Justia columnist and U.C. Davis law professor Vikram David Amar comments on an affirmative action decision from the U.S. Court of Appeals for the Fifth Circuit in which the Supreme Court may well grant review. Amar explains why, if the High Court does indeed take the case, its decision may substantially alter constitutional law relating to affirmative action in the context of educational admissions. In addition, Amar notes that this case, if taken up by the Court, may illustrate the very considerable power that Justice Anthony Kennedy now wields. Amar also provides thorough background to allow the reader to put this case, and the issues it raises, in the context of prior precedents relating to affirmative action in admissions, such as Bakke, Hopwood, Grutter, and Gratz.
Justia columnist, George Washington law professor, and economist Neil Buchanan offers a detailed response to an argument that has been in the news frequently: Billionaire investor Warren Buffett has contended that those with annual incomes above one million dollars should pay significantly more in income tax, and that those with annual incomes above ten million dollars per year should pay even more than that. Many commentators, Buchanan points out, have responded to Buffett’s argument by pointing out that Buffett is free to give away his own riches to the government, if he so chooses—for instance, by foregoing tax exemptions that he would be entitled to claim. But Buchanan offers a set of strong responses to this argument, suggesting that the debate should properly focus on Buffett’s proposal, and not on Buffett himself.
Justia columnist Joanne Mariner, an attorney and the head of Hunter College’s Human Rights Program, comments on the end of Muammar Qaddafi’s rule, and reminds readers that for much of the past decade, the United States actually saw Qaddafi as a friend, rather than an enemy. Mariner points out that during the Bush years, Qaddafi’s human rights violations were not simply overlooked but actually exploited, as Condoleezza Rice, in 2006, encouraged others to see Libya’s leadership as a model to follow. Mariner covers the connection between Libya and the CIA, and Libya and the practice of rendition, and explains how statements, made under torture, from a man who was detained in Libya and elsewhere led to the claim of a relationship between Saddam Hussein and al-Qaeda.
Justia columnist and U. Washington law professor Anita Ramasastry explains some of the options for Libya’s transitional government, when it comes to the country’s oil resources. Ramasastry explains both the traditional premise that successor regimes need to honor previously negotiated sovereign agreements, and the new trend for sovereigns to renegotiate deals entered into by previously corrupt officials—and the legal basis for such renegotiation. She also argues that the transitional government, and its future governments, should opt for greater transparency in any new oil concessions that are granted, in order to instill confidence in the new government, especially among Libya’s citizens. In addition, she compares the situation relating to contracts to those that have occurred in Iraq and, especially, Liberia.
Justia columnist and Cornell law professor Michael Dorf examines the way in which an Alabama immigration law—which would place the state in the role of enforcer of federal immigration laws—illustrates a schism that may be growing between two conservative constituencies: populists and corporatists. Dorf illustrates his point about the schism by reference to the controversies over the Troubled Assets Relief Program (TARP) and over immigration, which have split the Republican Party. He also asks if populist conservatives and business conservatives can ever truly get along—and notes ways in which the Supreme Court has been surprisingly supportive of the populists.
Justia columnist and former counsel to the president John W. Dean discusses a set of interesting defamation lawsuits that were filed, earlier this month, in New York federal and state courts, against former New York Attorney General (and, later, New York Governor) Eliot Spitzer. The suits are based on an opinion piece that Spitzer wrote for Slate.com, about a year ago, which concerned past criminal charges that had been brought against employees of insurance/finance powerhouse Marsh & McLennan. Dean covers the background law on public-figure defamation suits; explains why the plaintiffs in the suits against Spitzer may have trouble meeting the basic defamation-law requirement that the statements at issue must be “of and concerning” them; and notes that if New York had a stronger anti-SLAPP statute, Spitzer might have been able to file a countersuit against the two plaintiffs who are suing him.
Justia columnist and Cardozo law professor Marci Hamilton continues her series of columns on the 2012 presidential candidates’ views on religion, with an analysis of the views of Rick Santorum, a former U.S. Senator from Pennsylvania. Hamilton critiques Santorum for failing to respect the Constitution’s separation of church and state, and for expressing support for states’ rights while also endorsing federal legislation that would displace state power, when it comes to certain policies he favors.
