• May 22, 2014

    by Nicholas Alexiou

    Secretary of Defense Chuck Hagel last fall ordered a comprehensive review of the Uniform Code of Military Justice (UCMJ), citing numerous amendments to the UCMJ, which have created a lack of uniformity in the code. Secretary Hagel’s order was not limited to the UCMJ, but extended to how it is implemented by the Manual for Courts-Martial (MCM) and the numerous regulations that govern the various branches of the armed forces.

    This comprehensive review is being undertaken by the Military Justice Review Group (MJRG), headed by Senior Judge, and former Chief Judge, Andrew S. Effron of the U.S. Court of Appeals for the Armed Forces. Earlier this month, the MJRG unveiled a website where those who are interested can submit suggestions for amending the UCMJ and/or the MCM via either email or U.S. mail.

    Eugene R. Fidell, the Florence Rogatz Visiting Lecturer in Law and Senior Research Scholar in Law at Yale Law School, has sketched out a number of possible reforms for the MJRG to consider. At the Global Military Justice Reform blog, Fidell notes that areas such as jurisdiction and transparency are a few of the many areas where the MJRG should focus its efforts. Making trial and appellate documents available to the press and the public via the Public Access to Court Electronic Records (PACER) service would make the military justice system more transparent.

  • May 21, 2014

    by Jeremy Leaming

    For more than a decade, General Motors kept secret an ignition switch defect in its cars that reports have linked to numerous fatalities. GM has now recalled 13.5 million cars this year. A bipartisan bill has been recently introduced in Congress aimed at making it more difficult for corporations to keep court documents secret in product-liability litigation.  

    The Sunshine Litigation Act of 2014, introduced by Sens. Richard Blumenthal (D-Conn.) and Lindsey Graham (R-S.C.), would, for example, bar a court from enforcing any settlement provision that restricts parties from disclosing public health or safety information to a government agency, state or federal, that has authority to enforce consumer regulations.

    In a press statement about the bill, Sen. Blumenthal said, “Too often in product liability cases, victims are pressured to pay for a settlement with their silence, even when public interest outweighs corporate confidentiality. The Sunshine in Litigation Act will ensure that courts permit sunshine when product liability cases involve information vital to public health and safety. Concealment can kill, and so can secret settlements.”

  • May 21, 2014

    The legacy of the Supreme Court’s landmark decision in Brown v. Board of Education remains mixed. While the Court’s 1954 ruling set a necessary precedent for education equality, many argue that it has been a “repository of unmet expectation.” Writing for ISCOTUSnow, Christopher Schmidt explains why “that’s not all bad.” 
    The Supreme Court has stayed the scheduled execution of Russell Bucklew. His lawyers contend that Bucklew’s  rare health condition would cause excruciating pain if the lethal injection was administered. Andrew Cohen at The Atlantic reports on the constitutional issues at play. 
    Writing for OnLabor, Benjamin Sachs discusses the union issues facing workers at a Volkswagen plant in Tennessee and whether the automobile company can implement a works council without violating labor law.
    At Womenstake, Gail Zuagar explains why we must support the The Strong Start for America’s Children Act in order to “make high-quality preschool available to children from low- and moderate-income families.” 


  • May 20, 2014
    Amid some calls to step down from the bench, Justices Ruth Bader Ginsburg and Stephen Breyer have remained adamant that retirement is not in their near future. L.J. Zigerell at The Monkey Cage explains why Court watchers should not hold their breath.
    Yesterday, the Supreme Court agreed to hear a case involving the unfair firing of Robert J. MacLean, an air marshal for the Transportation Security Administration who was dismissed after releasing sensitive information to the media. Robert Barnes at The Washington Post  discusses the possible implications of the case.
    At the Brennan Center for Justice, Ciara Torres-Spelliscy follows the recent history of money and politics in New York as the state gets closer to meaningful campaign finance reform.
    Jason Mazzone at Balkinization notes his visit to the UK Supreme Court and describes the casually civilized courtroom environment.
    Writing for Demos, Devin Fergus examines racial inequality 60 years after the Supreme Court’s landmark decision Brown v. Board of Education.
  • May 19, 2014
    Guest Post

    by Frederick Gedicks, Guy Anderson Chair and Professor in Law, Brigham Young University Law School

    The recent case of Town of Greece v. Galloway saw Justice Clarence Thomas once again astride a favorite hobby horse, the benighted notion that both logic and text should have precluded the application of the Establishment Clause against the states. As in his many other forays into this field, Thomas concedes that the Clause (“probably”) prohibits a federally established church, but he otherwise reads the Clause as entirely devoted to the protection of state sovereignty—specifically, state power to establish or disestablish religion. Like the 10th Amendment, Thomas maintains, the Establishment Clause was meant to protect the states and thus is rendered absurd when applied to limit state power. Thomas relies on this purported absurdity to excuse himself from any serious engagement of the historical record, unilaterally shifting the burden of historical proof to incorporationists. As I have shown elsewhere in detail, all of this is demonstrably wrong.

    It is puzzling that such an ardent champion of federalism as Justice Thomas should fail to grasp that the Establishment Clause, like the Constitution’s other structural limitations on the federal government, was originally understood to protect individual liberty as well as state sovereign power. The Federalist Papers repeatedly emphasize that the division of sovereignty between the federal government and the states protects both state power and personal liberty from federal power. The Court’s own precedents emphasize this as well, most recently in Bond v. United States (2011), a unanimous opinion which unambiguously declared, “Federalism... protects the liberty of all persons within a State by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions.”