For Election Day, 2012, we have put together several resources to help our readers cast an informed vote. Use these resources as a guide for where to vote and what to take with you. Happy Voting!
Justia columnist and former counsel to the president John Dean comments on the life and times of former Senator George McGovern, who recently passed away. In addition to chronicling the key events of McGovern's life, McGovern’s passionate campaign to eradicate hunger, and his own friendship with McGovern, Dean also comments on the perhaps unlikely friendship between McGovern, a Democrat, and Republican Senator Barry Goldwater—the kind of cross-party bond, forged to serve the good of the nation, that Dean notes that we are, unfortunately, unlikely to see today.
Justia columnist and attorney David Kemp comments on the now-notorious false tweets regarding Hurricane Sandy sent by Shashank Tripathi (Tripathi is a hedge fund analyst and was previously the campaign manager for Republican Christopher Wight's Congressional campaign; he has since been fired.) While many have excoriated Tripathi's tweets as unethical, Kemp addresses the separate question whether they can be penalized consistent with the First Amendment. Thus, Kemp covers past and current Supreme Court precedents that relate to other instances of false and/or damaging speech.
In the first in a two-part series of columns, Justia columnist and Cornell law professor Sherry Colb comments on the constitutional issues raises by dog sniffs, in light of two cases in which the U.S. Supreme Court will address the issue. As Colb explains, one case asks whether a dog sniff is itself a search for Fourth Amendment purposes, and the other asks what is the evidentiary significance of a dog’s positively alerting after a drug sniff for narcotics. Colb examines some of the main factors that may prove important in the cases, and suggests that the Court’s analysis will be significantly improved if it takes into account the differences between a living, breathing dog and a mere evidence-gathering machine.
Justia columnist and Hofstra law professor Joanna Grossman comments on a flagrant case of sexual harassment in a grocery store, which eventually led to litigation that came before the U.S. Court of Appeals for the Second Circuit. The case, as Grossman explains, arose from the store owner’s fiance’s habit of touching sexually, and otherwise sexually harassing, the store’s employees, who were mostly teenage girls. The girls complained, but nothing was done. Ultimately, the store was found liable for sexual harassment. Grossman explains the steps necessary to win such a case, and discusses the question of the scope of the remedy that was imposed upon the store in this case. She also notes that in such cases, both legal remedies (money damages) and equitable remedies (court orders to do or refrain from doing something) are appropriate.
Justia columnist and attorney Julie Hilden comments on a recent school speech case from Missouri in which twin brothers, both high-school juniors, created a blog that derogated fellow students in racist and sexist ways. Hilden argues that it’s no surprise that the brothers were suspended from their school and required to continue their studies elsewhere, given that the U.S. Supreme Court’s decision in Tinker v. Des Moines Indep. Comm. Sch. Dist. allows students to be punished when substantial disruption foreseeably results from speech that they directed at their school. She also notes that it is unlikely that the U.S. Supreme Court would grant review in a case like this one, and describes the kind of school-speech case that might, conversely, be a good candidate for the Court’s review.
Justia columnist and U.C., Davis law professor Vikram David Amar comments on developments relating to the National Popular Vote (NPV) movement and other election reform proposals. The essential idea of NPV is to get various states to sign an agreement requiring each signatory state to cast its electoral college votes not for the candidate who garnered a plurality of popular votes in that state, but rather for the candidate who won the most popular votes nationally. This system, with enough signatories, would ensure that the winner of the Presidential contest would always be the person who had won the largest number of votes from individual voters nationwide. It would thus solve the problem of candidates’ focusing almost exclusively on “battleground states” in their campaigns, and would ensure that each American’s vote truly had equal weight in presidential elections. The importance of the issue is underlined by the fact that Gore won more votes in 2000, but lost the election, and this year, Romney may do the same.
