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.
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.
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.
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.
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.
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.”
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.
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.
Justia columnist and Cornell law professor Michael C. Dorf comments on the potential impact of the resolution of the legal battle over the PPACA, also known by its critics as “Obamacare.” Various PPACA cases have caused a split among federal appellate courts, such that Dorf predicts that the Supreme Court will likely grant review this Term in a PPACA case. The case would raise the question of the constitutionality of the “individual mandate,” which requires individual Americans to purchase health insurance or pay a penalty for not doing so. Dorf argues that in the end, the Court’s PPACA decision—like Bush v. Gore before it—will have little effect as a legal precedent, but a very large political effect, as many Americans will likely see the Court’s decision, depending on how it comes out, as either a vindication or a repudiation of President Obama’s policy, and perhaps even the President himself.
Justia columnist and former counsel to the president John Dean begins a new series of columns on current Republican political strategies and approaches. Dean describes what is happening now as the return of Nixonian politics, on steroids, and he contends that today, Republican operatives are employing strategies to empower themselves that would never succeed at the ballot box if voters fully understood what was occurring. Dean notes that this attempt to transform our political system is receiving little news coverage, and offer some reasons why, including Americans’ disinterest in “process” issues and the fact that mainstream news organizations are largely controlled by highly profit-driven major corporations, and those companies’ executives often lean toward Republican views. Dean focuses, especially, on the role of the Tea Party, which he describes as “the tip of the conservative iceberg” now, while also contending that the real story is not about the Tea Party, but about other, more mainstream Republicans who are in power today, and their political strategies.
Justia columnist and Cardozo law professor Marci Hamilton continues her ongoing series about the 2012 presidential candidates and their views on religion. In this column, Hamilton considers the views of Congresswoman Michele Bachmann. Hamilton contends that a Bachmann presidency would likely be dominated by evangelical Christianity, and notes that Bachmann sees the separation of church and state as “a myth” and would likely nominate to the federal judiciary only those who share her views. Moreover, Hamilton argues that Bachmann’s religious views would, if she were elected, also influence her foreign policy (which she has suggested would be automatically pro-Israel on religious grounds) and her policies on social issues such as abortion, stem-cell research, the HPV vaccine, and gay rights. Hamilton also notes that although Bachmann claims to support states’ rights, in practice she supports federal action if one of the policies that she herself favors is at issue.
Justia columnist and Cornell law professor Sherry Colb comments on United States v. Jones, a case that the Supreme Court will hear this year, and that The New York Times called “the most important Fourth Amendment case in a decade.” The case raises the question whether police who track a suspect’s movements over time, via a global positioning system (GPS) device, intrude on the suspect’s Fourth Amendment right against unreasonable searches and seizures. Colb covers an earlier High Court precedent involving the older police practice of putting a “beeper” in a container before a suspect loads the container into his vehicle, and then following the beeper’s trail, but she explains why that scenario is very different from the use of GPS. Colb also connects the GPS case, Jones, to the interesting concept of “innocent privacy”—that is, the privacy of innocent people, and everyone’s privacy vis-à-vis the innocent but personal parts of their lives. In addition, Colb contrasts the likely Fourth Amendment statuses of GPS location information versus cellphone location information, which is now frequently procured without a warrant.
In this column, Justia columnist and Hofstra law professor Joanna Grossman winds up her two-part series on the rights of posthumously conceived children. (Such children are born after their father has passed away, and their mother has used his previously preserved sperm to become pregnant.) With both inheritances and Social Security benefits at issue, there are potentially high stakes in this area of law. In this column, Grossman covers the different answers that various state and federal courts have given to the question whether posthumously conceived children have the same rights to inherit from their fathers, and to receive Social Security “surviving child” benefits as a result of their fathers’ deaths, that other children have. Grossman also notes that not just a number of courts, but also twelve state legislatures, have addressed this issue, and explains the conclusions they have reached.
