Football, Sexual Assault, and the Web: The End of the Institutional Cover-ups of Sexual Abuse and Assault

Justia columnist and Cardozo law professor Marci Hamilton comments on the confluence of forces that have made the victories in the fight against child sex abuse possible. Among the key factors, Hamilton argues, are the end of the old boys’ network; survivors who are empowered by the justice system; and revelations that go public far more quickly than they could have prior to the Age of the Internet, when victims and critics of abusers have a strong, far-reaching voice and the ability to recruit allies and supporters. With all these developments, together, sparking public outrage, Hamilton notes that even previously untouchable football institutions can be made accountable—noting, for instance, the crimes toward a young woman in Steubenville, Ohio, by members of that town’s team.

The U.S Court of Appeals for the Sixth Circuit Upholds Restrictions on Medical Abortion: Why Should Anyone Care?

Justia columnist and Cornell law professor Sherry Colb discusses the ramifications of the U.S. Court of Appeals for the Sixth Circuit’s decision to uphold a series of restrictions on medical abortions (such as abortions effected by taking the drug RU-486) against various constitutional challenges by Planned Parenthood and others. Colb explains why making medical (as opposed to surgical) abortions more difficult can also have other ramifications, as well. For instance, she suggests that the restrictions at issue may be motivated by politics, and not by concern for women’s health. In particular, Colb points out that medical abortions do not require clinic visits where women seeking abortions must face down pro-life protesters; and that such abortions, with no health care provider involved, may defeat a pro-life strategy of vilifying abortion providers and painting women who seek abortions as victims of society’s decision not to fully support motherhood.

When Good Courts Go Bad: The Iowa Supreme Court Issues an Absurd Decision on Sexual Jealousy and Employment

Justia columnist and Hofstra law professor Joanna Grossman takes strong issue with a recent Iowa Supreme Court decision holding that a male dentist did not violate a law banning sex discrimination in employment when he fired his very competent dental assistant simply because he was attracted to her. Grossman argues that the Iowa courts should, in this case, have recognized that the dentist perpetrated what is called “sex-plus discrimination,” which joins sex discrimination with another factor, such as an attraction to a particular person of that sex. Thus, Grossman explains, it is not a factor in the dentist's favor, legally, that he had hired other female assistants, and did not harass them. When women are treated worse than men at work because of their gender, Grossman concludes, discrimination law must apply, regardless of how many women are harassed or how selective or attraction-based the harasser may be.

What Can The President Do When Congress Gives Him a “Trilemma” of Unconstitutional Choices? Understanding Why the President Must Exceed the Debt Ceiling

Justia columnist and Cornell law professor Michael Dorf and Justia columnist, George Washington law professor, and economist Neil Buchanan argue that, faced with a trilemma of unconstitutional choices, President Obama effectively has no choice but to exceed the debt ceiling, and they explain exactly why that is. Buchanan and Dorf describe why, to honor the Constitution, a President must choose to issue debt in excess of the statutory limit, if the budget otherwise requires him to do so. They also argue that even Republicans in Congress should want the President to issue more debt, if Congress itself is unable to find a way to do its duty and increase the debt ceiling as needed. In their analysis, Buchanan and Dorf also invoke the idea that some choices are more unconstitutional than others; constitutionality, in other words, isn’t just either/or.

The First Amendment and a New York State Newspaper’s Reportage of the Names of All Area Individuals Holding Pistol Permits

Justia columnist and attorney Julie Hilden comments on the controversial decision by the suburban New York newspaper The Journal News to report the names of area residents who possess pistol permits. Hilden discusses both a possible defense for the newspaper’s controversial action, and also some reasons why that action, while legal under area law and First-Amendment-protected, may not have been prudent—particularly since revealing who is armed in a given community also implicitly reveals who is unarmed and thus potentially vulnerable and therefore, the newspaper’s reportage might cause many area residents to arm themselves.

The Constitutional Problems With the Hawaii Law By Which Senator Schatz Was Appointed to Replace the Late Senator Inouye

Justia columnist and U.C., Davis law professor Vikram David Amar argues that there are serious Seventeenth Amendment issues plaguing the Hawaii law that resulted in the temporary appointment of Senator Schatz, after Hawaii Senator Inouye had passed away. More specifically, Amar explains, Hawaii law provides that its Governor shall make a temporary appointment to fill a Senate vacancy by selecting a person from a list of three prospective appointees submitted by the same political party to which the prior incumbent had belonged. Amar questions the constitutionality of Hawaii's procedure with respect to the three-prospective-appointee list and how it is composed.

