FindLaw columnist and U.C., Davis, law professor Vikram Amar explains the legal context of the controversy over whether the Senate should seat Roland Burris, despite the fact that Burris was nominated by Illinois Governor Rod Blagojevich. Blagojevich is facing a federal indictment claiming he tried to gain favors in exchange for the Senate seat. No one is suggesting that Burris was involved in any criminal activity, such as paying for the seat, but other potential candidates may have been excluded because they would not "pay to play." Moreover, Blagojevich -- in addition to having been indicted -- has been impeached (but not yet convicted or removed) by the Illinois legislature, and the Senate has some constitutional power to police whom it will seat. Amar explains how all these factors intersect, and offers a lesson the controversy should teach us for the future.
Friday, Jan. 16, 2009
FindLaw columnist and Cardozo law professor Marci Hamilton considers the changing definition of "conservative" within the arenas of both politics and law. In politics, Hamilton points out the striking diversity of viewpoints among the sets of people who all claim the label "conservative." Meanwhile, on the Supreme Court, Hamilton questions how strongly conservative the right wing of the Court can truly be, when it has largely preserved abortion rights, and when swing justice Anthony Kennedy has authored two landmark pro-gay-rights opinions. She also notes that it is no longer the case that the Court's federalism divides the Justices neatly along political lines; to the contrary, a recent case about the "presumption against preemption" illustrated that states' rights federalism and judicial conservatism can no longer be equated.
Thursday, Jan. 15, 2009
FindLaw columnist and human rights attorney Joanne Mariner applauds President-elect Obama's decision to close Guantanamo on his first full day in office, but cautions that one key issue that Guantanamo raised -- the indefinite detention of persons without charge, and without trial -- will not be resolved by its closure. Indeed, in Afghanistan, Mariner notes, hundreds of detainees are being held at the Bagram Air Force Base, some for years, and all without access to attorneys. Mariner focuses, in particular, on Haji Wazir, one of the petitioners in a case before the federal district court in Washington, D.C. The evidence suggests that Wazir was "disappeared" by the CIA; eventually, he was held incommunicado at Bagram, despite his family's attempts to reach him. The case in which he is a petitioner challenges the Bagram detentions and seeks to invoke the writ of habeas corpus. Yet Mariner notes that there is a risk, based on a recent Supreme Court decision, that even though the petitioners are in U.S. custody, the Court may decide they are beyond the reach of the Great Writ. Mariner argues that, like the Guantanamo detainees before them, the Bagram detainees should have access to the writ of habeas corpus, and that their indefinite detentions should be supplanted by fair federal-court trials.
Wednesday, Jan. 14, 2009
FindLaw columnist and Cardozo law professor Anthony Sebok discusses a recent, significant decision by the California Supreme Court holding that, despite the state's Good Samaritan law, a person who provides nonmedical aid -- such as pulling someone out of a car -- at the scene of an accident can still be held liable for injuries that result from that aid. Sebok explains the points of view of both the majority and the dissenters, and considers from a societal perspective what the ideal rule should be in Good Samaritan situations: Should that rule protect the provision by Good Samaritans of medical aid, nonmedical aid, both, or neither?
Tuesday, Jan. 13, 2009
FindLaw columnist and Cornell law professor Michael Dorf discusses the roots of President-elect Obama's well-known reluctance to give up his Blackberry when he takes office. In particular, Dorf describes the 1978 law -- the Presidential Records Act (PRA) -- that has caused Obama's advisors to strongly recommend that he do so. Dorf notes that, even apart from the PRA, security concerns may counsel against Obama's keeping his Blackberry, and considers whether, if those security concerns could be addressed, the PRA should be amended to exempt certain electronic communications. Dorf also notes a complicating factor here: Executive orders by former Presidents Reagan and George W. Bush purport to limit the PRA's scope, but Obama may well reverse or alter those orders -- thus putting a broader set of his own Blackberry communications in play.
Monday, Jan. 12, 2009
FindLaw columnist and U. Washington law professor Anita Ramasastry considers a recent California lawsuit that challenges, as defamatory, a review on Yelp.com that criticized a chiropractor's billing practices. Ramasastry explains that, in California and other states
with "anti-SLAPP" laws, it may be possible for defamation defendants to get the complaints against them dismissed at an early stage, if the comments at issue had a public-interest component. But when does a review on a site like Yelp.com have a public-interest component, and when is it simply a private issue between a consumer and a provider of goods or services? Ramasastry considers several precedents that illuminate when a posting touches upon the public interest, and when it does not.
