Analysis and Commentary on Courts and Procedure
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.”

What’s So Odd About A-Rod Playing Baseball Pending Appeal? Nothing. Courts Allow It All the Time

Justia columnist and Cornell law professor Michael Dorf points out that, in allowing Alex Rodriguez to continue to play baseball despite charges that he violated rules forbidding the use of performance-enhancing drugs, Major League Baseball is simply doing what U.S. trial courts typically do: Even after coming to a judgment, they suspend that judgment pending appeal. Moreover, Dorf argues that the case for permitting A-Rod to play pending appeal is actually stronger than the case for suspending other sorts of judgments. Dorf also explains why the decision whether to suspend a judgment pending appeal can be complicated and controversial, illustrating the point by citing the Proposition 8 litigation.

Why the Proponents of California’s Same-Sex Marriage Ban Are Unlikely to Succeed in Getting the California Supreme Court to Enforce Proposition 8: Part One in a Two-Part Series on What Should Happen to Same-Sex Marriage in California after Hollingsworth v. Perry

In Part One of a two-part series of columns, Justia columnist and U.C., Davis law professor Vikram David Amar explains why the Prop. 8 proponents are very unlikely to get the California Supreme Court to enforce Prop. 8 in light of the U.S. Supreme Court’s related ruling, although they are trying to do so with various gambits nonetheless. Amar describes the proponents’ strategies and explains why they seem doomed to fail. (Part Two of this series will appear here on Justia on August 2.)

The Petition for Immediate Supreme Court Review of a Foreign Intelligence Surveillance Court Order Raises Thorny Procedural Issues

Justia columnist and Cornell law professor Michael Dorf builds on a recent column by fellow Justia columnist and former counsel to the president John Dean, discussing the substantive privacy issues raised by a recent petition to the Supreme Court seeking review of a top-secret order by a federal judge sitting in his capacity as a Foreign Intelligence Surveillance Court, who ordered Verizon to turn over call logs of all calls in which at least one party was in the United States; and forbade Verizon from informing its customers that their phone activity (though not the content of their conversations) would be shared with the government in this way. The order, notably, came to light only because Edward Snowden disclosed it. How will the legal arguments that the controversy has raised strike the Supreme Court's Justices? Dorf emphasizes that before we can know the answer, the Court must, of course, decide to accept the case for review, and as Dorf notes, there are serious procedural obstacles to its doing so.

Why the Snowden Leak(s) Should Result in a Supreme Court Review of the FISA Court’s Verizon Order

Justia columnist and former counsel to the president John Dean calls on the Supreme Court to act now, after Edward Snowden’s disclosure of the top secret order signed by a Foreign Surveillance Intelligence Act (FISA) court Judge directing Verizon to turn over to the FBI and NSA all call detail records or telephony metadata created by Verizon for communications that occurred wholly within the United States, including even local telephone calls. Dean points out that Snowden’s information has energized those who are committed to protecting our privacy, and that they now are using this new information to head to various courts in order to try to place some controls, via a number of varied lawsuits, on what has been, Dean notes, a time of NSA surveillance gone wild.

What the Supreme Court Should Have Said in the Proposition 8 Case, and How an Important Tweak Would Have Avoided Unnecessary Damage to the Initiative Device

Justia columnist and U.C., Davis law professor Vikram Amar comments on initiative-sponsor standing and its role in the Supreme Court’s Proposition 8 case. Amar deems the High Court’s invocation of such standing both attractive and hazardous, and explains why that is the case. He also notes that an appealing middle path was ignored here: A state should be free to authorize sponsors to defend initiatives (in a way that federal courts will accept), but the authorization has to be done carefully and in a fashion that the voters can see.

Seven Ways of Looking at Kiobel v. Royal Dutch Petroleum and the Supreme Court Under Chief Justice John Roberts

Justia guest columnist and Touro Law Center professor Rodger Citron analyzes the Supreme Court's decision in the Kiobel case, which concerned the scope of the Alien Tort Statute (“ATS”), a federal statute relied upon by lawyers asserting claims of human rights violations. In particular, Citron focuses on how Kiobel fully illustrates the judicial philosophy of Chief Justice Roberts. In addition, he offers seven different ways of looking at the decision.

The Troubling Emergence of Novelty-Skepticism on the Supreme Court

Justia columnist and Cornell law professor Michael Dorf isolates an interesting, but also troubling, pattern in the Supreme Court’s thinking, which he calls novelty-skepticism. Dorf notes that novelty-skepticism cuts across doctrinal areas, and defines it as a recent tendency of the Justices to presume that novel forms of legislation are unconstitutional merely in light of their novelty. Dorf offers examples of novelty-skepticism from recent decisions, and urges that the Court ought to give up its novelty-skepticism, for sometimes a new kind of law can be entirely constitutional, and in general, there is no good reason that a new law should have to jump constitutional hurdles that are higher than those that more familiar laws have had to scale.

Supreme Court’s Ruling in Arlington v. FCC Highlights Debate Over the Meaning and Future of Chevron Deference Doctrine in Administrative Law

Justia columnist and U.C., Davis law professor Vikram David Amar comments on a very recent Supreme Court administrative law opinion, Arlington v. FCC. First, Amar explains the key doctrine of Chevron deference, which was established in an earlier Court precedent, and was central here. He also comments on the Court’s rejection of an interpretation of the doctrine that would have significantly narrowed it. Finally, Amar also discusses the contrasting views of the concurring and dissenting opinions in the case.

