Digital Commons Network^™

Three Observations About Justice Alito's Draft Opinion In Dobbs - Commentary, John M. Greabe

Law Faculty Scholarship

[Excerpt] "There is much to say about Justice Samuel Alito's draft opinion in Dobbs v. Jackson Women's Health Organization, which was leaked from the United States Supreme Court on May 2 [2022].

Obviously, the most significant direct consequence of the proposed decision, which overrules Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) while upholding the constitutionality of a Mississippi law that outlaws most abortions after 15 weeks of pregnancy, would be the restriction or elimination of abortion services throughout much of the nation. This will have all sorts of attendant consequences, large and smaller, many of which …

Commentary: The Workplace Vaccine Decision And Its Implications For Federal Regulatory Power, John M. Greabe

Law Faculty Scholarship

[Excerpt] "In a recent commentary, I contrasted the pragmatic consequentialism of retiring Supreme Court Justice Stephen Breyer – and, more generally, the other two members of the court’s liberal bloc (Justices Sonia Sotomayor and Elena Kagan) – with the structural formalism of the court’s six-justice conservative supermajority. I also suggested that this framework may provide a more useful way to understand many of the court’s recent and upcoming blockbuster decisions than the partisan angle that court watchers so frequently use."

Commentary: The Pragmatic Consequentialism Of Justice Breyer, John M. Greabe

Law Faculty Scholarship

[Excerpt] "Justice Stephen Breyer’s announcement of his intention to retire at the end of the Supreme Court’s current term provides occasion to contrast his approach to judging with the very different approach of the court majority he leaves behind. The contrast is frequently explained in partisan terms: Justice Breyer is a “liberal” who was appointed by a Democratic president (Bill Clinton), whereas the majority is “conservative,” having been appointed by three different Republican presidents (George H.W. Bush, George W. Bush, and Donald Trump).

The use of partisan labels to describe the different approaches to judging employed by the court’s two …

Commentary: Divisive Concepts And Regulation By Threat Of Baseless Lawsuit, John M. Greabe

Law Faculty Scholarship

[Excerpt] "At the State House, attention has returned to New Hampshire's so-called 'divisive concepts' law. The law, enacted in 2021, bars public K-12 teachers from engaging in certain forms of instruction on issues of race, gender, and other forms of discrimination. The Legislature is presently considering bills both to repeal the law and to extend it to the higher education context.

Those who support repeal tend to emphasize the vital need for classroom conversations on topics near the periphery of the restraints on speech imposed by law. And rightly so. The law's purpose and effect are to deter teachers and …

'Divisive Concepts' Law And The Big Chill, John M. Greabe

Law Faculty Scholarship

[Excerpt] "Much Critical commentary concerning the so-called "divisive concepts" provisions in this year's budget legislation has focused on their restrictions on speech. These restrictions, among other things, forbid public K-12 teachers from instructing that some persons are "inherently superior or inferior to [others]", "inherently racist or sexist," "should be discriminated against," or "should not attempt to treat others equally" because of their "age, sex gender identity, sexual orientation, race, creed, color, marital status, mental or physical disability, religion, or national origin."

New Hampshire's 'Divisive Concepts' Law And The Big Chill, John M. Greabe

Law Faculty Scholarship

[Excerpt] "

Much critical commentary on the so-called “divisive concepts” provisions in this year’s budget legislation – the label comes from language in an earlier version of the bill – has focused on their content- and viewpoint-based restraints on speech. These speech restrictions prohibit state public employers, including public K-12 school teachers, from (among other things) instructing that persons are “inherently superior or inferior to [others]” “inherently racist or sexist,” “should be discriminated against,” or “should not attempt to treat others equally” because of their “age, sex, gender identity, sexual orientation, race, creed, color, marital status, familial status, mental or …

The Constitution And Democracy In Troubled Times, John M. Greabe

Law Faculty Scholarship

Does textualism and originalism approach positively impact democracy?

What Constitution Says About Peaceful Transfer Of Power, John M. Greabe

Law Faculty Scholarship

[excerpt] I recently was asked whether the Constitution requires a peaceful transfer of power following an election. Sadly, the questions is not merely theoretical. President Trump has stated that, if he loses the upcoming election, it will be through fraud. And he has made it clear that he will be unrestrained in his response to any efforts to oust him from office through an election he pronounces fraudulent.

The question of whether the Constitution requires a peaceful transfer of power prompts consideration of how we should conceptualize our Constitution. Is the Constitution merely the document that was written in 1787, …

Five Takeaways From High Court's Term, John M. Greabe

Law Faculty Scholarship

[Excerpt] Last month, the Supreme Court wrapped up it 2019-2020 term with a flurry of significant rulings.

The court confirmed that Congress and state attorneys general may subpoena third parties for evidence when legitimately investigating a sitting president; held that the executive branch must engage in reasoned decision-making when rescinding administrative protections for a vulnerable population (i.e., beneficiaries of the Deferred Action for Childhood Arrivals (DACA) program); and defined the scope of the president's power to remove officials from high office.