Justia columnist, George Washington law professor, and economist Neil Buchanan argues that the GOP leadership’s current stances are—as Nicholas Kristof also characterized them recently in The New York Times—sociopathic. Buchanan cites examples including the position that illegal aliens should be made so miserable that they will “self-deport,” even though their children too will suffer; and the position that aid to America’s poor should be sharply curtailed, even though that, too, would harm innocent children, with even children’s nutrition programs on the list to be cut. Buchanan takes issue, too, with proposed Romney/Ryan programs that would, he argues, only intensify social inequality, including ones targeting healthcare for the elderly.
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.
Justia columnist and U. Washington law professor Anita Ramasastry comments on a recent court decision in which two African-American men challenged what they alleged was differential treatment in their auditions for the reality show The Bachelor. With neither The Bachelor nor its sister show, The Bachelorette, ever having had an African-American lead, the plaintiffs saw evidence of racial discrimination when the show, they allege, gave them shorter interviews than other would-be contestants received, and did not ultimately select them to join the show’s cast. Ramasastry explains why the plaintiffs lost in court: the First Amendment protects casting decisions, whether by dramas, comedies, or reality shows. She notes, though, that the lack of court relief here doesn't mean the men were wrong on the merits, but only that they will now need to find another avenue, such as protesting and/or continuing to speak out, in order to make their point.
Justia guest columnist and Touro Law Center professor Rodger Citron comments on the recent Supreme Court argument in an important case centering on the Alien Tort Statute (ATS). As Citron explains, the ATS, enacted by the first Congress in 1789, authorizes federal courts to hear “any civil action by an alien for a tort only, committed in violation of the laws of nations or a treaty of the United States.” But can the ATS be applied to conduct based outside the U.S.? As Citron explains, that is the issue that the conservative Justices brought up at oral argument. Citron predicts, however, that in the end the Court will not limit the ATS’s reach to conduct that occurs within the United States, but that the Court will affirm the lower court’s dismissal of the plaintiffs’ case.
Justia columnist and attorney David Kemp comments on the recent decision by the U.S. Court of Appeals for the Second Circuit striking down Section 3 of the Defense of Marriage Act (DOMA), which defines marriage, for federal purposes, as being between a man and a woman. Kemp discusses why the Second Circuit held that the Constitution’s Equal Protection Clause required the application of intermediate scrutiny. Kemp also notes that the Second Circuit was the first court facing this issue not to also analyze the issue using a lower level of scrutiny. In addition, he discusses a number of other cases decided by courts across the country, that have confronted the issue of what level of scrutiny is proper for classifications based on sexual orientation—and why such cases may well lead to eventual Supreme Court review.
Justia columnist and former counsel to the president John Dean notes that Mitt Romney attended both law school and business school, and contends that Romney forgot to think like a lawyer at the recent Hofstra debate. Before commenting specifically on Romney, Dean addresses the controversy about whether lawyers think differently than other people. One position is that thinking like a lawyer is simply thinking clearly and critically; the other position is that thinking like a lawyer is a unique skill that only those who have learned that skill in law school possess, in part because lawyers are taught to follow past precedent, even if they think it is wrongly decided—which is not the case in other professions. Dean notes that lawyers must also meet the requirements of the bar, and follow the jurisdiction’s Rules of Professional Conduct. While Romney is an attorney, Dean argues, he is much more of a businessman, and Dean notes that GOP businessmen have, over history, fared poorly in the Oval Office, and cites both Herbert Hoover and George W. Bush as examples.
Justia columnist and Cardozo law professor Marci Hamilton comments on an incident in Pakistan in which a 14-year young woman was shot by the Taliban because she voiced her view that girls should be educated; and an incident here in the U.S. where the American Family Association—which is characterized by the Southern Poverty Law Center as a hate group—has essentially come out in favor of the bullying of homosexual children on Mix It Up at Lunch Day, which is meant to break up cliques, even if just for one day. Hamilton argues that the first incident shows the need for the international recognition of civil rights, and of the rule of law, and the second incident involves a particularly repellent form of homophobia that has no place in our public schools. Each incident is made all the worse, Hamilton suggests, because children are the victims. Hamilton reminds us, too, that we are fortunate here in the U.S. to have the benefit of the First Amendment's Establishment and Speech Clauses.
