television Stations, Inc. But upon reconsideration, two judges on the three-judge Third Circuit panel reached essentially the same decision that they had reached on the first go-round, despite the High Court’s direction to take into account the Fox ruling. In light of that fact, Hilden suggests that the “Nipplegate” case may end up at the Supreme Court—for the Justices may be unhappy with the Third Circuit panel majority’s approach of reiterating its prior decision, while emphasizing certain points it made earlier even more, in light of Fox, rather than altering its approach with Fox in mind.

Scholars’ Amicus Brief Controversy Reflects the Evolving Relationship Between the Bench and the Legal Academy

Justia columnist and Cornell law professor Michael Dorf comments on the evolution and role of the “scholar brief.” A scholar brief is an amicus (friend-of-the-court) brief submitted to a court—usually, the U.S. Supreme Court—by a law professor acting in his or her role as scholar, rather than advocate. Dorf notes that a column in The New York Times recently pointed to Harvard Law Professor Richard Fallon’s article draft questioning the value of scholar briefs, by suggesting that they are very often not particularly scholarly. In this column, Dorf considers why scholars’ amicus briefs have proliferated recently, and what light that proliferation sheds on the evolving relationship between the bench and the legal academy. In particular, Dorf connects the proliferation of scholar briefs to the increasing divide between legal scholarship in the academy, and the more practical work of the courts, including the Supreme Court. And yet, he notes that the academy’s work—contrary to the claims of some—actually does continue to have relevance to courts, in part by showing how disciplines such as economics and psychology can better illuminate the workings of the law.

The Supreme Court’s First Ruling of the New Term, Cavazos v. Smith: Supreme Court Annoyance, The Ninth Circuit, and Summary Reversals

Justia columnist and U.C., Davis law professor Vikram David Amar comments on a recent, rare Supreme Court summary reversal. A summary reversal occurs when the Court summarily grants review and then reverses the federal circuit court’s decision without the benefit of full written briefs and oral arguments. In this instance, Amar suggests that the Court may have opted for summary reversal in light of its apparent annoyance with the U.S. Court of Appeals for the Ninth Circuit. In a criminal case in which a grandmother was accused of shaking her grandson to death, her defense was that the child died, instead, of Sudden Infant Death Syndrome. The Ninth Circuit sided with the grandmother, and reversed the conviction. The Supreme Court then twice directed the Ninth Circuit to reconsider its reversal, but the Ninth Circuit twice reaffirmed that reversal. Amar suggests that Supreme Court annoyance with the Ninth Circuit, which is the subject of a disproportionate number of summary reversals, may have led the Supreme Court, this time, to opt for summary reversal in this case, as well.

An Update on the Fisher v. University of Texas Affirmative Action Case, and the Procedural Issue That Might, But That Need Not, Complicate Things For the Supreme Court

Justia columnist and U.C. Davis law professor Vikram David Amar comments on an interesting case about affirmative action, in which U.S. Supreme Court review is being sought. As he explains, the case asks the question whether a rejected applicant who challenges an affirmative-action program as unconstitutional must prove that, without the affirmative-action program, he or she would have been admitted. Focusing on two key prior Supreme Court cases, Amar notes that there is another possible standard to be applied here—one under which the applicant would not need to show that he or she would have been admitted under the program, but would simply need to assert that he or she had applied, and thus that he or she had been harmed by being considered under an unconstitutional set of rules. Carefully parsing the Court’s precedents, Amar considers whether ambiguous prior decisions are best seen as involving substantive or jurisdictional issues.

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 and a Professor of Law at The George Washington U... 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. Befo... 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 country’s leading church-state scholars and the Fox Professor of Pra... 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... more

Lesley Wexler
Lesley Wexler

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