A Mismatch Between Tax Politics and Deficit Rhetoric: A Very Bad Tax Deal Is Passed by Politicians Who Do Not Understand the Economics of Deficits

Justia columnist, George Washington law professor, and economist Neil Buchanan sharply critiques the tax deal that was just passed. Buchanan contends that the big picture here is very different from that painted by Beltway insiders in the run-up to the deal, in important ways. To support his points, Buchanan covers the basics of the deal; points out that merely because both sides were disappointed does not mean that a good deal was struck; and questions the need for the deal in light of the fact that the long-term budget situation looks significantly better than most people think, in part because certain pessimistic assumptions about health-care costs have so far not proven true.

What Gun Regulations Will the Supreme Court Allow? Part Two: Originalism and the Second Amendment

In the second in this two-part series of columns on constitutional gun regulation, Cornell law professor Michael Dorf comments on the ways in which the Supreme Court may interpret the Second Amendment, after the Newtown, Connecticut massacre. In particular, Dorf notes subtleties of interpretation that may matter greatly in this area of constitutional law. In particular, Dorf comments on the difference between living constitutionalism and originalism, and the difference between old originalism and new originalism. Dorf also takes Justice Scalia to task for not fully practicing what he preaches, harkening back to Scalia’s recent comment that the Constitution is “dead, dead, dead.”

A Necessary Beginning To Ending Capitol Gridlock: Filibuster Reform

Justia columnist and former counsel to the president John Dean urges that filibuster reform is vitally necessary if the nation is to get Congress working again. Dean places the problem squarely on Republicans’ shoulders, and describes the Party’s filibuster abuses. He also notes the baleful effect of the Republicans’ use of the filibuster upon the judicial confirmation process, triggering an emergency situation in the judicial branch. Dean comments on what effective filibuster reform would look like; contends that there are no strong arguments against it; and explains the so-called “nuclear option” that Democrats still could invoke if they so chose.

What Gun Regulations Will the Supreme Court Allow? Part One: Restricting Firearms Outside of the Home

In Part One of a two-part series of columns on the Second Amendment and gun regulation, Justia columnist and Cornell law professor Michael Dorf considers the question of which firearm regulations the Supreme Court will allow, and which the Court will consider to be Second Amendment violations—a timely question in light of the Newtown Massacre and the many gun-control ideas and suggestions to which that tragedy has led. While some of these suggestions are clearly constitutional, as Dorf explains, others may or may not be. Dorf focuses especially on the possibility of a ban on possession of firearms in public places, and its possible constitutionality or lack thereof, noting that two prior Second Amendment cases that the Court handed down, in 2008 and 2010, do not resolve that issue.

How a Case About Decriminalization of Marijuana Has Substantial Implications for the Rights of Gay and Lesbian Persons

Justia columnist Vikram David Amar and Justia guest columnist Alan Brownstein, both U.C., Davis law professors, comment on the connection between a case about decriminalizing marijuana, and another case about gay and lesbian rights—and in particular, about sexual orientation change efforts (SOCE), which are now prohibited in California where those under 18 are involved. Amar and Brownstein describe SOCE methods, and the two cases, with very different judicial results, which confronted the question whether barring SOCE violates the First Amendment, and particularly the right of doctors to communicate with their patients. They then explain the central importance of the marijuana-decriminalization precedent when it comes to the SOCE cases, which may well end up before the U.S. Court of Appeals for the Ninth Circuit.

Instagram’s Terms of Service Revision: Why It Strained the Bounds of Fair Contracting

Justia columnist and U. Washington law professor Anita Ramasastry comments on the photo-sharing site Instagram’s controversial change to its Terms of Service (ToS), which has had some users up in arms—mainly because of a term that would allow Instagram to share a user’s photos with Facebook (which owns Instagram) and marketing affiliates for the purpose of creating paid advertisements, with the revenues going to Instagram, and not the photo owner. Due to the controversy, Instagram has a new ToS, but Ramasastry contends that the new ToS is also problematic for its own reasons.

How Many Times Will Speaker Boehner Save President Obama From Himself? The Budget Negotiations Show That the President Is Still a Center-Right Politician Elected by Center-Left Voters

Justia columnist, George Washington law professor, and economist Neil Buchanan argues that while President Obama appeals to voters on the left and in the middle, his economic policies are actually center-right—which might be a surprise to some of his constituents. Moreover, Buchanan points out that Obama has several times compromised with himself, rather than with the Republicans, in key negotiations, thus losing ground that, Buchanan suggests, didn’t need to be ceded. Buchanan also takes Obama to task for lacking the will to increase tax rates on the wealthiest taxpayers.

