Justia guest columnist and Cornell Visiting Scholar Antonio Haynes comments on an issue that was raised recently in a Los Angeles Proposition best known as Measure B: Should pornography industry performers be required to use condoms while on set? L.A. voters said yes, but Haynes contends that there is a strong First Amendment argument against the measure, based on the tenet that speech cannot (with very limited exceptions) be regulated based on its content. Although decreasing the incidence of unprotected sex is a compelling government interest, Haynes notes, Measure B does not seem to solve an “actual problem,” to use the Supreme Court’s phrase, as the adult film industry has self-regulated with great effectiveness. Thus, the objection to pornography without condoms seems to arise not from the fear of disease, so much as from the objective of controlling the content of pornography. Ultimately, too, Haynes says, performers’ dignitary interests are at stake—just as all Angelenos’ would be if everyone, not just porn performers, were subject to Measure B.
Justia columnist Vikram David Amar and Justia guest columnist Alan Brownstein, both U.C., Davis law professors, comment on an interesting lawsuit that involves both the Free Speech Clause and the Establishment Clause of the First Amendment. The suit was brought by a group of public high school cheerleaders against the school district that told them to stop displaying religious-themed banners bearing bible verses and proclaiming things like “If G-d is for us, Who Can Be Against Us?” at football games. Does the Establishment Clause forbid what they are doing? And does the Free Speech Clause come into play? Amar and Brownstein address the complex constitutional issues that the case presents.
Justia columnist, George Washington law professor, and economist Neil Buchanan connects the election, Hurricane Sandy, and the well-being of our children and the children of future generations of Americans. Analyzing a Romney/Ryan ad that had expressed worry about “saddling our children with debt,” Buchanan warns that what might be truly worrisome would be, conversely, to fail to spend money in ways that will improve the lives of future generations, with infrastructure high on the list. Buchanan cites Hurricane Sandy as an example, arguing that if floodgates are indeed necessary to protect New York City, then even if taking on debt would be necessary, the floodgates should be built. Buchanan also generalizes his point to apply to other infrastructure and other inter-generational government programs.
Justia columnist and Cardozo law professor Marci Hamilton comments on Mitt Romney’s election loss and on the future of the Republican Party. Hamilton ascribes the loss, among other factors, to Republican candidates’ widely criticized comments on rape and abortion, which many found deeply offensive. She also points to other factors such as (1) Republicans like Paul Ryan’s extreme views, such as the refusal to have the government fund any part of Planned Parenthood’s activities; and (2) the Party’s lack of a laserbeam focus on key issues like jobs and the state of the economy. The result was that women disproportionally voted for President Obama, Hamilton concludes. Hamilton also raises interesting questions about whether—and how—the Republican Party can reshape itself as a viable party, now and in the demographically diverse future—a party that could, in coming years, attract women and people of color in larger numbers.
In the second in a two-part series of columns, Justia columnist and Cornell law professor Sherry Colb continues her commentary on the constitutional issues raised by dog sniffs, in light of two cases in which the U.S. Supreme Court will address the issue. As Colb explains, one case asks whether a dog sniff is itself a search, for Fourth Amendment purposes; and the other asks what is the evidentiary significance of a dog’s positively alerting after a drug sniff for narcotics. Here, Colb builds on her prior commentary on the cases, and also addresses related precedents. In addition, she discusses the complexities that may arise because dogs have minds of their own—and are able to sniff not only drugs but, for example, cancer and pregnancy. Moreover, dogs can also sense humans’ feelings, and will want to please humans with whom they have bonded. Colb considers these and other factors as they play into the Fourth Amendment analysis. She also predicts the likely outcomes of the cases before the Court, and describes the issues the Justices seemed to find salient at oral argument. She also predicts which Justices will be the “swing votes” in the case.
For Election Day, 2012, we have put together several resources to help our readers cast an informed vote. Use these resources as a guide for where to vote and what to take with you. Happy Voting!
Justia columnist and former counsel to the president John Dean comments on the life and times of former Senator George McGovern, who recently passed away. In addition to chronicling the key events of McGovern's life, McGovern’s passionate campaign to eradicate hunger, and his own friendship with McGovern, Dean also comments on the perhaps unlikely friendship between McGovern, a Democrat, and Republican Senator Barry Goldwater—the kind of cross-party bond, forged to serve the good of the nation, that Dean notes that we are, unfortunately, unlikely to see today.
Justia columnist and attorney David Kemp comments on the now-notorious false tweets regarding Hurricane Sandy sent by Shashank Tripathi (Tripathi is a hedge fund analyst and was previously the campaign manager for Republican Christopher Wight's Congressional campaign; he has since been fired.) While many have excoriated Tripathi's tweets as unethical, Kemp addresses the separate question whether they can be penalized consistent with the First Amendment. Thus, Kemp covers past and current Supreme Court precedents that relate to other instances of false and/or damaging speech.
