Justia columnist and Cornell law professor Michael Dorf comments on Justice Thomas’s views on the proper approach to cases raising issues regarding the Constitution’s separation of church and state. Dorf contends that Justice Thomas is correct to observe that the Court’s current test for when the government is unconstitutionally endorsing religion, in violation of the Establishment Clause, is so vague that the way that lower courts and even the Supreme Court will rule, when applying the test, is highly unpredictable. Justice Thomas has accurately pointed out, for example, that a crèche displayed on government property violates the Establishment Clause, except when it doesn’t; a menorah displayed on government property violates the Establishment Clause, except when it doesn’t; and a cross displayed on government property violates the Establishment Clause, except when it doesn’t. Nevertheless, Dorf contends that Thomas, while mounting a biting critique of the Court’s current endorsement test, does not offer a superior alternative—and points out that, given the numerous Justices who’ve tried to solve this thorny problem over the years, there may actually be no superior alternative.

Justia columnist and U. Washington law professor Anita Ramasastry comments on the numerous scandals relating to bribery and corruption in international sports competitions over the past decade, and a recent proposal for how to stop such scandals from occurring. Ramasastry cautions that since the proposal for reform comes from the Fédération Internationale de Football Association (FIFA), which has had its own scandals—even quite recently—we may need to take a “wait and see” approach. Ramasastry also notes that the substance of FIFA’s reforms remains vague, and needs to be further particularized. Finally, she suggests that FIFA is far from the only international sports organization that needs to be reformed. Other such organizations, she contends, should also heed the call for greater transparency, accountability, and integrity, all of which should increase public confidence in the fairness and authenticity of international sports competitions.

Justia columnist and Hofstra law professor Joanna Grossman comments on the Herman Cain sexual harassment scandal from a legal, rather than political, point of view—based on what is known so far, and on Cain’s own comments regarding sexual harassment. Grossman recalls Cain’s negative remarks about the Civil Rights Act of 1991, which strengthened discrimination law, and she explains in detail how discrimination law, and sexual harassment law in particular, have improved the situation of women in the ensuing years. She also takes issue with Cain’s suggestion that speaking to someone cannot be sexual harassment—pointing out that if the words that are spoken connect job benefits with sexual favor, speaking them is the very epitome of sexual harassment. In addition, Grossman notes that harassment by someone who is the head of a company, as Cain has been, triggers different and harsher rules and heightens the risk to the company. Finally, Grossman questions Cain’s claims that he was adept at line-drawing in this difficult legal area, and may only have had a problem with “over-complimenting” women. She notes, too, that the law sees things not from the point of view of the alleged harasser, but of the victim and of a reasonable person in the victim’s place. Worst of all, Grossman, argues, is Cain’s contention that the claims against him were fabricated; fabrications, she points out, are extremely rare in this area of law, making the multiple claims against Cain especially damning.

Justia columnist and former counsel to the president John Dean comments on the political aspect of the ongoing scandal regarding allegations of sexual harassment by presidential candidate Herman Cain. Dean notes that Cain’s initial, ineffective response to the allegations was to stonewall, but that he rapidly switched strategies and commented on the allegations. This second strategy, Dean notes, was also ineffective. Dean characterizes Cain’s current strategy as a mix of two strategies used by other public figures: Supreme Court Justice Clarence Thomas and California Governor Arnold Schwarzenegger (when he was a candidate). Dean notes that Thomas attacked the messenger and impugned her motive, while denying the charges against him, despite the strong evidence supporting them. In contrast, he explains, Schwarzenegger—when his behavior toward women (including groping) became a campaign issue—half-apologized to the women at issue, and enlisted his wife’s aid in restoring his reputation. Dean believes Cain is now hoping the story will go away, but predicts that—to the contrary—the story will play out as long as Cain is a viable candidate, and until it finds its consequences. Cain, Dean suggests, will seem to be winning over the scandal at first, before a media-hating public, but will lose out in the end, due to a combination of the scandal and an otherwise very poorly run campaign.