Do Rapists Have the Right to Parent Children Conceived in Rape? Part Two of a Two-Part Series of Columns

In Part One of this two-part series of columns, which appeared on December 12, Justia columnist and Cornell law professor Sherry Colb commented on the following question: Do men who father children through rape, and whose victims take their pregnancies to term, have parental rights vis-à-vis those children? If so, that would mean that the rapist father could seek visitation with, or even custody of, those children. Now, in Part Two of the series, Colb examines how and why many state laws seem to support even rapist fathers’ visitation rights, due to the burdens of proof they impose, with alleged rapists often needing to be convicted of rape beyond a reasonable doubt before their visitation rights are refused or terminated. Colb outlines a number of alternative legal approaches that she argues would be preferable to those that currently exist.

Senator Franken Wants Us to Know When Our Apps Are Tracking Us: Why This Is a Sensible Thing for Congress to Require

Justia columnist and U. Washington law professor Anita Ramasastry comments on Senator Al Franken’s proposed legislation that would regulate cyberstalking and geolocation apps—some of which are installed in a given device without notice of their presence being provided to the user. As Ramasastry explains, some of the chief concerns in this area of law include the possible stalking of domestic violence victims, and the safety of children. As Ramasastry explains, this topic not only sparked Franken’s interest, but also is of interest to the FTC, and the Senate Judiciary Committee.

The Sandy Hook Murders, and Their Lessons: A Three-Part Legislative Agenda to Protect Us from Future Deranged Mass Murderers

Justia columnist and Cardozo law professor Marci Hamilton comments on the tragic murders at Sandy Hook, which have shaken the nation. Hamilton discusses the limits to the constitutional right to bear arms, and emphasizes that the murders demand a debate about both gun control and mental health. Without constitutional barriers, despite what the NRA says, Hamilton says that instituting gun control would be easy if there were the political will to do so. The hard part, Hamilton argues, is dealing with those who are mentally ill, and have the capacity to harm others, without returning to the woeful state in which the mentally ill were left in the past. And the really easy part, Hamilton argues, is forbidding parents—like Adam Lanza’s mother—from introducing their mentally ill children to guns and teaching them how to use them.

The Ongoing Debate Over Physician-Assisted Suicide

Justia columnist and attorney David Kemp comments on the controversial topic of physician-assisted suicide (“PAS”), which is legal in only three states: Washington, Oregon, and Montana. Kemp provides a history of PAS; explains the distinctions between PAS and other end-of-life decisions such as palliative care and the choice to withdraw life-sustaining treatments; and comments on the question whether PAS merits criminal liability.

The Ultimate GOP Obstructionism Is Secession, but That Will Never Happen

Justia columnist and former counsel to the president John Dean comments on the sharp post-election increase in the number of petitions that have been sent to the White House by Americans, seeking certain states’ secession from the Union—totaling 22 states, thus far. (Generally, the Obama White House, via its “We the People” digital forum, welcomes any American to start or sign a petition addressing an issue that concerns him or her, and in some cases, the Administration has responded.) But Dean explains why the secession petitions are—and should be—doomed to fail, as well as being patently unconstitutional, unpatriotic, and illegal. To claim otherwise, as would-be secessionists do, Dean notes, is to utterly ignore the Civil War and the Fourteenth Amendment. Dean also paints a frightening picture of what post-secession America would be like, in the states that had seceded, if the petitioners were to somehow get their wish.

The Year in Review: 2012 Marks the Highest Watermark Yet for Victims of Child Sex Abuse

Justia columnist and Cardozo law professor Marci Hamilton looks back on this year’s important developments regarding justice for victims of child sex abuse. Among the events Hamilton chronicles are the conviction of prominent Satmar Hasidic school counselor Nechemya Weberman, and the Catholic Church and Penn State cases, which led to the convictions, respectively, of Msgr. Willam Lynn and Jerry Sandusky. Other developments, as Hamilton explains, have involved the Boy Scouts’ release of previously secret files, as well as the release of previously secret files pursuant to the settlement by the Catholic Church’s Los Angeles Archdiocese. Key priorities for the future, Hamilton notes, are increased legal reform in this area, and a greater focus on the problem of incest.

Do Rapists Have the Right to Parent Children Conceived in Rape? Part One of a Two-Part Series of Columns

In Part One of this two-part series of columns, Justia columnist and Cornell law professor Sherry Colb comments on the following question: Do men who father children through rape, and whose victims take their pregnancies to term, have parental rights vis-à-vis those children? If so, that would mean that the rapist father could seek visitation with, or even custody of, those children. Colb describes both the argument in favor of allowing such men paternal rights, and the argument against doing so. In Part Two of this series, appearing on December 17, Colb examines how and why many state laws seem to support even rapist fathers’ visitation.

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 is an economist and legal scholar and a Professor of Law at The George... 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

Anita Ramasastry
Anita Ramasastry

Anita Ramasastry is the UW Law Foundation Professor of Law at the University of Washington School... more

Lesley Wexler
Lesley Wexler

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