Monday, Jan. 12, 2009
FindLaw columnist and former counsel to the president John Dean comments on how the Obama Administration is likely to address the issues of presidential power and responsibility that led the Bush Administration into so much controversy. Dean contends that the Bush
Administration seriously damaged the institution of the presidency through a pattern of conduct in which the Administration ignored the Geneva Conventions and statutes such as the Foreign Intelligence Surveillance Act, deemed torture legal, and coupled numerous new statutes with presidential signing statements claiming the president had the power to disregard them. Dean explains why there is every indication that the new nominee for the head of the Office of Legal Counsel, Dawn Johnsen, will take a very different and appropriately balanced approach.
Friday, Jan. 9, 2009
FindLaw columnist and Cardozo law professor Marci Hamilton considers a sobering topic: the instances, in 2008, in which children suffered harm in religious settings. Hamilton cites (1) instances in which it is alleged that children died because of their parents' religious beliefs forbidding medical treatment; (2) a study showing that abstinence-only sex education, supported by the Bush Administration for religious reasons, decreased condom use and thus exposed young people to STDs; (3) evidence of sexual abuse and neglect at a Texas FLDS compound, which led to a report by Texas Children's Protective Services detailing widespread abuse; and (4) credible allegations of child sex abuse within the ultra-Orthodox Jewish community, which so far have caused some of the community's religious leaders to suggest internal remedies, rather than calling in the civil authorities.
Hamilton contends that each set of incidents is disturbing in itself and that, together, they form a pattern where children are harmed in religious settings and civil authorities must step in to remedy the situation.
Thursday, Jan. 8, 2009
FindLaw columnist and Cornell law professor Sherry Colb considers what action, if any, should be taken in light of the results of a recent, empirical study by Professors Theodore Eisenberg and Valerie Hans -- which will appear this year in the Cornell Law Review. Eisenberg and Hans found that the revelation of prior convictions -- which are fair game for prosecutors, if defendants opt to take the stand -- in fact increases the chance of conviction in close cases, just as defense attorneys have always feared. Colb considers possible solutions geared toward protecting fair-trial rights -- such as our justice system's deciding to never admit prior convictions, always admit prior convictions, or bar all defendants from taking the stand.
Wednesday, Jan. 7, 2009
FindLaw columnist and Hofstra law professor Joanna Grossman discusses a recent, significant decision from the Iowa Supreme Court regarding prenuptial agreements (commonly nicknamed "prenups"). Grossman also explains, more generally, how such agreements have developed in America, and the different approaches regarding how they should be interpreted, and how far they can go. In addition, she proposes a hybrid approach to interpreting prenuptial agreements that borrows elements from two popular approaches -- including the one the Iowa Supreme Court adopted.
Tuesday, Jan. 6, 2009
FindLaw columnist, attorney, and author Julie Hilden discusses a defamation suit that was recently brought by lobbyist Vicki Iseman against the New York Times, for a February 2008 article that many read to suggest that Iseman was having an affair with then-presidential candidate John McCain. Hilden explains the issues that may come up if the Iseman suit moves forward, including those relating to public-figure versus private-figure intent standards, defamation law's requirement of a "statement of fact," and the Times's use of confidential sources. She also suggests that problems with the case -- and with the article, as the Times's own public editor admitted -- should cause the Times to make a high settlement offer to Iseman.
Monday, Jan. 5, 2009
FindLaw columnist Vikram Amar and FindLaw guest columnist Alan Brownstein, both U.C., Davis, law professors, contribute the latest in an ongoing series of columns on the upcoming California Supreme Court decision regarding Proposition 8. (As readers are likely aware, Proposition 8 is the California initiative that purports to amend the California constitution to bar marriage rights to gay couples.) In this installment in the series, Amar and Brownstein examine the arguments put forth by California Attorney General Jerry Brown in the case. They contend that Brown's surprising and interesting arguments raise key questions about the nature of state constitutionalism.
Friday, Jan. 2, 2009
FindLaw guest columnist and U. Richmond law professor Carl Tobias makes predictions about the likely content and message of the year-end report on the federal judiciary that Chief Justice Roberts will soon release. In particular, Tobias notes ways in which the recession may affect the proposals and points made in the Chief Justice's report, and points out the large number of federal judicial seats that President-elect Barack Obama will fill when he takes office (54 at a minimum, and perhaps as many as 119). Tobias also notes that this is a moment in history when there are justifiably high hopes for all three branches' ability to work together effectively to address pressing issues relating to the federal judiciary, including relatively low judicial salaries that may deter top candidates or convince sitting judges to require early.
