HOT TOPICS


Abortion

Gonzales v. Carhart: The Supreme Court Once Again Considers "Partial-Birth Abortion" by Sherry Colb (Oct. 18, 2006)
FindLaw columnist and Rutgers law professor Sherry Colb discusses the likely outcome of the Supreme Court's new case on "partial-birth" abortion. Predicting it is likely the Court will uphold the federal Partial Birth Abortion Ban Act, Colb analyzes supporters' claim that partial-birth abortion is tantamount to infanticide. In the course of the argument, Colb draws not only on the reasoning of abortion precedents, but also on the reasoning of precedents dealing with euthanasia and the right to refuse medical treatment.

The New Supreme Court Term: Justice Kennedy's Pivotal Role in Abortion and Race Cases by Edward Lazarus (Sep. 28, 2006)
FindLaw columnist, attorney, and author Edward Lazarus discusses the important role "swing" Justice Anthony Kennedy is expected to play over the Supreme Court term beginning this October. In two key hot-button areas of race and abortion, Lazarus explains, Kennedy's vote may be controlling -- yet observers are uncertain as to which side of cases he will favor. As Lazarus explains, the cases where Kennedy may play the greatest role concern "partial birth" abortion and race-based assignment of public school pupils.

Misconceiving Reproductive Rights: The Crucial Difference Between "Pro-Choice" and "Pro-Abortion" by Sherry Colb (Aug. 22, 2006)
FindLaw columnist and Rutgers law professor Sherry Colb discusses what is -- and is not -- implied by taking a "pro-choice" position on abortion. Colb argues that it is a fallacy to suggest that being "pro-choice" implies that one ought to favor abortion in cases where the baby will be disabled, or ought to have an abortion if the father doesn't want a child. She reminds us that the "choice" at issue is that of the mother -- and if she has embraced a pro-choice stances, that also means the choices from there on out ultimately belong to her alone.


First Amendment


The Roberts Court and the Establishment Clause, Part Two: The Consequences of the Probable Shift from An "Endorsement" to a "Coercion" Test by Vikram Amar and Alan Brownstein (Nov. 10, 2006)
FindLaw columnist and U.C. Hastings law professor Vikram Amar, and FindLaw guest columnist and U.C. Davis law professor Alan Brownstein, further discuss the way the Roberts Court's interpretation of the Establishment Clause may change, now that Justice O'Connor has been replaced by Justice Alito. Amar and Brownstein contend that it's likely that, when confronted with the question of whether government-sponsored displays of religious text or images are constitutional, the Roberts Court will move away from the test Justice O'Connor favored -- the "endorsement" test -- to a "coercion" test. The change, they note, may end up having negative consequences for members of minority religions.

A Different Take on the Supreme Court’s Recent Decision Concerning Law Schools’ First Amendment Rights and Campus Military Recruitment by Vikram Amar (Mar. 17, 2006)
FindLaw columnist and U.C. Hastings law professor Vikram Amar, and FindLaw guest columnist and U.C. Davis law professor Alan Brownstein, together offer an interesting take on a recent, controversial Supreme Court ruling. The ruling held that a federal statute forcing law schools to afford equal on-campus recruitment privileges to military and civilian recruiters did not violate the First Amendment rights of law professors or law schools. Amar and Brownstein contend that the ruling reached the right result, but did not persuasively distinguish a number of Court precedents that cut the other way.


Fourth Amendment

Open the Door and Let Me In (Please)! A New Jersey Supreme Court Ruling Approves Suspicionless "Consent" Searches of Homes by Sherry Colb (Oct. 4, 2006)
FindLaw columnist and Rutgers law professor Sherry Colb discusses the New Jersey Supreme Court's recent ruling, interpreting the New Jersey state constitution's counterpart to the Fourth Amendment, regarding "consent" searches of homes. Colb contends that the distinction that the court made to justify its different standards for home and car searches is unpersuasive.


