The End of an Unjust Law: The Second Circuit Strikes Down DOMA and Sets the Stage for Supreme Court Review

Justia columnist and attorney David Kemp comments on the recent decision by the U.S. Court of Appeals for the Second Circuit striking down Section 3 of the Defense of Marriage Act (DOMA), which defines marriage, for federal purposes, as being between a man and a woman. Kemp discusses why the Second Circuit held that the Constitution’s Equal Protection Clause required the application of intermediate scrutiny. Kemp also notes that the Second Circuit was the first court facing this issue not to also analyze the issue using a lower level of scrutiny. In addition, he discusses a number of other cases decided by courts across the country, that have confronted the issue of what level of scrutiny is proper for classifications based on sexual orientation—and why such cases may well lead to eventual Supreme Court review.

How Mitt Romney Forgot His Legal Thinking at the Hofstra Debate

Justia columnist and former counsel to the president John Dean notes that Mitt Romney attended both law school and business school, and contends that Romney forgot to think like a lawyer at the recent Hofstra debate. Before commenting specifically on Romney, Dean addresses the controversy about whether lawyers think differently than other people. One position is that thinking like a lawyer is simply thinking clearly and critically; the other position is that thinking like a lawyer is a unique skill that only those who have learned that skill in law school possess, in part because lawyers are taught to follow past precedent, even if they think it is wrongly decided—which is not the case in other professions. Dean notes that lawyers must also meet the requirements of the bar, and follow the jurisdiction’s Rules of Professional Conduct. While Romney is an attorney, Dean argues, he is much more of a businessman, and Dean notes that GOP businessmen have, over history, fared poorly in the Oval Office, and cites both Herbert Hoover and George W. Bush as examples.

How Religious Bullies Have Recently Sought to Impose Their Views on Others, in Pakistan and Here in the U.S.

Justia columnist and Cardozo law professor Marci Hamilton comments on an incident in Pakistan in which a 14-year young woman was shot by the Taliban because she voiced her view that girls should be educated; and an incident here in the U.S. where the American Family Association—which is characterized by the Southern Poverty Law Center as a hate group—has essentially come out in favor of the bullying of homosexual children on Mix It Up at Lunch Day, which is meant to break up cliques, even if just for one day. Hamilton argues that the first incident shows the need for the international recognition of civil rights, and of the rule of law, and the second incident involves a particularly repellent form of homophobia that has no place in our public schools. Each incident is made all the worse, Hamilton suggests, because children are the victims. Hamilton reminds us, too, that we are fortunate here in the U.S. to have the benefit of the First Amendment's Establishment and Speech Clauses.

Binders for Women, Blinders for Romney

Justia columnist and Hofstra law professor Joanna Grossman comments on the second presidential debate, and especially on Mitt Romney’s now-famous comment about “binders full of women,” which has now become an Internet meme. Grossman argues that the comment reveals Romney’s dated and uninformed view of women in the workplace. She also notes that Romney, while avoiding the question about pay inequity that led to the “binders” comment, revealed that he believes that the only workers who need flexible schedules are women, apparently due to the assumptions that all women have children, and that only women perform child care.

The Recent Supreme Court Affirmative Action Oral Argument Zeroes in on the Concept of “Critical Mass”

Justia columnist and Cornell law professor Michael Dorf explains the origin and meaning of the concept of having a “critical mass” of minority students in the affirmative action context, and the role that this concept played in a recent Supreme Court oral argument relating to affirmative action at the University of Texas. Without a critical mass of minority students, it has been argued, such students will feel isolated in class and on campus, and there may be little diversity within the group of minority students itself. For these reasons, the University of Texas gives such students a special “plus factor” in admissions. Dorf explains how both conservatives and liberals on the Court have come to place what he argues is excessive weight on the “critical mass” concept, when it comes to affirmative action in education. He also summarizes the conservative Justices’ critique of the concept, but contends that that critique is itself flawed.

When Your Daddy Is Not Really Your Daddy: A Man Successfully Sues His Ex-Wife for Paternity Fraud Damages

Justia columnist and Hofstra law professor Joanna Grossman discusses the law relating to paternity fraud—that is, to instances when women falsely claim that one man has fathered their child, when in fact, the child's father was another man. Grossman focuses on a Tennessee case that fits that very scenario. There, the man who was falsely led to believe that a child was his, and who consequently paid child support for that child, sued his ex-wife for damages, and won on his claim for intentional misrepresentation of paternity. As Grossman notes, a few other states take approaches similar to Tennessee's. Grossman also covers the approach that the Uniform Parenthood Act (UPA) takes to this issue.