Wednesday, Dec. 31, 2008
FindLaw columnist and Cardozo law professor Anthony Sebok analyzes the Supreme Court's recent federal-preemption decision. Sebok looks both backward -- to the major precedent with which the Court had to contend -- and forward, to how this ruling may affect or help predict the way the Court will rule in another major preemption case, still to be decided this Term. Sebok also considers the evolving views of the Justices on the preemption issue, and their possible motivations for changing their views on preemption over time. Finally, he considers the controversial "presumption against preemption," and the role it is playing here.
Tuesday, Dec. 30, 2008
FindLaw columnist and Cornell law professor Michael Dorf considers whether President Obama will effect the same kind of constitutional transformation that FDR did with his New Deal. Dorf begins by reviewing exactly how FDR ended up transforming constitutional law, by lessening the importance of states' rights and economic rights, and greatly increasing administrative agencies' role. He then goes on to sketch what the Obama Administration's constitutional revolution might look like, covering topics such as international action, the public/private distinction, and the possible creation of new rights.
Tuesday, Dec. 30, 2008
FindLaw columnist and human rights attorney Joanne Mariner argues that, in keeping his promise to close the detention center at Guantanamo, President-elect Obama should follow the counsel given in an open letter to him from the American Civil Liberties Union (ACLU), Amnesty International USA, Human Rights First, and Human Rights Watch, of which Mariner is a Director. Among the four groups'recommendations, as Mariner explains, is the contention that detainees should either be prosecuted in the federal courts or released to their home countries (unless they would suffer persecution there, in which case they must be resettled elsewhere). In support of this recommendation, Mariner points to evidence that the federal courts have a long history of the successful prosecution of terrorism cases. In addition, citing prosecutors' ability to bring charges such as conspiracy based on minimal evidence, Mariner contends that President-elect Obama should not -- as some have suggested -- embrace a system allowing the preventive detention of some persons who cannot be proven beyond a reasonable doubt to have committed any crime.
Monday, Dec. 29, 2008
FindLaw columnist, attorney, and author Julie Hilden considers the First Amendment costs of the financial troubles newspapers are currently undergoing, and the possibilities for the future. In particular, Hilden focuses on the likelihood that the worsening fortunes of newspapers will aggravate the impact of the "digital divide" between Internet "haves" and "have nots"; the free-speech costs of increasing media consolidation; and an interesting proposal by Joel Brinkley to craft an antitrust-law exception that would allow newspapers to together agree to charge for access to their websites.
Wednesday, Dec. 24, 2008
FindLaw columnist and Cardozo law professor Marci Hamilton discusses the Bush Administration's recent decision to put into place a "conscience rights" policy. The policy gives healthcare providers the option of refusing to provide -- or even provide information about -- healthcare options that go against the provider's own conscience, including the option of abortion and probably also options involving contraception. Hamilton argues that the decision fits into a disturbing pattern showing the Administration's willingness to act unilaterally, even if its decisions clash with those of Congress and the States and with constitutionally-mandated church/state separation.
Tuesday, Dec. 23, 2008
FindLaw columnist and Cornell law professor Sherry Colb discusses a case that the Supreme Court recently opted to decide, involving the following interesting scenario: The attorney for the defendant in a criminal case sought to use one of the defendant's peremptory challenges (that is, a challenge for which the defendant need not provide justification, but which automatically excludes a juror). The judge, however, refused to honor that challenge, on the ground that the challenge discriminated against the juror based on her race and sex and therefore violated a rule set down in Supreme Court precedent. That very juror -- who was aware that the defendant had tried to use the challenge to exclude her -- not only joined the jury, but became its foreperson. The jury convicted the defendant. Based on this scenario, the Court must address this difficult question: Assuming the judge's ruling was wrong, and the defendant should have been able to use the peremptory challenge, should his conviction automatically be reversed -- or should it be subject to harmless-error analysis, under which the juror's presence on the jury may well be seen as innocuous, since no reason (such as bias) was given for removing her?
Monday, Dec. 22, 2008
FindLaw columnist and U. Washington law professor Anita Ramasastry discusses a Kentucky state court ruling that she argues could set a dangerous precedent affecting constitutional rights on the Internet. In the decision -- which is now before Kentucky's Court of Appeals -- a trial judge held that the State of Kentucky had the power to seize the domain names of online gambling sites that were being accessed by Kentucky residents, even though the sites had many other users, some of whom apparently live in places where gambling is legal. The trial judge deemed the domain names to be illegal "gambling devices," not unlike slot machines or roulette tables, but Ramasastry argues that this conclusion was mistaken -- as was the court's conclusion that the domain names were located in Kentucky. As Ramasastry explains, the appellants -- joined by several Internet civil liberties groups, such as the ACLU and EFF -- also argue that the seizure, if upheld, would violate constitutional rights to free speech and due process, as well as the constitutional principle that individual states cannot regulate interstate or international commerce.