Justia columnist and attorney Julie Hilden comments on a recent decision by a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit. The decision upheld two regulations that were imposed upon sexually oriented businesses in Ohio. The first regulation restricted a business’s hours if it allowed nudity; the second regulation forbade a business’s nude performers from touching each other, and from touching its customers. Hilden explains the Supreme Court nude-dancing decision, Barnes v. Glen Theatre Inc., that formed the backdrop for this case, and examines two of what she argues are the strongest First Amendment concerns that the Sixth Circuit panel’s decision raises.
Justia columnist Vikram David Amar and Justia guest columnist Alan Brownstein, both U.C. Davis law professors, assess the claim of Texas governor and presidential candidate Rick Perry that the U.S. Constitution’s Seventeenth Amendment—which provides for the direct election of U.S. Senators—was a mistake. Amar and Brownstein explain the original Constitution’s provision for state legislative election of Senators, and the thinking behind it, and the genesis of the Seventeenth Amendment. They also assess the Amendment’s costs, but note that if it were repealed, there would be costs to that decision, as well.
Justia columnist, George Washington law professor, and economist Neil Buchanan comments on recent Republican proposals based on the idea that tax cuts for the rich will help curb the recession. Buchanan argues that there is no support, in either economic theory, or in empirical evidence, to conclude that America’s current tax rates are hurting the economy, or that reducing tax rates for businesses and the wealthy will improve the economy and/or reduce unemployment. All such cuts would do, Buchanan contends, is make the rich richer—while also imperiling vital public services.
Justia columnist and Cornell law professor Michael Dorf comments on the ongoing controversy over the fate of the U.S. Post Office. Dorf describes the causes of the Post Office’s troubled state; considers the pros and cons of a possible plan by which Congress would subsidize the Post Office; describes what such a plan could look like in practice; and notes the virtues of opting for a stopgap solution now in light of the reality that long-term forecasts show that the end of the Post Office is ultimately inevitable.
Justia columnist and U. Washington law professor Anita Ramasastry comments on a recent controversy in Missouri, concerning a law that would have banned teachers from becoming the “friends” of their under-18 students on Facebook and other social networking sites that allow private messaging. As Ramasastry explains, the law’s apparent concern was to ensure that teachers would not become sexual predators preying on students, but the effect of the law, if enforced, would have been to cut off positive—and even vital—student/teacher communication as well, ranging from students’ seeking homework help, to students’ seeking counsel and support while contemplating suicide. Ramasastry describes the law and the court battle over it, and considers the Missouri legislature’s and the ACLU’s new proposals for regulation in the state in this area.
Justia columnist and Hunter Human Rights Program Director Joanne Mariner suggests an answer to the following question: Ten years after the terrorist attacks that were said to have “changed everything,” what has actually changed in the protection of human rights, and how did these changes take place? Mariner isolates five distinct periods of government policy, as it has evolved over the post-9/11 years: (1) the directly post-9/11 era of unchecked abuses (especially by the CIA), which was sparked by the post-9/11 Bush Administration claim that the U.S. was waging a war on terror; (2) the era of retrenchment and reassertion, when the Bush Administration was put on the defensive; (3) the attempt, during the last years of the Bush Administration, to establish a legal foundation for its “war on terror” actions; (4) the initial, but short-lived, Obama Administration push to reverse the Bush Administration's approaches; and (5) the current Obama Administration policy era—when, Mariner contends, because President Obama has a more liberal image and generally more liberal politics, he can not only adopt certain abusive policies, but he can also normalize them in a way that President Bush never could have done.
Justia columnist and former counsel to the president John W. Dean comments on the tenth anniversary of the 9/11 attacks, with a special emphasis on the legacy of the attacks for American law. Dean begins by assessing how foreign media sources—whose perspectives, he explains, may be somewhat more detached than Americans’, yet who often interviewed Americans as sources—see the anniversary of 9/11. In addition, Dean contends that, where American law is concerned, the legacy of 9/11 is a baleful one. In support of his claim, Dean points to a post-9/11 proliferation of laws (some with sunset provisions, some without) that, he contends, go beyond all previous limits of constitutional propriety. Dean focuses in particular on the Patriot Act, and the infamous torture memo. All told, Dean concludes, the fallout of the 9/11 attacks has had a highly negative impact on American law.