Justia columnist and Cardozo law professor Marci Hamilton comments on a presentation given last week to a Subcommittee on the Constitution of the Judiciary Committee of the United States House of Representatives, by the Rev. William C. Lori, the Catholic Bishop of Bridgeport, CT, and the Chair of the United States Conference of Catholic Bishops’ newly-instituted “Ad Hoc Committee on Religious Liberty.” Hamilton argues that Lori’s remarks displayed insufficient respect for the Constitution’s separation of church and state. In particular, Hamilton discusses Lori’s remarks and the role of church/state separation as it relates to the availability of contraception and sterilization, and particularly the requirement that they be covered by private health insurance companies except insofar as certain employers’ religion forbids it. In addition, she discusses Lori’s position on government services relating to human-trafficking victims, which holds that religious service providers would not have to offer contraception and abortion—even to a trafficking victim who suffered a rape. In addition, Hamilton takes strong issue with Lori’s opposition to the federal government's decision to require that AIDS programs offer contraception (both condoms and other birth control) due to their proven efficacy in stopping the spread of disease. Hamilton acknowledges that, of course, religious institutions and institutions may act in these areas, but emphasizes that if they receive government funds, they must also follow government policy. Overall, Hamilton argues, the Church should focus on genuine religious liberty violations, and not issues like these.

Justia columnist and Cornell law professor Sherry Colb comments on a double jeopardy case that the Supreme Court will hear during this coming term. As readers may know, the Constitution’s Double Jeopardy Clause provides, “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” The Clause’s application is simple in some scenarios—for instance, if a defendant is tried for murder and acquitted, and yet the very same prosecutor then brings the same murder charges against the same defendant again. However, Colb points out that the double jeopardy case that the Court will address is far from simple. There, the question is whether the Double Jeopardy Clause applies to the following scenario: A defendant’s jury has announced to the judge that it cannot reach a verdict on a lesser included offense, but it has also voted unanimously to find the defendant “Not guilty” of two greater offenses. (A lesser included offense is a less serious version of another, greater offense.) The judge refused to allow the two “Not guilty” verdicts to be recorded, and declared a mistrial. Can the defendant then be re-tried on the greater offenses? Colb considers this interesting and complicated constitutional question.

In this column, the first in a two-part series, Justia columnist and Hofstra law professor Joanna Grossman discusses the law regarding marriage, and, in particular, the question whether couples whose marriage is performed by a friend who has been ordained for the event by an online ministry, but who has no congregation or other trappings of religious power, have entered into a valid marriage. She notes that in New York, for example, and certain other states, the answer may, in some cases, be no. As part of Grossman’s investigation of the issue, she became a minister of the Universal Life Church (ULC) herself, in order to learn what was required. She also discusses key Mississippi and Virginia cases regarding ULC marriages. In Part Two of this series—appearing on this site in two weeks, on November 15—Grossman will provide a detailed jurisdiction-by-jurisdiction analysis of cases in which the validity of online-minister marriages have been challenged.

Justia columnist and attorney Julie Hilden comments on a bid for U.S. Supreme Court review in a case regarding the First Amendment rights of public school students. The case raises a question that, Hilden contends, the Court will need to answer sooner or later: Under what circumstances, if any, can public schools punish students for off-campus, online speech that occurs outside of school hours? Hilden suggests that the Court should not choose the bullying case on which review has recently been sought as its vehicle for answering this question. Instead, she argues that the Court should focus on some future, simpler case in which a school punishes off-campus, online speech that is not targeted at other students. Hilden suggests that, just as the Court’s seminal school speech precedent Tinker v. Des Moines Indep. Comm. Sch. Dist., had simple facts—involving students peaceably wearing war-protest armbands—so too should the Court’s next school speech case. In particular, she notes that the Court’s taking a case that mixes bullying and off-campus speech would likely lead to a result that slights First Amendment rights even in future cases where no bullying is present.

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.

Justia columnist, George Washington law professor, and economist Neil Buchanan argues that calls for the abolition of the Fed, and a return to the gold standard, are misguided. While Buchanan’s views on the Occupy Wall Street protests are mostly positive, he suggests that the movement would be better off dropping its anti-Fed rhetoric. While the Fed has its flaws, Buchanan argues, its role in our economy is vital and its track record is far, far stronger than that of the gold standard—which has proven historically to be a disaster. Buchanan notes that the Fed is unpopular in part because it is undemocratic, but he explains two key reasons why it needs to be that way. He also explains why attacks on the Fed often come from the left (for instance, from Occupy Wall Street), rather than the right (with the exception of Ron Paul). Yet, over its history, Buchanan argues, the Fed has actually done most things right, and thus, while the left’s critique of the Fed makes some valid points, it is very overstated. In addition, Buchanan contends that it is not the Fed, but rather Congress and the White House, that should be blamed for the failure to remedy the economy’s current course—and that the adoption of the gold standard would only make our current situation much worse, and ironically, would lead to the creation of a “Gold Fed.”