Fifth Amendment


[Coming Soon]


Eighth Amendment


[Coming Soon]


Civil Rights / Discrimination

The Supreme Court Decides Whether Race-Based Pupil-Assignment Systems Are Constitutional by Edward Lazarus (Dec. 7, 2006)
FindLaw columnist, attorney, and author Edward Lazarus discusses the recent oral argument in, and the constitutional issues raised by, twin cases regarding the use of race-based "tiebreakers" in the assignment of pupils to particular public schools within a school district. Lazarus notes that, based on the questioning at oral argument, the Supreme Court may be poised to both rule against the school districts and adopt a line of reasoning that, he argues, will betray the true legacy of Brown v. Board of Education.

Why the Supreme Court Is Right to Be Skeptical of Race-Based Assignment Systems For Public School Students by Douglas Kmiec (Dec. 6, 2006)
FindLaw guest columnist and Pepperdine law professor Douglas Kmiec argues that the Supreme Court is right to approach with skepticism two school districts' attempt to defend their race-based pupil assignment systems. Given the Court's past precedents stating that government race-neutrality is the central mandate of Equal Protection doctrine, Kmiec contends that these systems are very difficult to defend. He also takes issue with Justice Ginsburg's suggestion that this context may present an easier case than when race is used as a factor in selective college and graduate-school admissions processes.

Ledbetter v. Goodyear: The Supreme Court Considers Procedural Technicalities That Perpetuate the Gender Wage Gap, Part Two of a Two-Part Series by Joanna Grossman and Deborah Brake (Nov. 27, 2006)
In the second column in their two-part series, FindLaw columnist and Hofstra law professor Joanna Grossman, and FindLaw guest columnist and Pittsburgh law professor Deborah Brake, discuss workplace realities when it comes to gender-based pay discrimination. These realities, they argue, suggest that the Supreme Court should rule in favor of the plaintiff in a case that raises the issue of when a claim for discrimination should be brought -- for forcing plaintiffs to sue too early is unfair in light, for example, of the fact that employees often have scant knowledge of others' pay.
See also: The Supreme Court Considers Procedural Technicalities That Perpetuate the Gender Wage Gap: Part One

What's The Matter With a False Arrest?: The Supreme Court Considers the Statute of Limitations Defense by Sherry Colb (Nov. 1, 2006)
FindLaw columnist and Rutgers law professor Sherry Colb discusses an interesting issue, now before the Supreme Court, which is at the intersection of civil rights and criminal law. The Court will have to decide when the statute of limitations began to run in the case of Andre Wallace, who was unconstitutionally subject to a false arrest, and now is suing the government for damages based on its violation of his Fourth Amendment rights. Colb argues that, under the correct constitutional analysis, Wallace's suit is still timely.

The New Supreme Court Term: Justice Kennedy's Pivotal Role in Abortion and Race Cases by Edward Lazarus (Sep. 28, 2006)
FindLaw columnist, attorney, and author Edward Lazarus discusses the important role "swing" Justice Anthony Kennedy is expected to play over the Supreme Court term beginning this October. In two key hot-button areas of race and abortion, Lazarus explains, Kennedy's vote may be controlling -- yet observers are uncertain as to which side of cases he will favor. As Lazarus explains, the cases where Kennedy may play the greatest role concern "partial birth" abortion and race-based assignment of public school pupils.


Criminal Law / Procedure

A Maryland State Court Rules that Women May Not Withdraw Consent After Penetration: The Perils of Relying on History by Sherry Colb (Nov. 15, 2006)
FindLaw columnist and Rutgers law professor Sherry Colb discusses a Maryland rape case in which a jury's question led to the issuance of a controversial decision from the state's intermediate appeals court -- a decision Colb argues that Maryland's highest court ought to reverse. The appeals court held that the harm in a woman's rape lies in her "deflowering," and thus that forcibly continuing sex after consensual penetration is not rape. Colb argues that the court was wrong to import archaic sexist beliefs into its analysis of the current state statute.

What's The Matter With a False Arrest?: The Supreme Court Considers the Statute of Limitations Defense by Sherry Colb (Nov. 1, 2006)
FindLaw columnist and Rutgers law professor Sherry Colb discusses an interesting issue, now before the Supreme Court, which is at the intersection of civil rights and criminal law. The Court will have to decide when the statute of limitations began to run in the case of Andre Wallace, who was unconstitutionally subject to a false arrest, and now is suing the government for damages based on its violation of his Fourth Amendment rights. Colb argues that, under the correct constitutional analysis, Wallace's suit is still timely.