Monday, Dec. 22, 2008
FindLaw columnist and U.C., Davis, law professor Vikram Amar continues a multi-part series of columns on the upcoming California Supreme Court case regarding Proposition 8. (As readers may be aware, Proposition 8 purported to reverse the Court's prior decision that the California Constitution extends marriage rights equally to straight and gay couples alike.) In this installment, Amar considers the crucial question of whether Prop. 8 is a valid amendment to the California Constitution, or an invalid revision to it -- posing a number of hypotheticals as to whether other possible propositions targeting certain groups would be amendments or revisions. He also suggests two criteria by which the public is likely to judge the court's eventual decision in the case -- its plausibility based on court precedent, and its persuasiveness in its own right -- and considers how these criteria may apply to the challengers' arguments.
Friday, Dec. 19, 2008
FindLaw columnist, attorney, and author Edward Lazarus weighs in on the question of which of the three alleged wrongdoers currently dominating headlines is worst, assuming the claims against all three turn out to be completely true: Governor Rod Blagojevich, who is claimed to have invoked his office in schemes to gain money and other objectives; Bernie Madoff, whose "investments" are now claimed to have been no more than a Ponzi scheme; or Marc Dreier, who is claimed to have used his legal practice as a cover for fraud? In analyzing the question, Lazarus notes how it tests our values: How much worse do we think wrongdoing is when it involves the misuse of public office, versus conduct by private persons? How important is the magnitude of the harm caused, versus the nature of the conduct alleged? How much does motivation matter, as compared to the misconduct itself?
Thursday, Dec. 18, 2008
FindLaw columnist and human rights attorney Joanne Mariner discusses one of the key questions President-elect Barack Obama will face as he makes good on his promise to close the notorious detention center at Guantanamo Bay: What should be done with detainees who should be released, but cannot be returned to their home countries because they would face torture or other mistreatment there? Mariner points out that most of the detainees at issue have no Al Qaeda links or record of violence, but also notes that the Bush Administration's labeling all Guantanamo detainees "terrorists" would make it politically difficult for the Obama Administration to resettle innocent detainees in the United States. Accordingly, she contends that the U.S. should pursue promising signs that European Union countries may be willing to accept these detainees -- but also consider that Europe may be more willing to help if America accepts its share of the released detainees, too.
Wednesday, Dec. 17, 2008
FindLaw columnist and Cardozo law professor Anthony Sebok discusses the fascinating case of Williams v. Philip Morris -- which has ping-ponged back and forth between the Oregon Supreme Court and the U.S. Supreme Court, where it is now being heard for the third time. The case concerns a $79.5-million punitive damages awarded rendered by
an Oregon jury to a smoker's widow. The controversy over the case involves the judge's decision to instruct the jury that it was permitted to take into account harms caused by the same tobacco-company conduct to other smokers who were not parties to the case. Sebok explains why the case now involves two powerful, clashing arguments -- and notes that, based on oral argument, Chief Justice Roberts may favor a disposition that would re-examine possible due process limits on damages awards in personal-injury cases like this one.
Tuesday, Dec. 16, 2008
FindLaw guest columnist and New York Law School professor Ruti Teitel discusses the question of how the incoming Obama Administration should deal with the strong evidence of human rights abuses -- including torture and rendition -- by the Bush Administration in connection with the "war on terror." Drawing in part on the experience of her native
Argentina, Teitel contends that the best approach would be an independent, nonpartisan truth commission, where evidence, if strong, could lead to prosecutions in civilian federal courts. She also points out that, with several foreign tribunals poised to address cases involving allegations of Bush Administration abuses, the alternative to a full U.S. investigation is not that no investigation will occur; it is that foreign investigations will determine the historical record with respect to U.S. conduct.
Tuesday, Dec. 16, 2008
FindLaw columnist and Cornell law professor Michael Dorf makes an interesting argument: While the allegations against Illinois Governor Rod Blagojevich describe contemptible and illegal behavior, Dorf contends, it is also behavior that is not as anomalous, in our electoral system, as we might like to believe. With respect to each of the following three allegations, Dorf makes a parallel to other disturbing, yet perfectly legal, behavior: The allegation that Blagojevich tried to penalize Chicago Tribune journalists for negative coverage and effectively pay for positive coverage; the allegation that Blagojevich extorted contributions in exchange for government favors; and the allegation that Blagojevich tried to obtain benefits for himself or his wife in exchange for appointing a particular person to fill President-elect Obama's now-vacant Senate seat. Dorf thus contends that Blagojevich's alleged misdeeds touch on much deeper issues in American politics.
