Can Consumers Use Apps to Change the Terms of Online Contracts? A New End User License Agreement Opt-Out Website Offers a Clever, Valid Tool

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.

The “Obama Doctrine”: The Wisdom and Lawfulness of the President’s Take-No-Prisoners Approach

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.

Gaming American Democracy: Recent, Unprecedented Republican Obstructionism and Abuse of the Senate’s Rules

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.

The Potential Consequences of Adult Adoption for Inheritance: A Recent Virginia Supreme Court Ruling

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.

Barbara Sheehan and The “Battered Woman’s Defense”: Must Domestic Violence Be Imminent to Justify Self-Defense?

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.

Assessing Mitt Romney as a 2012 Presidential Candidate: Part Four in an Ongoing Series on the Likely Candidates and Their Views on Religion

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.

Can a City Broadly Ban People From Soliciting Work, Business, or Contributions on Its Streets and Highways? A Ninth Circuit En Banc Majority Says No

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.

The New Protests Against Wall Street: Why They Should Be Taken Seriously, and What Could Come Next if They Are Not

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.

An Upcoming Case About Israel, Jerusalem, and Presidential Power Offers the Supreme Court the Chance to Clarify the Rules About “Political Questions”

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.

Can Patients and Providers Sue to Enforce the Federal Medicaid Law?

Justia columnist and Cornell law professor Michael C. Dorf comments on a case in which the Supreme Court heard oral argument last week. As Dorf explains, while the case may seem technical, it will have some very substantive consequences for the judicial enforcement of federal rights. The question the case directly raises is whether private parties (specifically, Medicaid patients and providers) can sue states to demand that they comply with the requirements of the federal Medicaid law. Interestingly, the Obama Administration's view is that they cannot, while the right-leaning U.S. Chamber of Commerce’s view is that they can—even though Democrats traditionally favor court access, and Republicans traditionally are more likely to oppose such access. Dorf explains why the Democrats’ decision to oppose court access here, while favoring it generally, is a high-risk strategy that might backfire, depending on the Court’s resolution of the case.

To Honor First Amendment Rights, Cleveland and Other Cities Should Focus on Flash Mob Violence, Not Instant Messaging

Justia columnist and U. Washington law professor Anita Ramasastry comments on the Cleveland, Ohio, City Council’s recent efforts to pass ordinances that penalize the convening of flash mobs that become violent or disruptive. Ramasastry explains the City Council’s original proposed ordinance, and why the city’s mayor vetoed it, and notes that there are significant problems with the City Council’s second attempt at a flash-mob ordinance, as well. She advocates an approach that focuses on action, not speech, when it comes to flash mobs, and reminds us that the “chilling effect” of overly broad ordinances can end up stopping First-Amendment-protected speech before it starts.

Gaming American Democracy: A Perfect Storm in Which Republicans Disenfranchise Voters While Giving Corporations Unchecked Powers

Justia columnist and former counsel to the president John Dean continues his series of columns on the new techniques being employed by Republicans to alter the political landscape. In this column, Dean notes that some public attention was paid to these tactics after the controversy regarding Governor Scott Walker and Wisconsin unions, but also emphasizes that other tactics are even now being played out behind closed doors. In particular, Dean focuses on the activities of the American Legislative Exchange Council (ALEC), a very powerful corporate lobby, whose members include over 2,400 conservative state lawmakers. Dean explains that the 2010 elections proved to be a perfect storm for ALEC and its conservative partners, and—relying in part on strong reportage from Mother Jones, The Nation, and Rolling Stone—Dean details some of ALEC’s activities (such as supplying pre-cooked McBills for state legislators to pass), and some of its funding influences. Dean expresses particular concern over ALEC’s activities that aim to limit the ability of some Americans to vote, which President Clinton has decried.

Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC: The Supreme Court Oral Argument, and What It Revealed

Justia columnist and Cardozo law professor Marci Hamilton comments on yesterday's Supreme Court oral argument, regarding religious institutions and anti-discrimination law. As Hamilton explains, the case brought the “ministerial exception” doctrine to the Supreme Court, for the first time ever. The doctrine, which stems from the First Amendment's Religion Clauses, holds that religious organizations have the right to determine the criteria for their own clergy (for instance, the Catholic Church need not hire female priests). The question the case raises is how to reconcile the ministerial exception with laws forbidding discriminatory hiring and firing. A related question is whether the teacher whom the Church fired, Cheryl Perich, was actually a minister, or simply a teacher of religion (as well as secular subjects). If she is a minister, the ministerial exception may apply; if not, she enjoys the full protection of the anti-discrimination laws. Finally, Hamilton notes that “sincerity” cases—allowing courts to gauge the sincerity of religious belief—might well have proven relevant here, but were not mentioned at oral argument.