Justia columnist and Cornell law professor Sherry Colb discusses the constitutional issues raised by government strip searches, and the relevant Supreme Court precedents. She focuses, as well, on a Supreme Court case that will be decided during this coming Term, Florence v. Board of Chosen Freeholders. There, the Court will—for the first time since 1979—consider whether officials in a jail may strip search inmates in the absence of any individualized suspicion. Colb notes that the case will raise a key question for the Court to consider: Does the Constitution extend any protection for privacy to the people who reside in a detention facility?
Guest columnist and Justia editor David S. Kemp comments on a recent decision from the U.S. Court of Appeals for the Seventh Circuit, which permitted two American citizens to sue several U.S. military officials and former Secretary of Defense Donald Rumsfeld for violating their constitutional rights. In that case, the plaintiffs alleged that Rumsfeld authorized the officials to detain and torture them for several months in Iraq, and that they were subsequently released without being charged with any crime. Kemp covers the three essential questions that had to be answered before the suit could proceed; explains the nature of Bivens claims, through which a plaintiff can bring suit against federal officials (such as, here, Rumsfeld) by proceeding directly under a particular constitutional provision; and describes the two-part test federal courts use to decide whether a Bivens claim will be recognized.
Justia columnist and Hofstra law professor Joanna Grossman discusses the evolving law on the rights of a lesbian co-parent—that is, a woman who participates in the planned conception, birth, and/or rearing of her same-sex partner’s biological or adopted child. Grossman focuses, in particular, on a recent Ohio Supreme Court case that took a somewhat unusual approach to defining the rights of lesbian co-parents. In addition, she describes other states’ varying approaches to the issue, and raises the question whether—in lieu of the traditional legal dichotomy between parent and non-parent—there may be some middle ground into which the legal status of a lesbian co-parent may fall.
Justia columnist and attorney Julie Hilden comments on a recent decision by the Chief Judge of the U.S. District Court of the Northern District of Indiana, concerning students’ First Amendment rights. The case arose after two public-high-school students were suspended based on lascivious (but not nude) photos that they had taken of each other during a series of slumber parties, and posted for their Facebook and MySpace “friends” and for password-holders on a photo website. Their school argued that the girls had violated school policy, but the judge held that they had a right to take and post the photos at home. Important in the judge’s analysis was that the girls themselves did not bring the photos to school; a parent made a copy and brought the copy in. Hilden argues that the case—while rightly decided—underlines the need for Supreme Court clarification in this muddy area of law.
Justia columnist and U.C. Davis law professor Vikram David Amar comments on the recent decision by a divided three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit, striking down Obamacare’s “individual mandate” provision, which requires each person to obtain health insurance coverage or pay a sum of money to the U.S. Treasury. Amar considers and responds to the most important Commerce Clause arguments that the panel majority invoked: (1) the unprecedented nature of the mandate in federal law; (2) the lack of a requirement in the mandate provision that each regulated individual be doing anything that affects the economy; (3) the related problem that if Congress could mandate purchase of healthcare, there would be no stopping point to federal power; and (4) the fact that insurance and healthcare are matters of traditional state concern.
Justia columnist Joanne Mariner, an attorney and the head of Hunter College’s Human Rights Program, comments on the memoir of David Hicks, an Australian who was incarcerated at the United States’ Guantanamo Bay detention facility for five-and-a-half years. Mariner notes that Hicks’s Guantanamo memoir is now one of many such works that detail interrogation practices and detention conditions at the facility. She also points out the book has recently made headlines due to the Australian government’s attempt to confiscate the royalties Hicks earned from his publisher, citing Australia’s Proceeds of Crime Act. Mariner notes the parallel between that Act and the United States’ “Son of Sam” laws, which the U.S. Supreme Court has occasionally held to be in violation of the First Amendment, and she explains other troubling aspects of the attempt to apply Australia’s Act to Hicks.