Open the Door and Let Me In (Please)! A New Jersey Supreme Court Ruling Approves Suspicionless "Consent" Searches of Homes by Sherry Colb (Oct. 4, 2006)
FindLaw columnist and Rutgers law professor Sherry Colb discusses the New Jersey Supreme Court's recent ruling, interpreting the New Jersey state constitution's counterpart to the Fourth Amendment, regarding "consent" searches of homes. Colb contends that the distinction that the court made to justify its different standards for home and car searches is unpersuasive.

What Kind of Justice Will Samuel Alito Be? A Recent Death Penalty Decision Provides Some Insights by Edward Lazarus (May 11, 2006)
FindLaw columnist, attorney and author Edward Lazarus discusses the way that both Chief Justice Roberts and Justice Alito have defied the expectations created by their records, and in their confirmation hearings. Lazarus focuses in particular on the first decision authored by Alito, for a unanimous Court, in a death penalty case (one in which Lazarus was among the attorneys representing the petitioner). He notes interesting aspects of both the decision's substance and its minimalist style.


Elections

In a Brief, Unsigned New Opinion, The Supreme Court Sends the Wrong Signal on Voter ID and Voter Fraud by Michael Dorf (Nov. 6, 2006)
FindLaw columnist and Columbia law professor Michael Dorf analyzes a brief, unsigned new Supreme Court opinion regarding voting rights that he argues may indicate the Court is taking the wrong road on this important issue. Dorf is concerned, in particular, that the opinion suggests the Court may be taking feelings of disenfranchisement -- spurred by near-baseless fears of non-citizens voting -- as seriously as it does actual disenfranchisement. The result, he notes, could be that voter ID requirements are upheld despite little evidence of voting fraud, and much evidence that many (especially the poor and minorities) will not be able to cast a vote even though they have a right to do so.


Federal Agencies

The Supreme Court Oral Argument in the Global Warming Case Reveals What's Wrong with the Standing Doctrine by Michael Dorf (Dec. 4, 2006)
FindLaw columnist and Columbia law professor Michael Dorf explains both the issues of substance, and of jurisdiction, posed by the "global warming" case now before the Supreme Court. Dorf notes, in particular, why application of the "standing" doctrine may mean the Court dismisses the case without even reaching the merits of the issues it presents. Dorf notes that this isn't the only case in which the standing doctrine has perverse results: He argues that, as a result of conservative interpretations of the doctrine, it leads to the wrongful dismissal of other environmental cases, and of civil rights cases as well.


Federalism

Chief Justice Roberts Advocates the Passive Virtues, Even as the Supreme Court's Docket Reveals their Subtle Vices by Michael Dorf (Nov. 20, 2006)
FindLaw columnist and Columbia law professor Michael Dorf cautions that what scholar Alexander Bickel called "the passive virtues" may not, in practice, be virtues at all. Bickel -- and now, Chief Justice Roberts -- favored federal courts' decisions to limit their own power and jurisdiction by, for example, issuing narrow rulings confined to the facts and arguments directly before the court. But Dorf points out -- citing a number of past and pending Supreme Court cases in which this kind of methodological conservatism, he argues, has only backfired, to the detriment of the Court and the nation.

Why the "Political Question Doctrine" Shouldn't Necessarily Prevent Courts From Asking Whether a Spending Bill Actually Passed Congress by Vikram Amar (Apr. 13, 2006)
FindLaw columnist and U.C. Hastings law professor Vikram Amar continues his series on the legal challenge to the Deficit Reduction Act of 2005 -- which reportedly failed to pass both houses of Congress, yet was signed by the President and is being treated as law nonetheless. Given what is apparently a blatant violation of the Constitution's bicameralism requirement, can a federal court direct a remedy? As Amar explains, that depends on whether the case raises a nonjusticiable "political question" -- and that, in turn, depends on two Supreme Court precedents that are in sharp tension with each other.

