Justia columnist and Hofstra law professor Joanna Grossman continues her two-part series of columns critiquing the Defense of Marriage Act (DOMA)—which was recently the subject of Senate Judiciary Committee hearings. As Grossman notes, a bill is now pending that would reverse DOMA to the extent that DOMA defines marriage, for federal law purposes, as a union between one man and one woman. She describes the varied, pending litigation related to DOMA, and considers some of the reasons DOMA has garnered complaint and opposition: Critics say it imposes unfair disadvantages on married gay couples, and many have observed that DOMA has spawned a bureaucratic nightmare.
Justia columnist, George Washington law professor, and economist Neil Buchanan suggests how, in the future, we can ensure that the debt limit is not, once again, used as a political weapon. He discusses three key solutions: (1) simply eliminating the debt limit via a presidential directive incorporating a Fourteenth Amendment analysis, as The New York Times suggested; (2) and following one of Yale Law professor Jack Balkin’s two suggestions, which are nicknamed “Big Coin” and “Exploding Option.” Buchanan provides background to ensure that readers fully understand each suggestion, and points out a downside to Balkin’s ideas: the public’s confidence in money and the monetary system may turn out to be fragile, if the system is experimented with.
Justia columnist and U.C., Davis, law professor Vikram David Amar argues in favor of America’s adoption of the National Popular Vote (“NPV”) proposal. As Amar notes, California may soon adopt the proposal, and if it does so, that would be a major development in the movement towards a direct national popular election for the Presidency. The essential idea, he explains, is to get states that, together, possess a sufficient number of electoral votes to sign onto an agreement that would require each signatory state to cast its electoral college votes not for the candidate who may have prevailed in that state, but rather for the candidate who won the most popular votes nationally. Amar points out that this idea could be put into effect without a constitutional amendment, considers the details of how the NPV proposal might work, addresses some possible criticisms, and notes that requiring Congressional approval for the proposal to take effect might be wise.
Justia columnist, George Washington law professor, and economist Neil Buchanan continues his commentary on the debt-limit crisis and its resolution. Buchanan contends that there is little to applaud in the resolution of the crisis—for, he says, we have now embarked on a path that will only make a sick economy much sicker, and could even push the country back into recession. In light of these realities, he argues, we need to ask how we got here: How did we reach the point where both parties became committed to an economic strategy that is so detached from reality? Buchanan stresses, especially, that America should have focused on unemployment, not spending reductions.
Justia columnist Joanne Mariner, an attorney and the head of Hunter College’s Human Rights Program, discusses the ongoing humanitarian emergency in Somalia. Mariner explains that with tens of thousands of people having already died of starvation, and half a million children now at risk of dying, the situation is dire and pressing. She sets forth some of the key reasons that aid organizations are finding it difficult to provide assistance in the country—from fighting in the capital; to the aggressive tactics of the militant group that controls much of Somalia, Al Shabaab; to U.S. federal laws that that bar material assistance to that group (which is categorized by the United States as a terrorist group). Mariner details the substance and effect of the U.S. laws at issue, and the conundrum of attempting to get humanitarian aid into an area where it may be siphoned off by armed groups, and where even non-Americans can face U.S. prosecutions under the U.S. “material assistance” law. Finally, Mariner explains a new U.S. interpretation of the law at issue, which may somewhat improve the situation—but she also urges the U.S. to go further, in order to alleviate fears that humanitarian aid will be miscategorized as aid to terrorism.
Justia columnist and U. Washington law professor Anita Ramasastry provides important background on the United States’ debt ceiling debate, explaining exactly why the United States—unlike other countries—has only one option when the risk of sovereign default looms: self help. Ramasastry first considers how other countries typically handle sovereign default or distress, then covers the reasons why the United States’ situation is very different, and concludes by examining why there has been such a great need for Congress and President Obama to reach a resolution of this issue.
Justia columnist and Cornell law professor Michael Dorf comments on what may happen if the debt-ceiling deal that President Obama announced on Sunday, August 31, is somehow derailed—or if (as is almost certain to be the case) future Presidents face constitutional-law issues that are philosophically similar to the one President Obama may have narrowly avoided here. In discussing the debt-ceiling issue and its constitutional dimensions, Dorf describes the trilemma the President may face; raises the question whether the constitutionality of a measure must be an either/or proposition or if there are intermediate options of a measure's being, say, “very unconstitutional” or “a little unconstitutional”; and describes America’s historic hostility to balancing different constitutional values against one another.
Justia columnist and former counsel to the president John W. Dean comments on the Tea Party movement. Dean contends that, far from being a truly new force, the Tea Party’s membership is recognizable as consisting of the very kind of authoritarian conservatives America has often seen in past politics. Drawing on the work of Professor Robert Altemeyer, who devoted much of his career to studying the authoritarian personality, Dean notes the telltale characteristics of authoritarian conservative; argues that each of these signal qualities can be seen clearly in Tea Party movement adherents; and cautions that authoritarians do not tend to do well, over the long haul, in a democracy.
Justia columnist and Cardozo law professor Marci A. Hamilton urges that the Catholic Church urgently needs to take responsibility—and foster an ethic of accountability—regarding clergy child-sex-abuse cases. In describing the path that she argues the Church must take, Hamilton compliments a recent speech by Irish Prime Minister Enda Kenny, and a book by Jason Berry on money and the Church. As she explains, these writings, too, call for responsibility and accountability from the Church, and for the enforcement of civil law by the courts, in clergy child-sex-abuse cases.