Eroticized Violence and Corporal Punishment in Public Schools: A Controversy Over Males Spanking Female Students, and Its Implications

Justia guest columnist and Cornell Law Visiting Fellow Antonio Haynes comments on a recent controversy in which parents of two public school students did not object to their daughters undergoing corporal punishment (specifically, paddling), but did object to the punishment being carried out by men, rather than women. Haynes points out that, upon closer examination, the issue here is not actually about sex, but about sexual orientation; the parents assumed the males conducting the spankings were straight and thus thought that they might find performing the spankings erotic. Noting that corporal punishment in the schools has not been ruled by the Supreme Court to be unconstitutional, and that 19 states still allow it, Haynes suggests that issues like who may administer a spanking tend to distract us from asking deeper questions such as why we still accept corporal punishment in our schools, and why—if we trust school officials to paddle students—we do not also trust them not to harbor erotic motives while doing so.

The Controversy Over a Teacher’s Criticism of a Student’s Romney/Ryan T-Shirt, and a Possible Solution for the Future

Justia columnist and attorney Julie Hilden comments on the recent controversy over a Philadelphia public school geometry teacher's deriding student Samantha Pawlucy for wearing a Romney/Ryan T-shirt. The incident blew up into a full-blown controversy, with Romney personally calling the girl and speaking with her parents. Hilden parallels the incident to the key 1969 Supreme Court student-speech case, Tinker v. Des Moines Ind. Comm. Sch. Dist., in which students near Pawlucy's age wore black armbands in school in order to protest the Vietnam War. Hilden also argues that Pawlucy’s is an easy case, and that she would have a much harder First Amendment case, had the incident occurred in a History or Social Studies class. Finally, Hilden questions whether this was a case of teacher/student bullying, and suggests that teachers and students alike should be required to learn basic school-speech First Amendment tenets.

Was Justice Scalia Right That Many Contentious Constitutional Issues Are “Easy” to Resolve?

Justia columnist and U.C., Davis law professor Vikram Amar takes strong issue with Justice Scalia’s recent remark that certain constitutional questions are “easy”—including questions relating to the constitutionality of the death penalty, laws restricting abortions, and limits on the rights of gays and lesbians to engage in homosexual activity. Amar argues that even if one uses Scalia’s own interpretive method of originalism, the answers to such constitutional questions are far less easy than Scalia claims them to be; and Amar cites a number of interesting examples to prove his case. Amar also contends that a full approach of originalism would go much further than the examples Scalia gives, would destroy important and basic contemporary Court precedents, and thus would seriously disrupt constitutional law as we know it. Finally, Amar contends that the counterarguments that Scalia might make to the objections that could be raised regarding his views would only get him into deeper trouble analytically.

Would I Lie to You? In the Debate and Elsewhere, Romney and Ryan Exploit the Manipulative Tactics of Car Salesmen (With Apologies to Car Salesmen)

Justia columnist, George Washington law professor, and economist Neil Buchanan comments on why President Obama was widely perceived as losing the first presidential debate. Buchanan, who himself has a long history as a debater and debate coach, contends that one important problem for Obama was that Romney frequently said things that were outright false, and yet, Obama could not call him a liar, for that would run afoul of Americans’ tendency to believe what other say, and their aversion to call a person on falsehoods, because it seems so rude to do so. Buchanan thus contends that Romney’s debate tactics preyed on Americans’ deep-seated tendency to believe the best of others—and argues that Ryan uses similar argumentative strategies as well. In the first debate, Buchanan notes, Obama opted not to say “You’re lying, Governor,” as some commentators thought he should have, in retrospect. That raises an interesting question: Will he do so in the next Presidential debate?

Is Cellphone Tracking Okay If There’s No Trespass? A Sixth Circuit Panel Says Yes: Part Two in a Two-Part Series of Columns

In Part Two in a two-part series of columns on an interesting set of Fourth Amendment issues, Justia columnist and Cornell law professor Sherry Colb continues to address the question whether law enforcement may constitutionally, without a warrant or probable cause, use global positioning technology to track a suspect’s whereabouts through his cellular phone. Specifically, here in Part Two, Colb considers the two possible ways in which the Supreme Court uses the phrase “reasonable expectations of privacy” in practice in Fourth Amendment cases. In the phrase, Colb notes, “reasonable” may mean “empirically realistic,” but it also may mean “morally justifiable.” Colb gives examples of Supreme Court and Sixth Circuit cases in which the phrase is used in these two different ways. In addition, she examines the exclusionary rule’s role here—noting that the rule, which forbids evidence from being admitted in court if it was obtained unconstitutionally, may in concrete cases seem to simply help out criminals, but at a more abstract theoretical level, protects us all from police misconduct. Colb also predicts that the Supreme Court will need to revisit these issues sooner, rather than later, to ensure that the law is clear.