Mississippi Initiative 26: The Significance of Saying That a “Person” Exists From Conception to Death

Justia columnist and Cornell law professor Sherry Colb comments on a Mississippi initiative that aims to amend the state’s constitution. If passed, the initiative would define a “person” to “include every human being from the moment of fertilization, cloning or the functional equivalent thereof.” The law, Colb notes, plainly clashes with Supreme Court precedent, by banning abortion even very early on in a pregnancy. However, Colb focuses, instead, on how the initiative raises the question of who is a person—arguing that this question only muddies the debate over abortion. She contends that there are two key debates about abortion: a factual debate about embryonic and fetal development, and a moral debate about the consequences of those facts (many of which are well established) for the law. Using the word “person,” Colb contends, might make the speaker seem as if he or she is stating a fact, but really should be characterized as reflecting the speaker’s normative point of view, whether it is pro-life or pro-choice—and thus, confuses the debate. To illustrate the point, Colb gives examples of several ways in which using the word “person” mixes moral and factual points and clouds clear thinking. She also points out that rhetorical problems here are not limited to the pro-life side, pointing out that it also clouds debate to refer to abortion as merely “health-care” as some pro-choice advocates do.

Towels Under Tailbones? Naked San Franciscans Protest Proposed Restrictions on Public Nudity

Justia columnist and Hofstra law professor Joanna L. Grossman, and Justia guest columnist and Stanford law professor Lawrence M. Friedman comment on American law regarding public nudity, in the wake of a new proposed ordinance on this topic. The ordinance—put forward by Scott Wiener, the new city supervisor for San Francisco’s Castro District—would forbid naked people from entering restaurants. It would also require naked people to put down a towel or other barrier before sitting down in public—for example, while riding a city bus. In addition to discussing the proposed San Francisco ordinance, Grossman and Friedman discuss current California state law on nudity, which covers indecent exposure only if it is lewd (with additional rules applying to restaurants and “adult” establishments). They also cover the Berkeley, California, regulation on nudity that was prompted by the repeated nudity of a man nicknamed “The Naked Guy,” and consider nudism in history.

Should the Law Treat Defamatory Tweets the Same Way It Treats Printed Defamation?

Justia columnist and attorney Julie Hilden comments on defamation claims based on Twitter users’ tweets. As she explains, two such cases in recent years have involved musician Courtney Love, and another involved Kim Kardashian. Hilden points out that the Supreme Court’s constitutional law regarding defamation was devised with newspapers squarely in mind. She thus analyzes why the different context of Twitter might make a difference, legally. Among other possibilities, Hilden considers possible analogies between tweets and slander, and between tweets and Op Eds.

Why Pennsylvania and Nebraska Proposals to Alter Those States’ Electoral College Allocations Are UnAmerican, If Perhaps Not Unconstitutional

Justia columnist and U.C. Davis law professor Vikram David Amar comments on Pennsylvania and Nebraska proposals to change the allocation of those states’ electoral college votes. Amar expresses concern that, while the proposals may not be illegal, they are nevertheless deeply problematic and antithetical to basic principles underlying American democracy. The Pennsylvania proposal would alter the winner-take-all approach to the states’ electoral college votes, and instead would allocate the lion’s share of those votes based on how many congressional districts a given candidate won. Meanwhile, in Nebraska, another proposal suggests the opposite change: from a district-by-district approach to winner-take-all. Amar points out that each of these proposals, authored by Republicans, has been put forward now for a plainly partisan reason: to reduce President Obama’s chances of re-election. Amar contends that this partisan motive should make us skeptical of the proposals, which would take effect immediately, much more so than if they were to take effect at a time in the future when their authors could not so easily determine what their partisan effect might be. Finally, Amar also considers whether Bush v. Gore ought to be deemed relevant to the controversy over the Pennsylvania and Nebraska proposals.

Blaming the Victims of Our Advice: Why Europe’s Woes Show That the Regressive Policies It Imported From the United States Are Wrong, and That Progressive Policies Are Right

Justia columnist, George Washington law professor, and economist Neil Buchanan takes strong issue with Republican presidential candidate Mitt Romney’s claim, in a recent debate, that European governments have adopted policies that Democrats in the United States would also like to adopt, and that those policies have led to disastrous consequences in Europe. Specifically, in criticizing President Obama, Romney said, “Guess what? Europe isn’t working in Europe. It’s not going to work here.” Buchanan argues that this comment gets it backward—for, he argues, the problem for Europe has not been the social-democratic policies to which Romney refers, but rather the very U.S.-style economic policies that Romney and other like-minded Republicans endorse. Thus, the truth, Buchanan says, is better embodied in the following statement: “American financial policies were a disaster in America. And they ruined Europe, too.”

Military Commissions Resurgent

Justia columnist and Hunter Human Rights Program Director Joanne Mariner comments upon the return of military commissions, which she describes as the latest in a string of victories for congressional Republicans who seek to bring back Bush-era “war on terror” policies—while seeking not only to keep Guantanamo open, but also to increase the number of persons detained there. Mariner argues that the Obama Administration ought to fight hard against such compromises of rights, but notes that it is not clear yet whether the Administration will take that stance. As Mariner explains, the test case here, which may signal the Administration’s future approach, is that of Lebanese citizen and alleged Hezbollah commander Ali Mussa Daqduq, who has been detained for crimes against U.S. military personnel in Iraq. Mariner contends that the federal courts, not military commissions, are the proper place to try terrorism suspects—with a strong record, under which (1) not a single genuine terrorist escaped conviction, and (2) the federal courts’ sentences generally proved to be longer than the military commissions' sentences.

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