Commentary

Spokeo website.

High Court Gets It Right With 'Spokeo' Decision

By William S. Consovoy and Ryan D. Andrews |

OPINION: The ruling, which clarifies the sufficiency of injuries a plaintiff alleges, reaffirms Congress' power.

State Supreme Court building in the French Quarter in New Orleans, Louisiana.

U.S. Supreme Court Should Undo Death-Row Injustice in Louisiana

By Pascal Calogero |

OPINION: The state needs high court's guidance on handling exculpatory evidence violations.

Former Attorney General John Ashcroft.

'Iqbal' Brings Seven Years of Bad Luck for Plaintiffs

By Arthur H. Bryant |

OPINION: The heightened pleading standard established in 2009 is based on faulty propositions.

Legal Services Corporation offices at 3333 K Street, N.W. in Washington, D.C. March 18, 2015. Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL.

A Key Element is Missing from Sotomayor's Pro Bono Vision

By Steven H. Schulman |

OPINION: A call for a donating time sidesteps the fact that legal aid desperately needs money.

<b>EN MASSE:</b> Occupy D.C. protestors were arrested after lying down across K Street N.W. in December 2011. Law enforcement has unlawfully shut down Occupy rallies and others, some lawyers assert.

Convenient Excuses Undo Right To Assemble

By Alan Levine |

OPINION: In a post-9/11 world, law enforcement relies on fear tactics to undermine collective voices.

Katherine Polk Failla.

Sexual-Orientation Harassment Suits Need Supreme Court's Review

By Vivian Berger |

OPINION: Congress has failed to make such conduct actionable. The justices should step in.

Robert McDonnell. July 9, 2013.

Bob McDonnell Ruling Will Not Legalize Corruption

By Richard L. Hasen |

OPINION: You don’t have to be a lover of the U.S. Supreme Court’s noxious Citizens United v. FEC case to be troubled by the corruption prosecution of Virginia governor Bob McDonnell.

With Ph.D. Hiring Trend, Who'll Help Law Students Find the Courthouse?

By Lynn M. LoPucki |

OPINION: ABA wants practical instruction, but more faculty lack "real-world" experience.

<b>MEETING MAN:</b> Nominated for the U.S. Supreme Court by President Obama, Chief Judge Merrick Garland of the U.S. Court of Appeals for the D.C. Circuit at the office of Sen. Mark Kirk, R-Illinois, on March 29.

What Would Nino Do With Garland's Nomination?

By Steven Lubet and Charles Gardner Geyh |

OPINION: As a recent immigration case before the justices shows, a divided court creates dysfunction.

Sri Srinivasan.

Deferred Prosecutions Need Judicial Oversight

By Brandon L. Garrett and Alan B. Morrison |

Who stands in for the public interest when a corporation settles a criminal case with prosecutors? Not a federal judge, says the U.S. Court of Appeals for the D.C. Circuit in an over-broad ruling in the much anticipated case of Fokker Services, a Dutch aerospace firm which voluntarily reported its illegal activities and, as a result, faced prosecution for violating U.S. sanctions with Iran, Sudan and Myanmar.

<b>COMMUTATION:</b> President Obama at a federal prison in Oklahoma last week, the first such visit by a U.S. chief executive. Days earlier, he commuted the sentences of 46 nonviolent drug offenders.

As Attitudes Change about Prison Sentencing, Lawyers Answer the Call

By Gregory B. Craig |

President Barack Obama appears to be ­steadfast in his determination to commute lengthy sentences of nonviolent inmates who, under current policies, would have received far shorter sentences. Govern­ment officials have pledged to accelerate the pace at which clemency applications are considered and granted. But there is another important story that needs to be told, and that is the historic response from the nation's legal profession.

Antonin Scalia

Dow Chemical's Post-Scalia Settlement is a Spin Doctor's Delight

By Daniel R. Karon |

OPINION: The company said the justice's death forced a deal, but that ignores its three losses.

<b>GRIEF:</b> Jimmy Greene, left, and Nelba Marquez-Greene, center, are parents of Sandy Hook victim Ana Marquez-Greene. Nicole Hockley, mother of Dylan Hockley, is at right. Some family members are suing gun makers.