Justia columnist and Hunter College Human Rights Program Director Joanne Mariner comments on the death of Qaddafi. She notes that Libyans generally do not seem bothered by the fact, or the gruesome manner, of Qaddafi’s death, in light of the atrocities he had perpetrated upon their people. In addition, Mariner raises the important and timely question of what we can now expect from Libya's interim government. She notes that if the killing of Qaddafi was the result of the new government’s inability to control its troops, then that is very worrying indeed for Libya’s future—perhaps even more worrying than a scenario in which the new government directed Qaddafi's killing. Mariner also warns that while Qaddafi is dead, Libya’s human rights problems are very much alive—and thus, the impartial investigation into Qaddafi’s death that ought to now be conducted may be nothing more than a faint hope.

Justia columnist and U. Washington law professor Anita Ramasastry comments on several possible ways in which users can respond when a website changes its Terms of Service (ToS) without their consent. She focuses in particular on the recent, controversial ToS changes by Sony regarding the Playstation, and by Electronic Arts, which has a new online gaming service, Origin. These ToS changes and others like them have sparked interesting responses, as Ramasastry explains: First, the website GamersOptOut.com makes it easier for users to opt out of these ToS changes (as the companies’ contracts allow) in a less burdensome way. Second, Kevin Owocki’s TOSAmend applet allows users to submit a proposed revised ToS along with their “I Agree” clicks—but, as Ramasastry notes, it’s unclear what the legal effect of Owocki’s clever applet may be. Finally, a third interesting development in this area, Ramasastry points out, is the Electronic Frontier Foundation’s Terms-of-Service Tracker, which details changes in ToS so that website users can take action.

Justia columnist and Cornell law professor Michael Dorf comments on the law relating to President Obama’s military strategy, which has emphasized air power and surgical strikes, as opposed to the use of ground troops, in a number of contexts. From the raid that killed bin Laden, to the drone strike that killed Anwar al-Awlaki, to air support for Libyan rebels, Obama’s tactical choices have led Dorf and others to scrutinize what seems to be an “Obama Doctrine” regarding the waging of modern war. Dorf notes that Obama is willing in some cases to use unilateral force, though less willing to do so than the second President Bush (who himself may well have been an outlier among recent presidents in this respect). One example, Dorf notes, is Obama’s use of unmanned drones. Dorf covers both the benefits of the Obama Doctrine, such as decreasing American casualties and diminishing America’s role as occupier, and its costs, such as drones’ causing civilian casualties—an important harm in itself that also leads to hatred of America. Finally, Dorf notes that the Obama Doctrine raises a host of significant legal questions that have yet to be resolved.

Justia columnist and former counsel to the president John Dean continues his ongoing series examining the new techniques that are being employed by Republicans to alter the political landscape. In this column, Dean contends that due to Republicans’ tactics, the U.S. Senate no longer operates as our nation’s founders intended. He cites specific examples of the kind of obstructionism that has allowed Republicans to thwart majority will—such as their refusing to allow Democrats’ witnesses to testify based on technicalities; putting “holds” on judicial and executive nominees and on bills; and misusing the filibuster. Dean also takes strong issue with the news media for reporting on such Republican tactics as if they were simply business as usual.

Justia columnist and Hofstra law professor Joanna Grossman comments on how adult adoption—that is, a person’s being adopted by another when that person is already an adult—affects that person’s ability to inherit from his or her original and new relatives, respectively. Grossman focuses in particular on a recent Virginia Supreme Court case in which an adult woman’s being adopted at the age of 53 meant that her niece and nephews were no longer the legal heirs of the woman’s biological sister, who had previously been their aunt. She also explains why adult adoption is typically easy: Unlike the adoption of a child, it comes with no support or other obligations so there is little, if any, court scrutiny. In addition, Grossman explains how adult adoption has been sought by members of gay couples seeking to establish a legal relationship with each other in states where gay marriage is not recognized, with mixed results: New York will not allow such adoptions, but Delaware and other states will. Grossman also describes the trusts-and-estates consequences of adult adoption, in the Virginia case and in other scenarios, and the historic development of the practice. And she reminds potential adult adoptees that while an adoption may open up new inheritance rights, it also may foreclose old ones, with the prior biological family, for the establishment of the new, adoptive family relationship typically means that the old, biological one no longer exists.