Justia columnist and attorney Julie Hilden comments on a case in which a young woman, Avery Doninger, sued her former high school for punishing her when she was a student there based on derogatory comments about school administrators that she posted while at home, on her home computer, after school hours, on a publicly accessible blog. Hilden notes that Doninger is now seeking Supreme Court review, based on a split among the federal circuit courts regarding cases similar to her own. Hilden explains two key Supreme Court precedents on school speech, and contends that the Court would have to truly make new First Amendment law if it were to allow schools to punish students for online comments that, like Doninger’s, were made after school hours, at home, on home computers—even if the subject of the comments relates to other students or to school administrators.
Justia columnist and U. Washington law professor Anita Ramasastry focuses on a scandal that shows how posts on social networking sites may lead to much-needed reforms. As Ramasastry explains, the Facebook page of an anonymous person who goes by “Spider Truman” has played a key role in focusing public attention on the lavish lives of Italian Members of Parliament (MPs), and their alleged corruption. With Italy now in a severe financial crisis, disclosures on the site of “Spider Truman” concerning MPs’ many perks and alleged misconduct have enraged many, Ramasastry points out. Examples include the MPs’ menu of gourmet food at heavily subsidized prices, and their alleged fraudulent expense claims. Noting that UK MPs previously were part of a similar scandal that led to reform, Ramasastry contends that social networking may be a catalyst for greater governmental openness in Italy and elsewhere.
Justia columnist and Cornell law professor Michael Dorf notes that many Americans have expressed disappointment in President Obama’s recent speeches. But, of course, it’s easy to criticize, and much harder to detail what the President actually should be saying. That’s exactly what Dorf does in this column—even going so far as to offer his own hypothetical stump speech for President Obama to deliver—a speech addressing tough issues like tax cuts; how, exactly, to put Americans back to work; and one key policy and legal point that Republicans and Democrats alike ought to agree upon.
Justia columnist and former counsel to the president John Dean continues his commentary on the scandal regarding the reported hacking of voicemail messages by News Corp. employees. In this column, Dean contends that—despite Rupert Murdoch’s strong suggestions to the contrary—the Board of Directors of News Corp. is far from independent of Murdoch himself. Even so-called independent directors, Dean explains, have close ties to the Murdochs, and have been described by reporters as “Friends of Rupert.” Dean focuses, in particular, on the independent director Viet Dinh. And overall, he argues, citing a number of experts, that the News Corp. board’s standards when it comes to corporate governance and independent directors, are far too low.
Justia columnist and Cardozo law professor Marci Hamilton begins her series on likely 2012 presidential candidates and their views on religion. Here, Hamilton assesses the views of Texas Governor Rick Perry. She expresses concern, in particular, with Perry’s lack of belief in the separation of church and state, as exemplified by his speeches; finds in Perry’s record a belief that religion should drive politics; and questions Perry’s claimed beliefs in small government and in federalism.
Justia columnist and Cornell law professor Sherry Colb contends that laws broadly preventing certain mentally ill persons from possessing firearms may not be as obviously a good idea as they might seem at first glance. Currently, Colb explains, there is a federal law—passed in the wake of the Virginia Tech shootings—to simplify the identification and tracking of persons who have previously been committed to a mental hospital, and who have therefore been divested of their right to possess firearms; those rights, though, can later be restored. Interestingly, though, Colb notes that in other contexts, members of certain groups (such as men) may be statistically far more likely than their counterparts (such as women) to commit gun violence, and yet, are allowed to carry guns nonetheless. Colb also points out that certain types of mental illness, which might lead to commitment to a mental hospital, are not connected to gun violence at all, yet still are swept in by the law.
Justia columnist and Hofstra law professor Joanna Grossman continues her two-part series of columns critiquing the Defense of Marriage Act (DOMA)—which was recently the subject of Senate Judiciary Committee hearings. As Grossman notes, a bill is now pending that would reverse DOMA to the extent that DOMA defines marriage, for federal law purposes, as a union between one man and one woman. She describes the varied, pending litigation related to DOMA, and considers some of the reasons DOMA has garnered complaint and opposition: Critics say it imposes unfair disadvantages on married gay couples, and many have observed that DOMA has spawned a bureaucratic nightmare.