The court also clarified that federal anti-discrimination employment protections extend to LGBTQ workers; held that states may punish members …

Judicial Review And Governmental Bad Faith, John M. Greabe

Law Faculty Scholarship

[Excerpt] This column is the third and final installment of a series considering some potential implications of June Medical Services v. Russo, a case involving a constitutional challenge to a Louisiana law regulating access to abortion services. The United States Supreme Court heard arguments in the case on March 4. A decision is expected shortly.

The first column sought to place June Medical Services in context by describing the history of constitutional abortion-rights litigation at the Supreme Court. The second explained what the case is likely to tell us about the respect the court will show to prior constitutional …

The Supreme Court And Constitutional Stare Decisis, John M. Greabe

Law Faculty Scholarship

[Excerpt] This column is the second in a series of three considering some potential implications of June Medical Services v. Russo, a case involving a constitutional challenge to a Louisiana law regulating access to abortion services. The United States Supreme Court heard arguments in the case on March 4, 2020. A decision is expected by the end of June. More on the case below.

Is The Right To Abortion Still Specially Protected?, John M. Greabe

Law Faculty Scholarship

[excerpt] Last week, in June Medical Services v. Russo, the Supreme Court heard arguments in a case that once again raises questions about the extent to which the Constitution protects a woman's right to end a pregnancy. But the way in which the court resolves the case is likely to reveal more than just its views on abortion rights.

This column, the first in a series of three, describes the legal and historical path that led to June Medical Services. The next two will explore what the case suggests about, respectively, how the current court will treat constitutional …

Do We Intend To Keep Our Republic?, John M. Greabe

Law Faculty Scholarship

[Excerpt] Commentators recently have reminded us of a famous statement Benjamin Franklin allegedly made upon exiting Independence Hall on the final day of the 1787 Constitutional Convention. When asked whether the proposed Constitution would establish a monarchy or a republic, Franklin supposedly answered: "A republic, if you can keep it."

The anecdote, which both inspired the title of Supreme Court Justice Neil Gorsuch's recent book and was recounted by Speaker of the House Nancy Pelosi when she announced the impeachment inquiry into the conduct of the president, reminds us that our republican form of government is not to be taken …

Separation Of Powers, Partisanship And Impeachment: How Can We Overcome The Partisan Propaganda?, John M. Greabe

Law Faculty Scholarship

[excerpt] "Our Constitutional system divides power horizontally, among the three branches of the federal government, and vertically, between the federal government and the states. We refer to the former division as our "separation of powers" and the latter as our "federalism."

Review Of Ian Kerr And Jane Bailey, The Implications Of Digital Rights Management For Privacy And Freedom Of Expression, 2 Journal Of Information, Communication & Ethics In Society 87 (2004), Ann Bartow

Law Faculty Scholarship

Ian Kerr, who passed away far too young in 2019, was an incisive scholar and a much treasured colleague. The wit that sparkled in his papers was matched only by his warmth toward his friends, of whom there were many. He and his many co-authors wrote with deep insight and an equally deep humanity about copyright, artificial intelligence, privacy, torts, and much much more.

Ian was also a valued contributor to the Jotwell Technology Law section. His reviews here display the same playful generosity that characterized everything else he did. In tribute to his memory, we are publishing a memorial …

Abortion Rights And The Kavanaugh Nomination, John M. Greabe

Law Faculty Scholarship

[Excerpt] "Last week, President Trump nominated federal appeals court judge Brett Kavanaugh to fill the Supreme Court seat opened by the retirement of Justice Anthony Kennedy. Immediately, coverage of the nomination focused on abortion and whether Judge Kavanaugh's confirmation would spell the end of the constitutional right recognized in Roe v. Wade. Let's explore why."

Sports Betting, Federalism And The Constitution, John M. Greabe

Law Faculty Scholarship

[Excerpt] Justice Sandra Day O'Connor has described federalism - how the Constitution divides powers between the federal government and the states - as "perhaps our oldest question of constitutional law."

This past week, the United States Supreme Court returned to this oldest of constitutional questions to strike down a federal law that had prohibited stats from authorizing betting on competitive sporting events.

The Use Of Military Force And The Constitution, John M. Greabe

Law Faculty Scholarship

[Excerpt] Last week, for the second time since becoming president, President Donald Trump ordered a military strike on Syria without seeking or obtaining authorization from Congress. Both strikes were responsive to chemical-weapons attacks that, American intelligence analysts say, the Syrian government launched against its own people.

Many believe that these forceful responses to horrific war crimes involving banned weapons were morally justified. But were they constitutional?