Justia columnist and Cornell law professor Sherry Colb clarifies for readers one of the most complicated issues within the Supreme Court’s jurisprudence: the suppression of evidence that the police have obtained illegally. Colb focuses, in particular, on a case decided during the past Supreme Court term that presented a thorny question: If police follow appellate court precedent while performing a search, but the Supreme Court later reverses that very precedent, was the search legal (because appellate case law authorized it at the time) or illegal (because the Court decided later that the appeals court had erred)? In addition to discussing this issue, Colb also focuses on a number of major Court decisions in the area, to shed light on the evolution of Court doctrine.
In the first in a two-part series of columns about the Defense of Marriage Act (“DOMA”), Justia columnist and Hofstra law professor Joanna Grossman comments on the origins of DOMA; the reason DOMA did not have any practical implications until 2004; and why, even now, Section Two of DOMA has had no real effect. In Part Two of the series, Grossman will go on to consider Section Three of DOMA, which has had serious real-life implications, for it says that same-sex marriages cannot be recognized for any federal purpose.
Justia columnist, attorney, and author Julie Hilden comments on a recent, split decision from a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit. As Hilden explains, the case involved the “true threats” doctrine, which determines when a statement is an illegal threat, and when it is protected by the First Amendment. The defendant’s message-board postings about then-candidate Obama were ominous, but were they full-fledged threats under the legal test? Hilden explains why two Ninth Circuit judges said no, but one said yes.
Justia columnist and U.C. Davis law professor Vikram David Amar completes his two-part series of columns on two key decisions from the U.S. Court of Appeals for the Sixth Circuit. His last column focused on the Circuit’s Obamacare ruling; this one focuses on the Circuit’s ruling on an issue relating to affirmative action. Amar describes two different lines of Supreme Court precedent that offer different ways of analyzing affirmative action cases, and considers the possibility that the Court will take the opportunity—by reviewing this or another lower-court decision—to clean up apparent tensions between these two lines of High Court cases.
Justia columnist Joanne Mariner, attorney and director of Hunter College’s Human Rights Program, discusses the situation in Somalia, which is experiencing a famine in the midst of armed conflict—leading refugees to flee the country for Kenya and Ethiopia. The situation, as Mariner explains, has created a humanitarian emergency and has led to a horrifyingly high death rate of both refugees and those still in Somalia. Though the Somali regime’s ban on foreign aid has been lifted, Mariner explains that extremely broad U.S. restrictions on “material support to terrorist organizations” have made innocent humanitarian groups wary of providing aid in areas controlled by Al Shabaab, the Al Qaeda-affiliated Islamist group that controls most of Somalia’s territory. Mariner calls for expedited licenses ASAP, so that humanitarian groups can operate free of fear, and calls for legal reform for the future.
Justia columnist, attorney, and author Julie Hilden comments on a recent development in the criminal case against Dominique Strauss-Kahn: The accuser has filed a defamation claim against the New York Post for articles suggesting she has worked as a prostitute. Hilden comments on the timing of the defamation action, and the decision, in that action, to target only the Post’s claims that she is a prostitute, and not its other potentially damaging claims about her—including its claims that she has lied.
Justia columnist and Cardozo law professor Marci Hamilton comments on the reality television show Sister Wives and the litigation that is connected to it. The family depicted on Sister Wives—consisting of one man, four “wives,” and 16 children—fled Utah to avoid potential bigamy charges. (Nevada’s bigamy law defines the offense in a less restrictive way than Utah’s does.) Now, the family’s lawyer, Jonathan Turley, is challenging Utah’s law as unconstitutional. Hamilton contends, to the contrary, that the law is perfectly constitutional, and explains the history of the law and the related precedent in support of her argument.
Justia columnist and U. Washington law professor Anita Ramasastry covers an interesting angle on the still-unfolding News of the World hacking scandal: the possibility of not only British, but also U.S., civil suits and criminal charges against the hackers. As Ramasastry explains, several British celebrities, including Jude Law and David Beckham, believe that their cellphones were hacked while they were in the United States. Even more disturbingly, it is possible that the cellphones of 9/11 victims were also hacked. Ramasastry details the U.S. laws that might apply to these cases, and other potential cases in which cellphones were hacked while their owners were within U.S. jurisdiction and accessing U.S. cellular networks. Ramasastry also offers advice to ordinary Americans who want to make sure that they are protected from hacking while using their cellphones.
Justia columnist and Cornell law professor Michael Dorf weighs in on the debate over whether Senator Mitch McConnell’s plan to prevent the federal government from defaulting on its obligations is constitutional. Dorf explains McConnell’s plan and analyzes three possible constitutional objections to it, concluding that none of these objections is, in the end, persuasive. Indeed, Dorf suggests that the more closely one looks at the plan, the more clear it is that it should be a first choice among possible solutions.
Justia columnist and Hofstra law professor Joanna Grossman covers the bigamy case that may soon arise from the reality TV show Sister Wives. As Grossman explains, the family at issue consists of a man, his four wives (one via legal marriage, and three via “spiritual marriage”) and his sixteen children and stepchildren. The family fled from Utah to Nevada to evade possible bigamy charges from Utah authorities. Grossman contrasts the bigamy laws of the two states, and considers whether the Supreme Court precedent of Lawrence v. Texas—the 2003 case where the Supreme Court held that the constitutional right of privacy includes a right of adults to enter into consensual, intimate relationships without interference from the state—protects bigamists.
Justia columnist and former counsel to the president John Dean comments on the voicemail hacking scandal surrounding News Corp.’s News of the World, drawing a parallel between the unfolding of this scandal and the unfolding of Watergate. Dean applies the framework sketched out in Cambridge sociologist John B. Thompson’s 2000 work Political Scandal: Power and Visibility in the Media Age to predict what will happen next to Rupert Murdoch, the Chair and CEO of News Corp.