Sandy Hook Decision Puts Crack in Gun Makers' Armor

By Timothy D. Lytton |

OPINION: Suit brought by families of shooting victims survives against assault weapons manufacturers.

U.S. Department of Justice in Washington, D.C.

Fact Versus Fiction in the Litigation Wars

By David Freeman Engstrom |

The U.S. Supreme Court on Tuesday will hear a case that, even by law standards, seems technical and arcane. But the case is notable because it embodies much of what’s wrong with how we as a society talk about, and our elected leaders debate, the role of lawyers and litigation in our system of government. It also points to some possible fixes.

Portrait of James Madison by John Vanderlyn (1775–1852). Date: 1816.

'1-Person-1-Vote' Decision Relies On Misreading of Federalist Papers

By Ilya Shapiro and Thomas Berry |

OPINION: "Fundamental principle" didn't mean representation must reflect total population.

U.S. Supreme Court building

Supreme Court Must Hear Texas Man's Death Penalty Case

By Seth P. Waxman |

OPINION: A black defendant's trial 20 years ago, tainted by a biased expert, is, indeed, "extraordinary."

<b>DIFFICULT TIMES:</b> Workers removing hides of animals at the union stockyards in Chicago, circa 1923. Upton Sinclair’s novel, “The Jungle,” written in 1906, focused on harsh conditions for Chicago laborers.

Heads Up, Tyson Foods. It's Not 1906. Labor Laws Have Changed.

By Carl J. Mayer |

OPINION: The Supreme Court validates the public's view of inequities in America's workplace.

Robert Bork.

Women's Voice in Bork Hearings Still Resonates

By Barbara Babcock |

OPINION: Nominee's failure to get high-court appointment led to more moderate choices.

Outside the U.S. Supreme Court during the week when three of the biggest decisions of the term were to be issued, including Proposition 8/DOMA, Voting Rights Act, and Affirmative Action. June 25, 2013.

Smile, Justices! You're (Not) On Camera. Again.

By Gabe Roth |

OPINION: It's no surprise that a second cameras-in-the-courts pilot program failed, given its low-tech focus.

<b>STALLED:</b> Protesters blocked cars as people tried to drive into Fountain Hills, Arizona, to attend a rally for Republican presidential candidate Donald Trump on March 19. Three protesters were arrested.

When the Rabble-Rousing Turns Criminal, There's a Civil Solution

By John F. Banzhaf III |

OPINION: Protests are a good thing, but blocking access and inciting violence must stop.

<b>SEARCHING:</b> U.S. Supreme Court nominee Merrick Garland, in his first published opinion for the D.C. Circuit, ruled that evidence of a driver’s personal drug use—such as the smell of pot and a bag of leafy stuff in the backseat—justified searching the vehicle’s trunk.

Garland Fumbled His Debut Appellate Opinion

By Geremy C. Kamens |

OPINION: He's a good man for the job, but an early decision was not the high court nominee's best work.

Merrick Garland

Predictable Fault Lines On Nominee

OPINION: Some expressed respect for Merrick Garland's intellect; others were quick to criticize his rulings.

Canada's Tighter Controls on Patents Create Problems Beyond Its Borders

By Patrick Forrest and Linda Dempsey |

OPINION: A new interpretation of the "utility" requirement is impeding innovation.

Trial Over Law School's Job Statistics Symbolizes an Industry Gone Wrong

By Kyle McEntee |

OPINION: The case against the Thomas Jefferson School of Law and the need for transparency.

Demonstration outside the U.S. Supreme Court to bring attention to reconsideration of the Citizens United v. FEC decision. February 23, 2012.

The Supreme Court's Blind Spot: Understanding How Democracies Function

By Sen. Sheldon Whitehouse |

In the wake of Justice Antonin Scalia's death, politicians, pundits and court watchers all recognize that an ideological shift on the Supreme Court could be in the works. One consequential shift may come if the president nominates a person with a background in elected politics who has first-hand experience with campaign ads, fundraising and constituent accountability.