Biometrics in the School Lunch Line: Why Parents Should Be Concerned About the Privacy Implications of This Trend

Justia columnist and U. Washington law professor Anita Ramasastry comments on the use of biometrics in school lunch lines and elsewhere in schools. More specifically, she notes, schools are using an infrared scanner that identifies children’s unique palm and hand vein patterns, and converts these patterns into an algorithm through which the child can be recognized quickly and uniquely by a hand scan. Ramasastry raises privacy concerns about this kind of scanning: Could it lead kids to see other compromises of their privacy as commonplace? Will the databases that contain the scans be used for other purposes—even when the kids become adults? Might law enforcement attempt to use the databases of the hand scans? And what about parents with religious objections to schools’ using the hand scans on their children? At the very least, Ramasastry suggests, the scanning system should be “opt in” and not “opt out,” so that parents can think carefully about allowing their children to become part of the scanning system, and thus part of the related database.

A Chicago Judge Rules in Favor of “Occupy Chicago” Protesters: Why He Made The Right First Amendment Call

Justia columnist and attorney Julie Hilden comments on an important recent First Amendment ruling by a Chicago judge, Thomas More Donnelly. Judge Donnelly ruled in favor of Occupy Chicago protesters who broke the 11:00 p.m.-to-6 a.m. curfew for Grant Park, and were consequently arrested. Significant in Judge Donnelly's decision were the Illinois Constitution’s especially broad right of assembly; the fact that, in 2008, Obama rally participants were allowed to break the curfew in Grant Park without suffering arrest or other consequences; and the poor treatment that the Occupy Chicago protesters had earlier endured from the Chicago police, before the Grant Park arrests. Hilden argues that Judge Donnelly was correct to rule for the protesters.

The First 2012 Presidential Debate: How the Incumbent Got Trapped

Justia columnist and former counsel to the president John Dean argues that Mitt Romney’s win in the first presidential debate will prove to be a Pyrrhic victory, which will also help the Democrats. Dean discusses presidential debates from their very beginning, with Kennedy versus Nixon in 1960, up to the present. In commenting on the first Obama/Romney debate, Dean describes the “incumbent’s trap,” which he defines as the ability of the challenger to force the incumbent to defend his record—for even a strong record can be criticized, and as Americans, we can be unrealistic about what we expect our presidents to accomplish while in office. Meanwhile, the challenger can promise voters the moon. Numerous incumbents, Dean notes, have fallen into this very trap, though in Clinton/Dole, Clinton managed to avoid it by dominating the debate. Dean then analyzes the Obama/Romney debate—arguing that it needed much more moderation and fewer open-ended topics. Ultimately, though, Dean contends that Obama’s loss there will have a silver lining: Post-debate, the Obama team can now correct the many instances where Romney stretched or outright ignored the truth, and Democratic voters will be reminded that an Obama win is far from a foregone conclusion.

A Federal Judge Upholds the Women’s Health Regulations of the Affordable Care Act Against a Free Exercise of Religion Challenge

Justia columnist and Cardozo law professor Marci Hamilton comments on a recent decision from a federal district judge regarding employers’ duties under the Affordable Care Act (ACA). The case arose when the Chairman of a for-profit company, who is Catholic, objected to the ACA’s requirements that his employee health plan must cover contraception and sterilization. Specifically, the Chairman claims, among other things, that his constitutional right to the free exercise of religion has been violated by the requirement. Hamilton, citing several U.S. Supreme Court cases, argues that the Chairman is wrong, and that if his position were to be accepted by the courts, then we would be on a dangerous slippery slope, for even minimal burdens on religious exercise could then lead to important consequences for those who are of other religions, or no religion at all. In addition to addressing these constitutional issues, Hamilton also discusses the issues raised in this area by the Religious Freedom Restoration Act (RFRA).

