Soft Drinks, Taxes, and Regulation: Why the Attacks on Mayor Bloomberg’s Proposed Size Restrictions on Soda Servings Are Misplaced

Justia columnist, George Washington law professor, and economist Neil Buchanan comments on New York Mayor Michael Bloomberg’s controversial size restrictions on soda servings, suggesting that Bloomberg’s critics’ points are misplaced. Buchanan argues that the size restrictions are much akin to a common sales tax, and points out the equivalence of taxes, restrictions, and lawsuits in remedying public harms. Moreover, he contends that the broad liberty objection that many have voiced in the face of Bloomberg’s proposal is flimsy, when carefully considered. And finally, Buchanan takes on the paternalism objection, as well—noting that marketing has distorted people’s choices substantially, and pointing out that we are in the midst of an obesity crisis, and that some government intervention may be warranted given the extreme nature of the problem, especially with respect to children's health.

Was It Wrong for Chief Justice Roberts to “Flip Flop” on Obamacare?

Justia columnist and Cornell law professor Sherry Colb raises an intriguing question regarding the Supreme Court’s recent decision upholding the Affordable Care Act, also known as the ACA or, more colloquially, as Obamacare. Colb notes that leaks from the Court have suggested that Chief Justice Roberts initially was inclined to vote with his four conservative colleagues to strike down the ACA, but later changed his mind to side with the Court’s liberals and uphold the legislation. Assuming for purposes of argument that (1) the leaked information is accurate, and (2) Chief Justice Roberts’s claimed flip-flop was based in part on public sentiment, did Roberts do anything wrong? Colb suggests, interestingly, that the correct answer to that question may be “No.” Using two hypothetical court scenarios, as well as the ACA case itself, Colb isolates the kinds of cases and issues in which a judge would be wrong—or right—to take public sentiment into account.

Bringing Title IX to Bear on the Problem of Sexual Violence in Schools: Part Two of a Two-Part Series

In Part Two of a two-part series of columns, Justia columnist and Hofstra law professor Joanna Grossman continues her discussion of the application of Title IX of the Education Amendments of 1972, which effected a ban on sex discrimination by educational institutions that receive federal funding. Grossman focuses especially on the recent case of Student v. Henderson Independent School District (HISD), in which a school district was sanctioned by a federal agency for failing to respond to a complaint of student-to-student sexual assault; and the legal standards that produced that result. Here, Grossman stresses, among other points, that a police investigation of alleged sexual harassment or assault is no substitute for the required school investigation that is mandated.

Bringing Title IX to Bear on the Problem of Sexual Violence in Schools

In Part One of a two-part series of columns, Justia columnist and Hofstra law professor Joanna Grossman discusses the application of Title IX of the Education Amendments of 1972, which effected a ban on sex discrimination by educational institutions that receive federal funding. Grossman focuses especially on the recent case of Student v. Henderson Independent School District (HISD), in which a school district was sanctioned by a federal agency for failing to respond to a complaint of student-to-student sexual assault; and the legal standards that produced that result.

The Top 10 Things to Take Away From Last Week’s Supreme Court Obamacare Ruling

Justia columnist and U.C., Davis law professor Vikram David Amar comments on the ten key takeaways from last week’s Obamacare opinion. Some of the lessons Amar suggests that the opinion teaches are not just about the Supreme Court, but, interestingly, also about the media, and about Intrade users. Moreover, when it comes to the Court and its Justices, Amar points out lessons that we might learn about Justice Kennedy and Chief Justice Roberts, respectively, from the opinion. Amar also points out lessons that we might learn from the opinion about Commerce Clause doctrine and doctrines regarding constitutional federalism.

