Analysis and Commentary on Philosophy and Ethics

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.

Facebook’s New “Organ Donor” Feature: Many Applaud It, but Some Raise Possible Concerns About Protecting Private Health Information

Guest columnist and Justia writer and editor David Kemp comments on a new development on Facebook: users’ ability to add the fact that they have become organ donors as a “Life Event” on their Timelines. Kemp notes that the reason for this development is to encourage organ donation after death—and that it’s been very successful in doing so. He also comments on three likely reasons why Facebook chose this particular cause, as opposed to all the other causes that it might have promoted. While applauding the feature’s benefits, Kemp also considers some risks connected to the use of Facebook in this way—including the risk that other medically-related applications may lead to the disclosure of private health information, which could potentially implicate federal privacy laws. (Already, the “Life Events” application, Kemp points out, can reveal a broken bone or weight loss.) Ultimately, Kemp raises the question whether Facebook may evolve in such a way as to provide not just social networking, but also social engineering.

The Story and Legacy of the Greatest Judge of His Era, Henry Friendly

Justia columnist and former counsel to the president John Dean comments on the imminent publication of a biography by David M. Dorsen of esteemed jurist Henry Friendly, Henry Friendly: Greatest Judge of His Era. As Dean explains, Judge Friendly served on the U.S. Court of Appeals for the Second Circuit from 1959-1986, and his decisionmaking drew the highest praise from fellow judges and Justices. Dean provides an overview of the biography’s coverage, and notes that its emphasis is not on what Friendly decided, but rather on his decisionmaking process. Dean contends that this work—the product of six years’ research and hundreds of interviews—is not to be missed by either the serious scholar or the general reader. (Dean notes, for full disclosure, that he is a friend of Dorsen’s, but also quotes high praise for the book from Judge Richard Posner and others.)

Why Interdisciplinary Legal Scholarship Is Good for the Law, the Academy, and Society at Large

Justia columnist, George Washington law professor, and economist Neil Buchanan responds to some of the common criticisms of interdisciplinary legal scholarship, defending such scholarship on the ground that it makes a valuable contribution. He begins by noting how legal scholarship has changed over the years, beginning around the 70’s, from a field that primarily summarized legal developments, to one that primarily describes how the law could and should change. As a result of this evolution, Buchanan argues, it made sense to bring in other academic disciplines to assist law professors who were interested in improving policies, and who wanted to draw from the relevant schools of thought in framing their policy recommendations and developing their ideas. There has been nostalgia on the part of some—and, especially, some judges—for legal scholarship the way it used to be: primarily focused on describing the law, not improving it. But Buchanan argues that this nostalgia, while understandable, is misplaced, for combining legal expertise with expertise in another field can importantly further the debate on important policy matters. Some questions, Buchanan notes, are truly interdisciplinary and for these, interdisciplinary scholarship is not just useful, but vital.

Human Rights Scholars and Human Rights Professionals: Time to Talk?

Justia columnist and Hunter College Human Rights Program Director Joanne Mariner describes a schism between human rights scholars, on one hand, and human rights professionals, on the other. On the good side, Mariner notes, both scholarship and practice in human rights have thrived over the last two decades—and yet, she contends, there is a troubling disconnect between the two. Mariner’s own survey found that human rights professionals see a wide—even, to some, “enormous”—gap between theory and practice, and rarely read academic articles on human rights. The professionals complained, among other points, that the academics were encouraged to come up with counterintuitive theories, when often the intuitive ones were far closer to the mark. In turn, Mariner notes, the academics might rightly charge that the professionals fear that too much analysis of a problem will impede or delay effective action, as in “Hamlet,” when in fact sustained thought about a human rights issue could bear significant fruit. She thus calls on the two groups to engage more deeply with each other’s work, to the benefit of both. Finally, Mariner offers some specific suggestions as to how such engagement could effectively occur.

Should Jurors Take a “No Internet” Pledge? The Merits of One Judge’s Simple Proposal

Justia columnist and U. Washington law professor Anita Ramasastry comments on the current problem of jurors’ doing Internet searches relating to the trials on which they serve—sometimes, even if the jurors have been directly admonished not to do so. Ramasastry describes an interesting approach to the problem, used by Judge Shira Scheindlin of the U.S. District Court for the Southern District of New York: Judge Scheindlin asks jurors to sign a written pledge not to use the Internet to research the case on which they sit. Ramasastry also describes other judges’ attempted solutions to, and experiences with, the jury-Internet-use problem—which has caused a number of costly mistrials—and the model jury instructions on the topic. She notes, however, that researchers are finding that virtually nothing will stop jurors from doing their own Internet research regarding the cases on which they sit—leading some to suggest that it may be more effective to limit, but not ban, jurors’ Internet research, as a ban will inevitably be ignored.

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

David S. Kemp
David S. Kemp

David S. Kemp is an attorney and managing 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