The Threshold Hurdles in the Lawsuit Alleging that the President Signed a Budget Bill the House Never Passed: Part One in a Series by Vikram Amar (Mar. 31, 2006)
In Part One of a two-part series of columns, FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses a recent federal lawsuit brought by Jim Zeigler, a lawyer claiming that the so-called "Deficit Reduction Act of 2005" is not a valid law because the House and Senate passed different versions of the measure. Zeigler, who practices elder law, claims it interferes with his ability to advise his clients. Amar examines the obstacles confronting Zeigler's claims, focusing first on whether Zeigler has constitutional standing to bring this lawsuit in federal court.


Immigration


[Coming Soon]


Supremacy Clause


[Coming Soon]


Supreme Court

Chief Justice Roberts Advocates the Passive Virtues, Even as the Supreme Court's Docket Reveals their Subtle Vices by Michael Dorf (Nov. 20, 2006)
FindLaw columnist and Columbia law professor Michael Dorf cautions that what scholar Alexander Bickel called "the passive virtues" may not, in practice, be virtues at all. Bickel -- and now, Chief Justice Roberts -- favored federal courts' decisions to limit their own power and jurisdiction by, for example, issuing narrow rulings confined to the facts and arguments directly before the court. But Dorf points out -- citing a number of past and pending Supreme Court cases in which this kind of methodological conservatism, he argues, has only backfired, to the detriment of the Court and the nation.

The New Supreme Court Term: Justice Kennedy's Pivotal Role in Abortion and Race Cases by Edward Lazarus (Sep. 28, 2006)
FindLaw columnist, attorney, and author Edward Lazarus discusses the important role "swing" Justice Anthony Kennedy is expected to play over the Supreme Court term beginning this October. In two key hot-button areas of race and abortion, Lazarus explains, Kennedy's vote may be controlling -- yet observers are uncertain as to which side of cases he will favor. As Lazarus explains, the cases where Kennedy may play the greatest role concern "partial birth" abortion and race-based assignment of public school pupils.

This Year's New Supreme Court Clerks: Why Are Only Twenty Percent Women? by Edward Lazarus (Aug. 31, 2006)
FindLaw columnist, attorney and author Edward Lazarus discusses a controversy recently noted in the New York Times and the popular Volokh Conspiracy legal blog, regarding the scarcity of women among the Supreme Court law clerks to serve for the coming Term. Lazarus notes and criticizes the Larry-Summers-like suggestion that there may just not be enough female "geniuses" to fill the clerking ranks, and explains why, in any case, intelligence is only one of many factors that leads to a particular candidate's getting a clerkship.

Assessing the Supreme Court at the Close of Its Current Term: New Justices, Public Critiques, and the Law Clerk Issue by Edward Lazarus (Jul. 06, 2006)
FindLaw columnist, attorney, and author Edward Lazarus discusses a number of developments relating to the Supreme Court's most recent Term. Lazarus evaluates the influence of Justices Alito and Roberts; considers the grounds for various critiques of the Court by politicians, academics, and others; and focuses in particular on the issue of law clerks' role on the Court, and whether it is too extensive, and too substantive.

Is Chief Justice Roberts Correct that Unanimous Supreme Court Opinions Are Inherently Desirable? by Edward Lazarus (May 25, 2006)
FindLaw columnist, attorney, and author Edward Lazarus discusses a number of developments relating to the Supreme Court's most recent Term. Lazarus evaluates the influence of Justices Alito and Roberts; considers the grounds for various critiques of the Court by politicians, academics, and others; and focuses in particular on the issue of law clerks' role on the Court, and whether it is too extensive, and too substantive.


What Kind of Justice Will Samuel Alito Be? A Recent Death Penalty Decision Provides Some Insights by Edward Lazarus (May 11, 2006)
FindLaw columnist, attorney and author Edward Lazarus discusses the way that both Chief Justice Roberts and Justice Alito have defied the expectations created by their records, and in their confirmation hearings. Lazarus focuses in particular on the first decision authored by Alito, for a unanimous Court, in a death penalty case (one in which Lazarus was among the attorneys representing the petitioner). He notes interesting aspects of both the decision's substance and its minimalist style.

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