It Does Not Matter Whether Congress Calls a Tax a Tax: Explaining the Dissenting Justices’ Misconceptions About the Taxing Power in the Affordable Care Act Case

Justia columnist, George Washington law professor, and economist Neil Buchanan takes aim at the arguments that the dissenting justices made regarding the Affordable Care Act (ACA), and, more specifically, regarding the taxing power. Those taxing power arguments, Buchanan contends, proved to be a dangerous red herring. Buchanan makes his case to that effect by using some ingenious hypotheticals; he argues that it is perfectly logical to deem a certain measure a tax for some purposes, but not for others. It is substance, he says, rather than form, that ultimately matters. Moreover, Buchanan notes, a tax by its nature need not be motivated by the government’s aim to raise money, although the ACA will, indeed, raise some money. Often, Buchanan points out, taxes are meant not to raise money but to incentivize or penalize certain behaviors. Ultimately, Buchanan notes that it is of no import, legally, that the ACA is not characterized as a tax; the key is that it, in part, operates as a tax.

The Orbitz Controversy: Why Steering Mac Users Toward Higher-Priced Hotels Is Arguably Wrong, and What Might be Done About It

Justia columnist and U. Washington law professor Anita Ramasastry discusses two controversial online business practices: steering, and differential pricing. Steering, which the travel site Orbitz has used, directs potential customers to options that they may be likely to choose, based on other information the site knows about the customer — for instance, whether he or…

Journalists, Protesters, and Other Terrorist Threats

Justia columnist and Hunter College Human Rights Program Director Joanne Mariner draws on a recent Human Rights Watch report that she co-authored, regarding the host of post-9/11 counterterrorism laws that have been passed, to question whether these laws cast too wide a net.  As Mariner explains, the report reveals that, in fact, many of the laws have proved overbroad, and that very overbreadth has meant that they have swept in journalists, social protesters, opposition figures, and other disfavored groups who have had nothing to do with terrorism.  Mariner provides specific examples to prove her thesis, citing instances of the misuse of counterterrorism laws to detain protesters in Bahrain, and to detain journalists in Ethiopia.  She also focuses on troublingly unspecific UN Security Council resolutions regarding counterterrorism, that may well open the door to abuse.

Why Chief Justice Roberts Dared Not Overturn President Obama’s Healthcare Plan

Justia columnist and former counsel to the president John Dean comments on Chief Judge John Roberts’s role in the Supreme Court ruling upholding Obamacare. Dean anticipated that Roberts would vote, as he did, to uphold the healthcare statute, and Dean notes some other learned commentators who had also anticipated Roberts’s stance. A major factor in Dean’s prediction as to where Roberts would come down was Robert’s own testimony in the confirmation hearings that led him to join the Court. Describing himself in those hearings as an “umpire,” Roberts made clear that he would apply pre-existing, well-grounded legal rules, and not create new ones out of whole cloth. To show how Roberts did just that, Dean sums up the various Commerce Clause precedents that were relevant in the Obamacare case, and explains how Roberts dutifully followed them.

Why The D.C. Court of Appeals Rejected the Claim that Performing a Rap Constituted Making a Criminal Threat

Justia columnist and attorney Julie Hilden comments on a recent decision by the D.C. Court of Appeals—D.C.’s highest court—regarding the First Amendment and the “true threats” doctrine, which holds that true threats are not First Amendment-protected. Hilden notes that the case was unusual as it involved not just a statement, but a rap. After covering three key U.S. Supreme Court cases regarding the “true threats” doctrine, Hilden goes on to consider why the court ruled in favor of the speaker, and to agree with the court’s result. She also emphasizes the importance of context in the decision whether a given comment counts as a true threat or First-Amendment-protected speech, and notes a number of factors that might cut for or against a “true threat” finding in particular cases.

What’s Wrong With “Doping” to Get A’s In High School?

Justia columnist and Cornell law professor Sherry Colb comments on the recent phenomenon of high school students’ using stimulants such as Adderall and Ritalin to attempt to improve their academic performance, often getting the stimulants by faking Attention Deficit Hyperactivity Disorder (ADHD). Colb notes that for those who do not have ADHD, the drugs act as a stimulant, allowing the user to better concentrate and focus. Colb compares and contrasts the issues raised by steroids scandals in professional sports to illustrate what, exactly, is wrong with this kind of use of Adderall and Ritalin. Among other points, Colb expresses concern that students’ use of such drugs will become the “new normal”—which is especially worrisome as the drugs carry side effects and serious risks. She also suggests that we, as a society, reconsider the competitive model of high school studying, and instead focus on students’ learning about subjects that interest and inspire them individually.