If the Supreme Court Decides the Proposition 8 Sponsors Lack Standing, What Will Happen to Same-Sex Marriage in California? Part Two in a Two-Part Series of Columns

In Part Two of a two-part series of columns regarding legal issues relating to Proposition 8, Justia columnist and U.C., Davis law professor Vikram Amar comments on various scenarios relating to the Proposition that may or may not come to pass. The scenarios include a number of different ways in which Judge Walker’s injunction might be read.

Precisely What Will, or Should, Happen to Same-Sex Marriage in California if the Supreme Court Finds in Hollingsworth v. Perry That the Proposition 8 Sponsors Lack Standing? Part One in a Two-Part Series of Columns

Justia columnist and U.C., Davis law professor Vikram David Amar discusses what the legal consequences may be if the sponsors of California’s Proposition 8, the ban on gay marriage, are found by the Supreme Court to lack standing—that is, the legal right—to defend the Proposition. Amar comments on both what should, and what might, happen in that eventuality.

Two Recent Supreme Court Cases Sow Confusion About the Standard for Certifying Class Actions

Justia columnist and Cornell law professor Michael Dorf comments on two recent Supreme Court cases that raise complicated and interesting issues regarding class action certification. Dorf explains the holding in each case, and addresses the interesting way in which the substantive merits of the cases and their procedural posture as class actions intertwine.

The Constitution and Punitive Damages: A Ten-Year Anniversary Discussion of State Farm v. Campbell

For the ten-year anniversary of the Supreme Court’s decision in State Farm v. Campbell, Justia columnist and attorney David Kemp provides an overview of the Court’s jurisprudence on the constitutionality of punitive damages in civil lawsuits. He first explains the role of punitive damages in civil lawsuits and then goes on to discuss nine major Supreme Court cases dealing with punitive damages in different manners. He predicts, based on the pattern of punitive damages cases that have come before the Court in years past, that the Court will hear another such case in the not-so-distant future.

Serving Foreign Defendants via Facebook: Is A New York-Based Federal District Court’s Decision a Sign of the Times?

Justia columnist and attorney David Kemp discusses a judge’s recent ruling that permitted the Federal Trade Commission to issue service of process on foreign defendants via email and Facebook. Kemp summarizes the facts of the case and the judge’s reasoning and provides a brief overview of the requirements of service of process. He argues that the ruling, while ostensibly narrow, may have broader implications for the use of Facebook in serving foreign defendants.

The First of Many Expected Five-Four Rulings at the Supreme Court this Term: Clapper v. Amnesty International USA Rejects Plaintiffs’ Standing to Challenge Foreign Surveillance

Justia columnist and U.C., Davis law professor Vikram David Amar comments on the recent Supreme Court ruling in the Clapper case, which raised the question whether Amnesty International USA and other plaintiffs had standing to go to court to challenge a law passed by Congress in 2008 that permits the federal government to undertake additional surveillance and information-gathering with respect to persons outside the United States. In a 5-4 ruling, the Court held that the plaintiffs lacked standing to challenge that law; Amar explains the reasoning of the majority and that of the dissent, respectively.

The Supreme Court Takes on A Case Regarding “Arising Under” Jurisdiction: A Prediction as to How the Court Will Resolve Gunn v. Minton

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.

Does BLAG Have Standing in the Defense of Marriage Act (DOMA) Case in Front of the Supreme Court?

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.

Dealing With Aaron Swartz in the Nixonian Tradition: Overzealous Overcharging Leads to a Tragic Result

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.

Is the Supreme Court Ducking the Same-Sex Marriage Question, and If So, Is That Wrong?

Justia columnist and Cornell law professor Michael Dorf comments on two questions involving same-sex marriage that the Supreme Court may or may not duck: First, there is the question whether Section 3 of the Defense of Marriage Act (DOMA)—which defines marriage under federal law as opposite-sex marriage, even when state law recognizes same-sex marriage—is constitutionally valid. And, second, there is the question whether California violated the Constitution when it enacted Proposition 8, which prospectively eliminated the possibility of same-sex marriage, and thereby nullified an earlier California Supreme Court ruling that had found a state-constitutional right to same-sex marriage. Dorf considers why the Justices might—or might not—see the cases that raise these questions to be appropriate vehicles for Supreme Court review, and notes what might happen next if the Court does not take up a DOMA case.

A Federal Appeals Court Invalidates a Military Commission Conviction: Paying the Price for Circumventing the Civilian Justice System

Justia columnist and Cornell law professor Michael Dorf comments on a recent decision by a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit, throwing out the conviction of Salim Ahmed Hamdan, a Yemeni who was captured in Afghanistan in 2001. Dorf chronicles Hamdan’s long legal journey, and the repercussions that it has had for U.S. law. Dorf also explains that while the most recent decision regarding Hamdan is narrow, it nevertheless carries symbolic significance, casting doubt on the Bush Administration’s and the Obama Administration’s respective, and similar, detainee policies.

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... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan, an economist and legal scholar, holds the James J. Freeland Eminent Scholar... more

Sherry F. Colb
Sherry F. Colb

Sherry F. Colb is the C.S. Wong Professor of Law at Cornell University. Colb teaches courses in... more

John Dean
John Dean

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

Michael C. Dorf
Michael C. Dorf

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

Marci A. Hamilton
Marci A. Hamilton

MARCI A. HAMILTON is the Robert A. Fox Leadership Program Professor of Practice, and Fox Family... more

Joseph Margulies
Joseph Margulies

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

Lesley Wexler
Lesley Wexler

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