Faculty Blog, Friedman

Iran, Al Qaeda and the Legacy of September 11

The Trump administration may well be contemplating military action against Iran. Not only has it named Iran’s Islamic Revolutionary Guard a foreign terrorist group – the first such designation under the aegis of a nation-state – but Secretary of State Mike Pompeo suggested in recent Senate testimony that he has “no doubt there is a… Continue reading Iran, Al Qaeda and the Legacy of September 11

Faculty Blog, Friedman, Hansen

Keeping the President in Check, One Congressional Hearing at a Time

The State of the Union address is not just an annual ritual—it is a requirement. Article II, Section 3 of the Constitution provides that the President “shall from time to time give to the Congress Information of the State of the Union.” That the speech is, today, more rhetorical than informative does not mean it… Continue reading Keeping the President in Check, One Congressional Hearing at a Time

Faculty Blog, Friedman, Hansen

Checking Trump, One Foreign Policy at a Time

We wrote recently, in Just Security, about December’s bipartisan Senate vote and resolution to withdraw U.S. military assistance from Yemen and to assign responsibility for the death of journalist Jamal Khashoggi to Saudi Crown Prince Mohammed bin Salman—legislative moves contrary to the policy wishes of the Trump administration. The Senate’s actions suggested three developments in… Continue reading Checking Trump, One Foreign Policy at a Time

Faculty Blog, Friedman, Privacy

On the Moral Duty to Leave Facebook

In an essay published last November, the philosopher S. Matthew Liao asks: do we have a moral duty to leave Facebook? His answer: not yet. In light of Facebook’s destructive effect on information privacy, I’m not sure the answer to his question shouldn’t be an unequivocal “yes.” Considering the duties one owes to others, Liao… Continue reading On the Moral Duty to Leave Facebook

Faculty Blog, Friedman

The Supreme Court Declines to Resolve Yet Another Lower Court Conflict  

Supreme Court Justice Clarence Thomas is unhappy again – not with a substantive ruling by the court, but with a decision by the majority to decline to hear a particular case. Last year, Thomas, joined by Justice Samuel Alito, dissented from a decision by the majority – one in a long line – not to… Continue reading The Supreme Court Declines to Resolve Yet Another Lower Court Conflict  

Faculty Blog, Friedman

Moving Forward: Supreme Court Appointments After Kavanaugh

In the wake of Justice Antonin Scalia’s passing in early 2016, the Republican-controlled U.S. Senate declined to give its advice on President Barack Obama’s nomination of Judge Merrick Garland to the high court, much less its consent. That move, along with the Republican-led elimination of the filibuster for Supreme Court nominations, has led to a… Continue reading Moving Forward: Supreme Court Appointments After Kavanaugh

4th Amendment, Constitution, criminal law, Due Process, Faculty Blog, Fourth Amendment, Friedman, Hansen, New England Law Review, Trump, U.S. Supreme Court

Faculty Blog: The Post-9/11 Weight of Korematsu

Associates of President-elect Donald J. Trump have suggested that the infamous Supreme Court decision upholding the internment of Japanese-Americans during World War II, Korematsu v. United States, could be used to justify measures aimed at tracking and potentially detaining Muslim-Americans and Muslim immigrants. As Professor Noah Feldman has recently noted, the Korematsu decision is widely regarded today as having been wrongly decided and it has been, as Justice Stephen G. Breyer has put it, “discredited.” But there is another reason why the precedential value of Korematsu has been diminished: its basic premise has been undermined by the Supreme Court’s more recent decisions in Hamdi v. Rumsfeld and Boumediene v. Bush.

Faculty Blog, Fourteenth Amendment, Friedman, New England Law Review, U.S. Supreme Court

Faculty Blog: Analyzing Race-Based Classifications After Fisher

By: Lawrence M. Friedman  In his dissenting opinion in Fisher v. University of Texas, Justice Alito argues that the Court indulged the university’s “plea for deference” in the application of strict scrutiny to its race-based affirmative action program. And he’s probably right, too: the scrutiny the majority applied in Fisher seems less strict than the scrutiny the Court historically has given race-based classifications. But this isn’t to say that the result Alito would have reached—striking down the university’s plan—is also right. For he fails to appreciate that, just as equal protection doctrine protects only individuals who are similarly situated, strict scrutiny applies in the same way only in similarly situated cases. In other words, context matters—and context explains why higher education affirmative action programs may survive judicial review where the governmental use of race in other contexts would not.

4th Amendment, 5th Amendment, 6th Amendment, Constitution, criminal law, Criminal Procedure, Exclusionary Rule, Faculty Blog, Fifth Amendment, First Amendment, Fourteenth Amendment, Fourth Amendment, Friedman, New England Law Review, Privacy, U.S. Supreme Court

Faculty Blog: Utah v. Strieff: The Court Reminds Us That Constitutional Privacy is Essentially Meaningless

By: Lawrence M. Friedman  The U.S. Constitution prohibits the government from pursuing its policy goals in ways that conflict with individual rights protections—except, as the Supreme Court reminds us in its decision in Utah v. Strieff, where the protection of privacy under the Fourth Amendment is concerned. The remedy for a Fourth Amendment violation is exclusion of the evidence obtained as a result of an illegal search or seizure. Deterrence of governmental misconduct has been the animating principle of the exclusionary rule for decades (though it was originally just one of several rationales), and the nature of the Court’s cost-benefit deterrence analysis has led it, time and again, to conclude that the costs of suppression outweigh any potentially beneficial deterrent effect. As Justice Clarence Thomas explains in the opening paragraph of his opinion for the majority in Strieff, “even when there is a Fourth Amendment violation, [the] exclusionary rule does not apply when the costs of exclusion outweigh its deterrent benefits.”

Article II, Competency, Congress, Constitution, Executive Power, Faculty Blog, Federal Courts, Friedman, Judges, Judicial Elections, Judicial Performance Evaluation, Judicial Review, New England Law Review, Nominations, Policy, President Obama, U.S. Supreme Court

Faculty Blog: The Ninth Justice

At this writing, Senate Republicans continue to refuse even to hold a hearing on President Obama's nominee to succeed the late Associate Justice, Antonin Scalia, on the U.S. Supreme Court. The fullest explanation of their collective decision to ignore the Senate's constitutional role in the judicial appointment process has come from Utah Senator Orrin Hatch who, in a recent New York Times op-ed, spelled out their arguments. In that piece, Senator Hatch attacked President Obama’s judicial appointments for embracing “the sort of judicial activism Justice Scalia spent his career seeking to curtail.” Worse, in Senator Hatch’s view, when Democrats controlled the Senate they were complicit in this effort. Thus, he concludes, voters should decide what kind of Supreme Court they want through the 2016 Presidential election—which can happen only if the Senate delays confirmation proceedings on the President’s nominee, Judge Merrick Garland. He argues that considering a nominee today would be “irresponsible” and, he concludes, not “in the best interests of the Senate, the judiciary and the country.”