The Death Penalty And The Constitution, John M. Greabe

Law Faculty Scholarship

[excerpt] The death penalty is back in the news. Last week, President Donald Trump argued that capital punishment should be available to punish drug dealers who have contributed to the opioid crisis. Earlier this month, the New Hampshire Senate voted to prospectively repeal the state's death penalty. These developments provide occasion to review the constitutional issues raised when the federal government or a state seeks to put a convict to death.

State Constitutions And The Protection Of Rights, John M. Greabe

Law Faculty Scholarship

This article, using a recent Pennsylvania Supreme Court ruling on partisan gerrymandering, explores how state constitutions can be significantly more protective of rights than the federal constitution.

Racism And Impeachment Power, John M. Greabe

Law Faculty Scholarship

[Excerpt] “Does racism constitute a legitimate basis for removing a president? More generally, what is the scope of Congress's removal power?

”In all but the most extraordinary circumstances, the remedy for incompetent political leadership -indeed, even abhorrent political leadership lies in the next election. But the Constitution does provide Congress with tools to remove certain federal officeholders between elections.”

Constitutional Barriers To Congressional Reform, John M. Greabe

Law Faculty Scholarship

Americans celebrate our Constitution as a beacon that can guide us through difficult situations. And justly so. But at times, the Constitution also has stood as a barrier to necessary reform.

Sexual Misconduct And Congressional Self-Governance, John M. Greabe

Law Faculty Scholarship

[Excerpt] "Over the past year, a number of prominent politicians (including President Donald Trump) have been publicly accused of serious sexual misconduct and abuse of power. The question therefore has arisen: Can these politicians either be barred from taking office or removed from office on the basis of these accusations?

There is only way to remove a sitting president: impeachment by the House of Representatives and conviction by the Senate. But the topic of impeaching and removing a president warrants its own column. This column will instead focus on what Congress may do when its members and members-elect face charges …

Finding Freedom For The Thoughts We Hate, John M. Greabe

Law Faculty Scholarship

In his dissenting opinion in United States v. Schwimmer (1929), Supreme Court Justice Oliver Wendell Holmes, Jr., famously defended tolerance as an indispensable constitutional value. He wrote: “[I]f there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought – not free thought for those who agree with us but freedom for the thought that we hate.”

Yet accepting that the Constitution protects the thought that we hate can be difficult, even during the best of times. And these are far from the best of times. Nuclear brinksmanship …

Norms, Law And The Impeachment Power, John M. Greabe

Law Faculty Scholarship

[Excerpt]

"Most experts believe that, while a president can be criminally prosecuted after leaving office, he cannot be prosecuted while he is president. And while the president may be sued civilly while holding office, the office confers powerful immunities and other constitutional defenses that are unavailable to ordinary civilian defendants."

Can Courts Save Us From Unconstitutional Government Conduct?, John M. Greabe

Law Faculty Scholarship

[Excerpt] "We are living in a troubled time. Across the political spectrum, there is a great deal of concern that government officials have been derelict in honoring their oaths to support and defend the Constitution."

The Origins And Boundaries Of Executive Privilege, John M. Greabe

Law Faculty Scholarship

[Excerpt] "When the president or persons working with the president are under investigation . . . the doctrine of executive privilege -which entitles the president to keep confidential certain communications to and from his advisers -inevitably becomes relevant."

Scotus's 2016-17 Term: The Calm Before The Storm?, John M. Greabe

Law Faculty Scholarship

[Excerpt] “The court's just-completed 2016-17 term contained no . . . blockbusters. Its highest profile ruling was an unsigned opinion that modified preliminary injunctions issued by lower courts to prevent President Donald Trump's "travel ban" orders from going into immediate effect.

But that ruling did not decide whether the president's orders are in fact unconstitutional. Instead, the court put that important question off until the fall, by which time further factual developments -for example, the executive branch completing its review and deciding to lift or modify the bans -may well render the issue moot.”

The Boundaries Of Partisan Gerrymandering, John M. Greabe

Law Faculty Scholarship

[Excerpt] “In my most recent column, I expressed concern about the effectiveness of the constitutional decision rules that currently govern gerrymandering – the redrawing of electoral districts in a manner that favors the incumbent majority at the expense of those out of power.

Briefly, the Constitution has not been interpreted to prohibit redistricting with an eye toward advancing the interests of the political party in power. But it has been interpreted to bar legislators from redistricting on racial grounds – at least in most circumstances.

The problem is that voters from certain racial groups tend to vote overwhelmingly for …

Race, Partisan Gerrymandering And The Constitution, John M. Greabe

Law Faculty Scholarship

[Excerpt] “For the most part, the Constitution speaks in generalities. The 14th Amendment, for example, instructs the states to provide all persons the "equal protection of the laws." But obviously, this cannot mean that states are always forbidden from treating a person differently than any other person. Children can, of course, be constitutionally barred from driving, notwithstanding the Equal Protection Clause. Thus, there is a need within our constitutional system to refine the Constitution's abstract provisions.”