The Big 4-0: Title IX Puts a Fourth Decade Under Its Belt

Justia columnist and Hofstra law professor Joanna Grossman, and Justia guest columnist and U. Pittsburgh law professor Deborah Brake comment on the 40th anniversary of Title IX, the federal civil rights statute that bans sex discrimination in federally-funded education programs. Grossman and Brake focus on the area in which Title IX has had its biggest impact, athletics, and explain its impact on college women’s and high school girls’ opportunities in sports. They reveal the secrets of Title IX’s success, including its refusal to take current, status quo levels of girls’ and women’s interest in sports as fixed or natural and thus to cap opportunities at current levels. Grossman and Brake also comment on Title IX’s recent history, criticizing the George W. Bush Administration for undermining the law, and praising the Obama Administration for properly enforcing it. Finally, they describe the stumbling blocks that still remain when it comes to full Title IX enforcement.

Survivors of Sexual Abuse Prevail in Pennsylvania: The Lynn and Sandusky Cases Show Us What Justice Looks Like

Justia columnist and Cardozo law professor Marci Hamilton discusses the guilty verdicts that juries recently reached in the cases of Jerry Sandusky and Monsignor William Lynn. The verdicts were both handed down this past Friday, June 22. Sandusky was convicted of 45 counts of child abuse, in connection with his alleged sexual abuse of numerous young boys. Lynn was convicted of a count of child endangerment arising from his alleged allowing another priest, who had committed child sexual abuse, to continue to have access to children. Hamilton also covers progress in the Pennsylvania and New Jersey legislatures regarding extending those states’ statutes of limitations for child sex abuse, in order to enable survivors to receive justice.

Under What Circumstances Can a State Compel a Pharmacy to Provide “Morning After” Drugs Against the Religious Objections of Pharmacists? A Case From Washington State Illustrates Modern Free Exercise Doctrines and Dilemmas

Justia columnist Vikram David Amar and Justia guest columnist Alan Brownstein, both U.C., Davis law professors, comment on a recent Washington State controversy that raises the issue whether a pharmacy must provide the emergency contraceptive known as “Plan B” if the pharmacy’s owner objects to doing so, based on his or her own religious beliefs. (Such pharmacy owners believe that life begins at conception, meaning fertilization; Plan B prevents the implantation of a fertilized egg.) Amar and Brownstein note that the case is important and interesting not just in itself, but also because it illustrates many of the unanswered questions that concern the First Amendment’s Free Exercise Clause. The federal judge who heard the case ruled in favor of the pharmacy owners, but was he right to do so? Amar and Brownstein consider the arguments on both sides, focusing especially on the Supreme Court case of Church of Lukumi Babalu Aye v. Hialeah, in which a church sought to sacrifice animals in its rituals even though doing so was against the law. They also consider variations of the fact pattern in the Washington State case itself, and consider whether they might yield different results.

Social Security and the Economy: The President and Congress Should Be Happy That Social Security Is Not Part of the Problem, and They Should Leave It Alone

George Washington law professor and economist Neil Buchanan argues that the current debate about Social Security is dangerously misleading in several ways. Buchanan faults both parties for using inaccurate rhetoric: President Obama, he says, must stop acting as if Social Security is in peril, and both the President and Congress must stop using Social Security as a bargaining chip in negotiations with Republicans. In turn, and most importantly, Buchanan argues, Republicans must stop misrepresenting Social Security’s current financial situation as being dire, when that really is not the case. The best approach now, he argues, is to leave Social Security alone and focus on improving the economy. Buchanan also calls for an end to misleading estimates regarding in what year Social Security will be “bankrupt,” as they only scare and mislead the public. Finally, too, he warns that calls to “Act now to save Social Security” are often plans to weaken Social Security, in disguise.