In the first in a two-part series of columns, Justia columnist and Cornell law professor Sherry Colb comments on the constitutional issues raises by dog sniffs, in light of two cases in which the U.S. Supreme Court will address the issue. As Colb explains, one case asks whether a dog sniff is itself a search for Fourth Amendment purposes, and the other asks what is the evidentiary significance of a dog’s positively alerting after a drug sniff for narcotics. Colb examines some of the main factors that may prove important in the cases, and suggests that the Court’s analysis will be significantly improved if it takes into account the differences between a living, breathing dog and a mere evidence-gathering machine.
Justia columnist and Hofstra law professor Joanna Grossman comments on a flagrant case of sexual harassment in a grocery store, which eventually led to litigation that came before the U.S. Court of Appeals for the Second Circuit. The case, as Grossman explains, arose from the store owner’s fiance’s habit of touching sexually, and otherwise sexually harassing, the store’s employees, who were mostly teenage girls. The girls complained, but nothing was done. Ultimately, the store was found liable for sexual harassment. Grossman explains the steps necessary to win such a case, and discusses the question of the scope of the remedy that was imposed upon the store in this case. She also notes that in such cases, both legal remedies (money damages) and equitable remedies (court orders to do or refrain from doing something) are appropriate.
Justia columnist and attorney Julie Hilden comments on a recent school speech case from Missouri in which twin brothers, both high-school juniors, created a blog that derogated fellow students in racist and sexist ways. Hilden argues that it’s no surprise that the brothers were suspended from their school and required to continue their studies elsewhere, given that the U.S. Supreme Court’s decision in Tinker v. Des Moines Indep. Comm. Sch. Dist. allows students to be punished when substantial disruption foreseeably results from speech that they directed at their school. She also notes that it is unlikely that the U.S. Supreme Court would grant review in a case like this one, and describes the kind of school-speech case that might, conversely, be a good candidate for the Court’s review.
Justia columnist and U.C., Davis law professor Vikram David Amar comments on developments relating to the National Popular Vote (NPV) movement and other election reform proposals. The essential idea of NPV is to get various states to sign an agreement requiring each signatory state to cast its electoral college votes not for the candidate who garnered a plurality of popular votes in that state, but rather for the candidate who won the most popular votes nationally. This system, with enough signatories, would ensure that the winner of the Presidential contest would always be the person who had won the largest number of votes from individual voters nationwide. It would thus solve the problem of candidates’ focusing almost exclusively on “battleground states” in their campaigns, and would ensure that each American’s vote truly had equal weight in presidential elections. The importance of the issue is underlined by the fact that Gore won more votes in 2000, but lost the election, and this year, Romney may do the same.
Justia columnist, George Washington law professor, and economist Neil Buchanan argues that the GOP leadership’s current stances are—as Nicholas Kristof also characterized them recently in The New York Times—sociopathic. Buchanan cites examples including the position that illegal aliens should be made so miserable that they will “self-deport,” even though their children too will suffer; and the position that aid to America’s poor should be sharply curtailed, even though that, too, would harm innocent children, with even children’s nutrition programs on the list to be cut. Buchanan takes issue, too, with proposed Romney/Ryan programs that would, he argues, only intensify social inequality, including ones targeting healthcare for the elderly.
Justia columnist and Cornell law professor Michael Dorf comments on a recent decision by a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit, throwing out the conviction of Salim Ahmed Hamdan, a Yemeni who was captured in Afghanistan in 2001. Dorf chronicles Hamdan’s long legal journey, and the repercussions that it has had for U.S. law. Dorf also explains that while the most recent decision regarding Hamdan is narrow, it nevertheless carries symbolic significance, casting doubt on the Bush Administration’s and the Obama Administration’s respective, and similar, detainee policies.
Justia columnist and U. Washington law professor Anita Ramasastry comments on a recent court decision in which two African-American men challenged what they alleged was differential treatment in their auditions for the reality show The Bachelor. With neither The Bachelor nor its sister show, The Bachelorette, ever having had an African-American lead, the plaintiffs saw evidence of racial discrimination when the show, they allege, gave them shorter interviews than other would-be contestants received, and did not ultimately select them to join the show’s cast. Ramasastry explains why the plaintiffs lost in court: the First Amendment protects casting decisions, whether by dramas, comedies, or reality shows. She notes, though, that the lack of court relief here doesn't mean the men were wrong on the merits, but only that they will now need to find another avenue, such as protesting and/or continuing to speak out, in order to make their point.
Justia guest columnist and Touro Law Center professor Rodger Citron comments on the recent Supreme Court argument in an important case centering on the Alien Tort Statute (ATS). As Citron explains, the ATS, enacted by the first Congress in 1789, authorizes federal courts to hear “any civil action by an alien for a tort only, committed in violation of the laws of nations or a treaty of the United States.” But can the ATS be applied to conduct based outside the U.S.? As Citron explains, that is the issue that the conservative Justices brought up at oral argument. Citron predicts, however, that in the end the Court will not limit the ATS’s reach to conduct that occurs within the United States, but that the Court will affirm the lower court’s dismissal of the plaintiffs’ case.
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.
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.
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.
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.