How the Election Will Shape the High Court

By Leon Friedman |

OPINION: Look past the debate over when to nominate a justice, and you'll see a very different future.

North Korean leader Kim Jong Un.

The Global Community Has the Power To Stop North Korea's Aggression

By Morse Tan |

OPINION: In confronting the security threat it poses, we can't ignore its human rights atrocities.

<b>FOCUSED:</b> The House Committee on the Judiciary Task Force on Over-Criminalization in 2014. Proposed legislation arising from the task force would codify a criminal intent requirement.

Criminal-Intent Legislation Crucial To Ensuring Justice for All

By Joshua L. Dratel and Timothy P. O'Toole |

OPINION: Despite prosecutors' outcry, bill won't give white-collar defendants special treatment.

Why 1 in 3 Lawyers Are Problem Drinkers

By Susan A. Bandes |

OPINION: Competition plays a role, but it's more about how success is defined — by being tough.

Ronald Castille.

The Justices Have a Chance to Send a Clear Message About the Right to Fair Trial

By Daniel Suleiman |

On Monday the U.S. Supreme Court will hear oral argument in the case of Terrance Williams, a prisoner on Pennsylvania's death row who committed two brutal murders when he was a teenager. The question before the court is whether Williams received the impartial hearing our Constitution requires. How his case is decided will send an important message about what it means to get a fair trial in America.

<b>REMEMBERED:</b> Scalia’s chair and the bench were draped in black after his death in Texas on Feb. 13.

Respected or Reviled, Scalia Influenced the Law Like No Other

OPINION: Lawyers, judges and scholars react to the justice's death and its consequences.

Demonstrations outside the U.S. Supreme Court on the day of arguments in the cases involving same-sex marriage, Obergefell v. Hodges. April 28, 2015.

Chemerinsky: The Failures of Scalia's Originalism

By Erwin Chemerinsky |

OPINION: Although Justice Antonin Scalia succeeded in many ways in moving the U.S. Supreme Court in a conservative direction, he also failed in some of his most important quests.

White Partner, Black Associate: How They Made Mentoring Meaningful

By Terry Wade and Brandon Vaughn |

OPINION: Providing help to minority associates can't rest solely with the few partners of color.

<b>UNCOVERED:</b> “Spotlight,” starring Rachel McAdams, Michael Keaton and Mark Ruffalo, shows how Boston Globe journalists overcame hurdles to open records about sexual abuse by Catholic priests.

Federal Appellate Judge: Too Many Sealed Documents

By Gregg Costa |

OPINION: A federal appeals court judge calls for limits on the procedure, because the public deserves better.

Software Innovations Need Patent Protection

By David J. Kappos |

OPINION: A case before the U.S. Court of Appeals for the Federal Circuit threatens to stymie technology.

In '60 Minutes,' Ethical Problems in the Legal Profession Exposed

By John Leubsdorf and William H. Simon |

OPINION: Professors whose work was featured in the news program share take-away lessons.

Members of the Supreme Court gather for a group portrait at the Supreme Court in Washington, Friday, Oct. 8, 2010. Seated from left are: Associate Justices Clarence Thomas, Antonin Scalia, Chief Justice John Roberts, Associate Justices Anthony M. Kennedy, and Ruth Bader Ginsburg. Standing, from left are: Associate Justices Sonia Sotomayor, Stephen Breyer, Samuel Alito Jr., and Elena Kagan.

Give 'Em a Break. Our Justices Are Doing the Best They Can

By Roy Englert Jr. |

It's common to attribute SCOTUS rulings to ideology, but decision-making is nuanced.

Senator Ted Cruz (R-TX)

Ted Cruz is Fit for Office, At Least Under the Constitution

By Richard L. Hasen |

Liberals should embrace an interpretation of the Constitution that maximizes the voter choice and enfranchisement of voters, one that would minimize the reach of an archaic constitutional provision suggesting that only those born on U.S. soil are qualified to be president. Fight Cruz on his ideas, not his eligibility for office.