How Rulings of the Supreme Constitutional Court of Egypt Hold Lessons for Emerging Democracies, and for Our Own

Justia columnist and Cornell law professor Michael Dorf comments on what emerging democracies, and even America’s own long-established democracy, can learn from two recent rulings from the Supreme Constitutional Court of Egypt. As Dorf explains, the rulings, and the political context in which they arose, can teach us much about courts’ role in promoting democracy. He notes that the world has decisively opted for constitutional review, and the protection of individual rights, which are now a standard feature of established democracies around the globe. Dorf notes, however, that constitutional courts in emerging democracies not only must worry about the tyranny of the majority and the protection of individual rights, but must also be concerned that the government will fall prey to a military coup. In addition to commenting on Egypt’s situation, Dorf also cites Pakistan as another instructive example of the role of courts.

Are Teen Flirting Sites Safe? The Skout Experiment Provides a Cautionary Tale

Justia columnist and U. Washington law professor Anita Ramasastry comments on the lessons to be learned from the recent experience of Skout, which initially offered teen and adult flirting sites and apps. In the wake of three separate allegations by teens of rape by an adult whom they met via Skout and who was posing as a teen on the site, Skout has closed down its teen site and app. Ramasastry notes that Skout was always vigilant about the risk of adults impersonating teens, but vigilance, in the end, wasn’t enough. Thus, Ramasastry raises the possibility that society—and especially teens’ parents—should discourage teen meet-up business models that carry the kind of risks that Skout’s teen site did.

Making Your Point: A Special Question & Answer Session About Effective Advocacy, with Ross Guberman

Justia columnist and former counsel to the president John Dean does a Q&A with Ross Guberman, the author of the book Point Made: How to Write Like the Nation's Top Advocates (Oxford 2011). The interview covers how Guberman got into the teaching of legal writing and honed his skills in the field, the effect good writing can have on a case, and the methods and techniques that Guberman uses himself, and teaches others. Readers may be especially interested in Guberman's account of three mistakes that lawyers often make in drafting and presenting their arguments. Finally, Guberman previews his next book, which will comment on well-written judicial opinions.

John Dean’s Notes for His Diary, From The Washington Post’s “Watergate at 40” Event

Justia columnist and former counsel to the president John Dean comments on the “Watergate at 40” event, hosted by The Washington Post, that he attended this past Monday, June 11. The event was held in the Watergate Office Complex, where the infamous break-in at the Democratic National Committee (DNC) occurred. Dean describes the three panels at the event, which focused on (1) the investigation and cover-up; (2) Watergate’s legacy; and (3) Woodward and Bernstein’s role. In addition, the panel offered a tribute to Ben Bradlee, The Washington Post Executive Editor who played an instrumental role, along with Woodward and Bernstein, in breaking the story and placing a continuing spotlight on it, after government investigators had initially made some headway. Dean also relates an interesting anecdote regarding how the Watergate burglars turned off their Walkie-Talkies in the Complex to ensure silence, but as a result, were not alerted to the police's presence in the Complex.

What Penn State, Horace Mann, the Ultra-Orthodox Jewish Community, the Roman Catholic Church, and the Fundamentalist Church of Jesus Christ of Latter-Day Saints Have Taught Us: We Need Child-Sex-Abuse Whistleblower Laws

Justia columnist and Cardozo law professor Marci Hamilton comments on recent revelations of alleged child sex abuse at New York private school Horace Mann, and discusses a number of legal measures that, she argues, can make it more likely that perpetrators of child sex abuse will be brought to justice. Noting the broad array of institutions that have harbored child sex abuse, Hamilton contends that this is a problem that urgently requires effective legal remedies. Among the legal reforms she supports are whistleblower-protection laws for those who report child sex abuse, penalties for failure to report abuse, and extensions of child- sex-abuse crimes’ statutes of limitations.

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 the C.S. Wong Professor of Law at Cornell University. Colb teaches courses in con... 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 the Robert A. Fox Leadership Program Professor of Practice, and Fox Family Pavi... 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

Lesley Wexler
Lesley Wexler

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