FindLaw columnist and Cornell law professor Michael Dorf discusses the complex, interesting law and precedent surrounding the issue of how, and to what extent, the rights enumerated in the Constitution's Bill of Rights apply -- or, in technical terms, are "incorporated" -- not just against the federal government, but also against the states. In particular, Dorf focuses on an upcoming Supreme Court case that raises the question whether the Second Amendment's right to bear arms applies against the states and their subdivisions. Since the Court recently struck down the District of Columbia's handgun ban on Second Amendment grounds, the Court's answer to the incorporation question in the Second Amendment context may affect the fate of state and local gun laws.
FindLaw columnist and U.C., Davis, law professor Vikram Amar considers both the criteria that should be used in the search for a replacement for Supreme Court Justice David Souter, and the questions President Obama should ask of that person before nominating -- and the Senate, before confirming -- him or her.
FindLaw columnist and Cornell law professor Michael Dorf comments on a recent, high-profile decision by the Supreme Court to direct that a hearing be held in the case of death row inmate Troy Davis, who has put forward strong evidence that he is innocent of the crime for which he was convicted and sentenced to death. Dorf clarifies the ins and outs of the Court's habeas corpus jurisdiction, which it exercised in this case; and details the split among the Justices regarding whether it is unconstitutional to execute someone for a crime he did not, in fact, commit but for which he was properly convicted and sentenced.
FindLaw columnist and Cornell law professor Sherry Colb details and assesses the precedents and arguments that may inform the Supreme Court's deliberation as it considers, during its coming term, two important companion cases. The cases raise the question whether imposing sentences of life imprisonment without parole upon juvenile offenders violates the Eighth Amendment's prohibition on cruel and unusual punishment. Colb argues that, as a matter of policy, the case against sentencing juvenile offenders to life without parole is strong. However, after analyzing relevant Court precedents, she finds that they offer little support for an Eighth Amendment argument against sentencing juveniles to life without parole. Nevertheless, Colb expresses the hope that the Court will modify its doctrine in this case, and remove this harsh punishment as an option.
FindLaw columnist and Cornell law professor Michael Dorf analyzes the legal doctrines in play in Citizens United v. Federal Election Comm'n, a case in which the Supreme Court will hold a special oral argument on September 9. As Dorf explains, while the case directly concerns the question whether a feature-length film entitled "Hillary: The Movie" falls under campaign finance reform laws, it also is likely to raise key questions about First Amendment-based limitations upon campaign finance legislation. Indeed, as Dorf notes, the case may prove to be a forum for the Court to significantly change doctrine in this area -- but not necessarily in a way that would be optimal.
FindLaw columnist and Cornell law professor Sherry Colb discusses an important First Amendment and animal cruelty case that the Supreme Court recently decided to review. The case involves the constitutionality of a statute through which Congress responded to the phenomenon of "crush" videos, in which a woman tortures and slowly kills animals to appeal to those with a sexual fetish for watching such abuse. However, as Colb notes, in the case the Court will review, Robert J. Stevens was convicted not of any crush-video offense, but of filming and distributing violent videos of pit-bull fights and pit-bull attacks. After the U.S. Court of Appeals for the Third Circuit struck down Stevens's conviction on First Amendment grounds, the Supreme Court opted to take the case. Colb covers the key First Amendment precedents that may influence the Court's ruling, drawing on cases from the context of child pornography to argue that the state has a legitimate interest in destroying the market for certain materials. She also contends that those who are horrified by crush videos, but who are not vegans, should look within to consider whether their practices of eating meat or animal products do not create a valid analogy between themselves and the repellent crush video makers.
FindLaw guest columnist and Chairman of the Cato Institute, Robert Levy, explains why Judge Sotomayor's jurisprudence on the right to bear arms is no reason to oppose her confirmation. Levy, who was co-counsel to the plaintiff in the District of Columbia case which recently established Second Amendment rights as individual rights, argues that while other aspects of Sotomayor's jurisprudence may deserve questions, the much discussed recent Second Circuit panel decision regarding the Second Amendment, in which Sotomayor joined, was a correct following of Second Circuit and Supreme Court precedent.