Justia columnist and Hofstra law professor Joanna Grossman comments on the second presidential debate, and especially on Mitt Romney’s now-famous comment about “binders full of women,” which has now become an Internet meme. Grossman argues that the comment reveals Romney’s dated and uninformed view of women in the workplace. She also notes that Romney, while avoiding the question about pay inequity that led to the “binders” comment, revealed that he believes that the only workers who need flexible schedules are women, apparently due to the assumptions that all women have children, and that only women perform child care.
Justia columnist and Cornell law professor Michael Dorf explains the origin and meaning of the concept of having a “critical mass” of minority students in the affirmative action context, and the role that this concept played in a recent Supreme Court oral argument relating to affirmative action at the University of Texas. Without a critical mass of minority students, it has been argued, such students will feel isolated in class and on campus, and there may be little diversity within the group of minority students itself. For these reasons, the University of Texas gives such students a special “plus factor” in admissions. Dorf explains how both conservatives and liberals on the Court have come to place what he argues is excessive weight on the “critical mass” concept, when it comes to affirmative action in education. He also summarizes the conservative Justices’ critique of the concept, but contends that that critique is itself flawed.
Justia columnist and Hofstra law professor Joanna Grossman discusses the law relating to paternity fraud—that is, to instances when women falsely claim that one man has fathered their child, when in fact, the child's father was another man. Grossman focuses on a Tennessee case that fits that very scenario. There, the man who was falsely led to believe that a child was his, and who consequently paid child support for that child, sued his ex-wife for damages, and won on his claim for intentional misrepresentation of paternity. As Grossman notes, a few other states take approaches similar to Tennessee's. Grossman also covers the approach that the Uniform Parenthood Act (UPA) takes to this issue.
Justia guest columnist and Cornell Law Visiting Fellow Antonio Haynes comments on a recent controversy in which parents of two public school students did not object to their daughters undergoing corporal punishment (specifically, paddling), but did object to the punishment being carried out by men, rather than women. Haynes points out that, upon closer examination, the issue here is not actually about sex, but about sexual orientation; the parents assumed the males conducting the spankings were straight and thus thought that they might find performing the spankings erotic. Noting that corporal punishment in the schools has not been ruled by the Supreme Court to be unconstitutional, and that 19 states still allow it, Haynes suggests that issues like who may administer a spanking tend to distract us from asking deeper questions such as why we still accept corporal punishment in our schools, and why—if we trust school officials to paddle students—we do not also trust them not to harbor erotic motives while doing so.
Justia columnist and attorney Julie Hilden comments on the recent controversy over a Philadelphia public school geometry teacher's deriding student Samantha Pawlucy for wearing a Romney/Ryan T-shirt. The incident blew up into a full-blown controversy, with Romney personally calling the girl and speaking with her parents. Hilden parallels the incident to the key 1969 Supreme Court student-speech case, Tinker v. Des Moines Ind. Comm. Sch. Dist., in which students near Pawlucy's age wore black armbands in school in order to protest the Vietnam War. Hilden also argues that Pawlucy’s is an easy case, and that she would have a much harder First Amendment case, had the incident occurred in a History or Social Studies class. Finally, Hilden questions whether this was a case of teacher/student bullying, and suggests that teachers and students alike should be required to learn basic school-speech First Amendment tenets.
Justia columnist and U.C., Davis law professor Vikram Amar takes strong issue with Justice Scalia’s recent remark that certain constitutional questions are “easy”—including questions relating to the constitutionality of the death penalty, laws restricting abortions, and limits on the rights of gays and lesbians to engage in homosexual activity. Amar argues that even if one uses Scalia’s own interpretive method of originalism, the answers to such constitutional questions are far less easy than Scalia claims them to be; and Amar cites a number of interesting examples to prove his case. Amar also contends that a full approach of originalism would go much further than the examples Scalia gives, would destroy important and basic contemporary Court precedents, and thus would seriously disrupt constitutional law as we know it. Finally, Amar contends that the counterarguments that Scalia might make to the objections that could be raised regarding his views would only get him into deeper trouble analytically.