Justia columnist and Cornell law professor Sherry Colb comments on a recent case in which a Queens, New York, woman named Barbara Sheehan was acquitted of second-degree murder on the ground that she had acted in self-defense. It was undisputed that Sheehan shot her husband, but the shooting had followed a history of domestic violence he had inflicted upon her. With her two children’s support, Sheehan successful raised the “battered woman’s defense.” In this column, Colb—who, in addition to teaching criminal law and procedure, has had experience with assisting battered women—contends that the Sheehan jury reached the right verdict—arguing that it would be unrealistic to only apply the battered woman’s defense when the woman in question reacts to her battering directly after it occurs. In explaining her position, Colb analyzes the reasons for both the law’s duty of retreat, and its imminence requirement.

Justia columnist and Cardozo law professor Marci Hamilton continues her series on religion and the likely 2012 presidential candidates. This week, Hamilton considers Mitt Romney. To begin, Hamilton comments on Romney’s seeming unease about the history of polygamy of the Church of Jesus Christ of Latter-Day Saints (also known as the LDS Church), in which he has been a religious leader. Hamilton also compares Romney’s speech on how his religion would, and would not, affect his possible future presidency with the similar speech given by JFK regarding his Catholicism and his own possible future presidency—noting interesting differences in the stances taken by JFK and Romney, respectively. Hamilton also considers other aspects of Romney’s record—such as his questionable civil rights record, and certain instances where, she argues, he welcomed the exercise of federal power, even as he claimed to embrace states’ rights, such as when federal measures regarding same-sex marriage and federal healthcare money were at issue. In addition, she notes that Romney’s record on abortion is cryptic, and features some flip-flopping, leaving his true beliefs essentially unknown.

Justia columnist and attorney Julie Hilden comments on a recent First Amendment decision from an en banc panel of the U.S. Court of Appeals for the Ninth Circuit. Hilden explains why nine of the eleven judges voted to strike down an ordinance passed by the city of Redondo Beach, California, that had barred people from standing on the city’s streets or highways and soliciting employment, business, or contributions from drivers or their passengers. She also covers the adamant dissenting opinion of the well-respected Ninth Circuit Judge Alex Kozinski in the case (also joined by Judge Bea), which some observers have found quite puzzling. Hilden contends that the majority’s opinion was very persuasive, but takes issues with the dissent by the typically brilliant and incisive Judge Kozinski.

Justia columnist, George Washington law professor, and economist Neil Buchanan comments on the “Occupy Wall Street” protests. He argues that this new movement should be taken seriously, not just dismissed as a passing fancy. Accordingly, he focuses on the substance of the protesters’ complaints, finding many of their points well-founded—particularly, their points about the inequality of economic and, relatedly, political and media power in the United States. Buchanan argues that such inequalities are damaging not just to the have-nots, but also to society as a whole: Greater degrees of inequality, according to the IMF, lead to slower economic growth. Buchanan also argues that protesters are right to the extent that they are calling for re-regulation of the financial markets. And he cautions that if the “Occupy Wall Street” protesters fairly modest and reasonable proposals for re-regulation and greater social equality are ignored now, the next protest movement we see, along these lines, may be much more dangerous and troubling.

Justia columnist and U.C. Davis law professor Vikram David Amar comments on a case that the Supreme Court will take up this November. As he explains, the case potentially raises thorny questions regarding two important topics: (1) the relationship between Congress and the President with respect to American foreign policy in the Middle East; and (2) the power (or lack of power) of federal courts to weigh in on such matters, pursuant to the Court’s “political question” doctrine. The case, MBZ v. Clinton (that is, Secretary of State Hillary Clinton), involves a 2002 law passed by Congress that, among other things, requires the Secretary of State, upon the request of a citizen or the citizen’s legal guardian, to record the place of birth for U.S. citizens born in the city of Jerusalem “as Israel.” President Bush signed the law into effect, but issued a signing statement to disclaim the legal effect of part of the law he was signing—on the ground that forcing the State Department to record Jerusalem births as being in Israel would impermissibly interfere with the President’s constitutional power to formulate and speak on behalf of American foreign policy. The plaintiffs in the M.B.Z. lawsuit seek to force the executive branch to follow the terms of the statute, notwithstanding the signing statement’s disclaimer. Whether they can do so, Amar explains, depends on whether the case at issue triggers the political question doctrine, under which there are some questions on which even the U.S. Supreme Court cannot rule, on the ground that they are properly resolved by one of the U.S. government’s political branches, rather than by the Court.