Rebuttal: AG's Pursuit of Oil Giants Is Legally Sound

By John B. Williams, Peter J. Fontaine and Catherine Reilly |

OPINION: Responding to a previous NLJ op-ed, lawyers say subpoenas over climate change pass muster.

<b>ROE v. WADE:</b> Supporters and protestors gather on the 35th anniversary of the decision making abortion legal. A ruling in a case now before the Supreme Court could restrict access to abortion clinics.

'I Had an Abortion': One Lawyer's Story of a Life-Changing Decision

By Michele Coleman Mayes |

OPINION: New laws affecting reproductive rights compel a woman to reveal a secret.

<b>ADDITIONAL STEPS:</b> President Barack Obama on Jan. 5 announced plans to expand background checks on those who intend to buy firearms, but the proposal won’t provide help to the victims of gun violence.

Gun-Violence Victims Should Be Compensated Via Special Tax

By Alan Morrison |

OPINION: Obama's plan falls short, but a proposal calls for firearms users and makers to pay.

<b>OUTSIDE THE LAW:</b> Ammon Bundy and a group of men have occupied the Malheur National Wildlife Refuge, an area dedicated by President Theodore Roosevelt to sustain migratory bird populations.

Oregon Standoff Is Legally Untenable

By David J. Hayes |

OPINION: In order to preserve the rule of law, our government must enforce it against those who flout it.

More Women in the Judiciary Means Justice for All

By Jay Newton-Small |

OPINION: When females compose even just 20 to 30 percent of courts, changes are dramatic.

<b>MICHAEL STEGMAN:</b> The White House’s top adviser on housing policy opposes the recapitalization of Fannie Mae and Freddie Mac, arguing that doing so will reduce affordable-housing resources.

How the Feds Abuse Fannie and Freddie

By Tara Helfman |

OPINION: Administration's approach keeps the entities under capitalized, to the detriment of taxpayers.

New York Attorney General Eric Schneiderman

Subpoenas Over Climate Change Flout Constitution

OPINION: New York attorney general's move against energy companies runs afoul of the First Amendment.

A Fine Balance of Protecting America and Preserving Individual Freedom

By Ilann M. Maazel |

OPINION: If we don't uphold the basic principles of democracy, what have we become?

A celebration at the Supreme Court in June.

The Year in Opinion

Snapshots of the controversies and issues NLJ readers explored on our op-ed pages in 2015.

Family Stability Hinges on Outcome in Court's Handling of Gay Adoption

By Adam Unikowsky and Cathy Sakimura |

Alabama's undoing of lesbian's parental rights could affect thousands of adoptions.

Donald Trump.

Trump's Idea on Muslims Fails, Despite Precedent

By Kevin R. Johnson |

Some scholars say his call for barring entry into the U.S. could pass muster. They're likely wrong.

<b>ANOTHER TRAGEDY:</b> A couple embraces following a mass shooting that left 14 people dead and 22 injured at a social services facility on Dec. 2 in San Bernardino, California.

Op-Ed: The Fallacy of Thomas' Objection to Restrictions on Assault Weapons

By Jonathan Lowy and Kelly Sampson |

Relying on so-called "common use" to strike down bans is logically flawed.

European Commission in Brussels

Op-Ed: International Investment Court's Time Has Come

By Douglas Singleterry |

European Commission has proposed a system to promote fairness. Obama should get on board.

Op-Ed: Don't Act Unilaterally To Close Guantánamo

By Louis Fisher |

President Obama should root his legacy in the use of legal principles, not executive authority.

Op-Ed: Lift the Ban on Academic Credit For Paid Legal Work

By Thomas Wheatley |

As a paid law clerk, the modest compensation I receive certainly makes life as a law student a little easier. For the American Bar Association, however, my paycheck is a problem. Unlike my unpaid peers, my compensation precludes my ability to earn academic credit for the experience I receive during my clerkship. The policy is economically unsound and harmful to law students.

Richard B. Russell Federal Building and U.S. Courthouse, Atlanta Ga.

Op-Ed: Richard B. Russell's Name Should Be Removed from the U.S. Courthouse

Because he was an ardent segregationist, Richard Russell’s name should not be on the federal courthouse in Atlanta.