November 21, 2016
The Eighth Amendment prohibits “cruel and unusual punishment.” In 1972, the U.S. Supreme Court put a moratorium on executions because legal inadequacies permitted arbitrary and capricious imposition of death sentences. States that wanted to reinstitute executions rewrote their laws, and in 1976 the court upheld capital punishment when rendered with enhanced procedural safeguards. Since then, however, the court has considered many death penalty laws and ruled on their constitutionality in the...
October 31, 2016
Corporate greed, evidenced by the Wells Fargo scandals, and government wrongdoing, like that disclosed by Chelsea Manning (formerly known as Bradley Manning) and Edward Snowden, illustrate the need for increased understanding and improvement of our nation’s whistleblower and false claims laws.
Whistleblower laws. The first federal whistleblower law was passed in 1778 to protect sailors who were arrested after reporting incidents of torture committed by their superior officer....
September 26, 2016
The right to vote is the foundation of democracy, but determining who is entitled to vote and in which district is complicated. The states are empowered to determine election districts and voter eligibility, but Congress also may “make and alter” election laws. Legislatures and election officials have numerous tools to either promote or deter citizens’ participation in the democratic process. The 2016 presidential election is the first since the Supreme Court invalidated part of the Voting...
August 15-22, 2016
Violence incited by terrorist websites and unceasing online vitriol have led many nations to enact laws repressing hate speech. The European Union, for example, requires member nations to impose criminal penalties for “public incitement to violence or hatred.” The criminalization of hate speech differs from U.S. hate crime laws that enhance penalties for underlying crimes when the victim is selected based on a protected characteristic, such as race or status...
June 20-27, 2016
Advocates for religious rights hoped the Supreme Court’s decision in Zubik v. Burwell, the Affordable Care Act’s contraceptive mandate case, would determine the scope of protection afforded by the Religious Freedom Restoration Act. Instead, the court remanded Zubik and its companion cases to allow the litigants to resolve their disputes in a manner that provides contraceptive coverage without invoking religious objection. The court’s promotion of self-help...
May 9, 2016
Legislation and litigation regarding L.G.B.T.I. discrimination and the use of gender-specific public toilets reveals a deep societal divide and illustrates the need for reasoned use of political power. The most recent controversy arose after some localities passed antidiscrimination ordinances that allow people to use facilities based on gender self-identification. In response, states passed laws prohibiting L.G.B.T.I. discrimination claims and limiting the...
April 4-11, 2016
As the fight over Judge Merrick B. Garland’s nomination demonstrates, the Supreme Court is not free from politics. Nevertheless, since Marbury v. Madison (1803), the court has asserted itself and been accepted as the nation’s impartial referee. Chief Justice John Marshall, who penned the decision, was himself a lame duck appointee nominated after the presidential election and sworn in just a month before Thomas Jefferson’s inauguration. The shrewd decision,...
March 7, 2016
Dissatisfaction with public school education has led many states to pass laws that facilitate school choice. Options include charter schools, scholarship and tuition tax benefits, and publicly funded education savings accounts. Each of these programs must comply with applicable federal and state constitutional provisions.
The First Amendment to the U.S. Constitution prohibits government establishment of religion and protects...
January 18-25, 2016
As the U.S. Supreme Court reaffirmed in its 2012 decision, Arizona v. United States, the federal government’s power to regulate immigration is pre-eminent and may not be disrupted by state laws. Federal authority is grounded in Congress’s power to establish a “uniform Rule of Naturalization” and the inherent sovereign powers of the executive branch. As Justice Kennedy wrote, “Immigration policy can affect trade, investment, tourism, and diplomatic relations...