Is Cellphone Tracking Okay If There’s No Trespass? A Sixth Circuit Panel Says Yes: Part One in a Two-Part Series of Columns

In Part One in a two-part series of columns on an interesting set of Fourth Amendment issues, Justia columnist and Cornell law professor Sherry Colb discusses the question whether law enforcement may constitutionally, without a warrant or probable cause, use global positioning technology to track a suspect’s whereabouts through his cellular phone. Previously, Colb explains, the U.S. Supreme Court held in United States v. Jones that police need a warrant and probable cause to attach a global positioning device to a vehicle and thereby track a suspect’s whereabouts. But now, the U.S. Court of Appeals for the Sixth Circuit has held that police may, without a warrant or probable cause, use global positioning technology to track a suspect’s whereabouts through his cellular phone. Colb examines the legal concepts that the Supreme Court and Sixth Circuit decisions invoke, including those of trespass, and of privacy, and comments on the court’s analysis.

I See London, I See France: Upskirting and the Law

Justia columnist and Hofstra law professor Joanna Grossman, and Justia guest columnist and Stanford law professor Lawrence Friedman comment on the law regarding the despicable practice of “upskirting.” As Grossman and Friedman explain, upskirting is the secret taking of photos or videos with a camera that is angled so as to look up a woman’s skirt. They begin by discussing expectations of privacy, and go on to consider the particular invasion of privacy that is perpetrated through upskirting. They then note that while one might assume that upskirting (and its counterpart, downblousing) in a public place would be illegal and penalized in every jurisdiction, in fact that is not the case. Grossman and Friedman explain the puzzling legal status of upskirting in many jurisdictions, and comment on why the current law in this area often defies our intuitions about privacy—though some recent state laws are now authorizing punishments for upskirters.

An Educated Electorate: Essential to a Robust Democracy

Justia guest columnist and Loyola Law School professor Paula Mitchell discusses the high costs of the death penalty in California and suggests that life in prison without the possibility of parole is a more expeditious alternative. Mitchell describes the different components contributing to the expense of having the death penalty, including direct appeals and habeas corpus petitions, finding that the total costs far exceed a system where life without the possibility of parole is the maximum sentence. Mitchell then explains the initiative that will appear on the ballot in California in November 2012—Proposition 34—which will give California voters an opportunity to reform the state’s penal system by replacing the costly death penalty with life in prison without the possibility of parole.

Assessing California’s New Law (And Others Somewhat Like It) That Tries to Regulate Funeral Demonstrations Without Violating the First Amendment

Justia columnist Vikram Amar and Justia guest columnist Alan Brownstein, both U.C., Davis law professors, comment on California’s law attempting to regulate demonstrations at funerals, as well as similar efforts by the federal government and other states. Amar and Brownstein consider whether such laws are consistent with the First Amendment. As they note, the issue has arisen due to the activities of the Westboro Baptist Church, a Kansas-based family group that has shown up to picket near the sites of funerals—including, often, military funerals. One of the group’s messages is that America is too tolerant of homosexuality. The group’s activities, Amar and Brownstein note, have already been the subject of a Supreme Court ruling, Snyder v. Phelps. In addition to analyzing the Snyder case, Amar and Brownstein discuss another analytical framework that they argue would better suit such cases than the one the Court invoked, and consider related questions such as how broad a no-picketing zone can be imposed to protect mourners’ privacy, and how long that zone can last, before and after a funeral.

The Rich, the Poor, and Changes Over Time: How Mitt Romney’s Condemnation of People Who Pay No Federal Income Taxes Conflicts With a Republican Talking Point About Income Mobility

Justia columnist, George Washington law professor, and economist Neil Buchanan debunks Republican presidential candidate Mitt Romney’s claim that 47 percent of Americans don’t pay taxes. First, Buchanan points out that virtually all Americans pay taxes every year, if one counts payroll taxes, excise taxes, indirect taxes, state and local taxes, corporate taxes that are passed on to workers in the form of lower wages, and more. Second, Buchanan notes that, over a lifetime, a person may, for very good reasons, have non-taxpaying years—for instance, when he or she is a student—mixed with taxpaying years, suggesting that Romney is wrong that non-taxpaying is always a part of a culture of victimhood. Buchanan also contends that it is a contradiction for Republicans to look at income mobility in America over time, and yet to look at only an annual snapshot when it comes to income taxes.

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, an economist and legal scholar, holds the James J. Freeland Eminent Scholar... 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

Samuel Estreicher
Samuel Estreicher

Samuel Estreicher is the Dwight D. Opperman Professor, Director, Center for Labor and Employment... more

Leslie C. Griffin
Leslie C. Griffin

Dr. Leslie C. Griffin is the William S. Boyd Professor of Law at the University of Nevada, Las... 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 Fels Institute of Government 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

Austin Sarat
Austin Sarat

Austin Sarat is Associate Provost, Associate Dean of the Faculty and William Nelson Cromwell... more

Lesley Wexler
Lesley Wexler

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