Monday, Dec. 15, 2008
FindLaw columnist and U. Richmond law professor Carl Tobias makes a strong case for Barack Obama's selecting leading legal academics as some of his nominees to key seats on the federal appellate courts. Tobias points to the practices of several prior presidents who chose law professors for the bench; contends that law professors' skills and experience ideally prepare them to serve as appeals jurists; and notes that those professors who have proven to be collegial with fellow faculty members would be very likely to exhibit the same laudable collegiality toward fellow judges with whom they would sit on three-judge or en banc panels. Tobias also points out that Obama -- himself a former law professor -- is already very knowledgeable about this set of potential judges. Finally, Tobias names a number of law professors who he argues would be outstanding candidates.
Monday, Dec. 15, 2008
FindLaw columnist and former counsel to the president John Dean takes strong issue with claims that black Californians are to blame for the fact that Proposition 8 -- which purports to amend the California Constitution to withhold marriage rights from gay couples -- was passed by voters on Election Day 2008. Dean argues that the real blame lies with those who led the anti-Proposition 8 campaign; he contends that their strategies and advertisements failed to drive home to black California voters the strength of the parallel between anti-miscegenation laws and Proposition 8, and to effectively present the argument that Proposition 8 is not just a definition of marriage, but also a blatant form of discrimination.
Friday, Dec. 12, 2008
FindLaw columnist and U. Washington law professor Anita Ramasastry describes and comments on the Global Network Initiative (GNI) -- through which Microsoft, Google and Yahoo! are attempting to tackle the issues that arise from their providing Internet services in countries that demand censorship of webpages and/or ask Internet companies for information leading to the identity of persons whose postings are seen as anti-government or otherwise objectionable. As Ramasastry explains, over the past two years, the three companies have worked with human rights organizations and NGOs such as the Center for Democracy and Technology to develop a set of principles to address and prevent infringements of speech and privacy rights. She points out that the effort, while a positive step, has some sharp limits, which she details.
Firday, Dec. 12, 2008
FindLaw columnist and Cardozo law professor Marci Hamilton argues that the religious leaders who signed the recent "No Mob Veto" advertisement in the New York Times, taking issue with the tactics of certain Proposition 8 protesters, deserve both praise and blame. She contends that the signatories are right to condemn tactics such as disrupting church services or spraying graffiti, but wrong to threaten to "expos[e]" and "publicly sham[e]" those who employ "the rhetoric of anti-religious bigotry." Drawing on comparisons to the anti-abortion movement, Hamilton contends that the right line to draw here permits speech but not illegal or disruptive action.
Thursday, Dec. 11, 2008
FindLaw columnist and Cornell law professor Sherry Colb considers claims that a person who wrote "model" term papers did nothing morally wrong, and that in writing the papers, he was merely engaging in First-Amendment-protected speech. Colb contends that while the writing of true "model" papers would indeed be blameless and constitutionally-protected, in this case the surrounding evidence (especially the amounts of money paid) shows that the term papers were actually written so that students could pass them off as their own. To support her point, Colb draws analogies to areas of criminal law where conduct that is defended as innocuous can be proven to be criminal based on the evidence surrounding it.
Wednesday, Dec. 10, 2008
FindLaw columnist, visiting Vanderbilt law professor, and Hofstra law professor Joanna Grossman discusses a recent Florida state court decision striking down a state law banning gay persons from adopting children. In addition to explaining the basis for the state court decision, Grossman argues that the law should have been struck down earlier as violating the federal Constitution, in the context of a case decided by the U.S. Court of Appeals for the Eleventh Circuit. Grossman also discusses why adoption laws that do not expressly mention gay persons (as the Florida law did), but still clearly apply to them, are less likely to be struck down.
Tuesday, Dec. 09, 2008
FindLaw columnist, attorney, and author Julie Hilden discusses a Louisiana law firm's federal-court challenge to bar rules that it contends will inhibit both its attorneys' right to blog on legal topics and their right to advertise their professional services. Noting that the U.S. Supreme Court has recognized attorneys' First Amendment right to advertise, and that there surely is a First Amendment right to blog, Hilden argues that the firm has a strong case -- especially with regard to the bar rule that can be challenged as a "prior restraint." Hilden also advises bars nationwide to review their rules with an eye to Internet application, if they do not want to face meritorious First Amendment challenges like the one brought in Louisiana.
Monday, Dec. 08, 2008
FindLaw columnist Vikram Amar and FindLaw columnist Alan Brownstein, both U.C., Davis, law professors, continue an ongoing series of columns on the upcoming California Supreme Court decision regarding Proposition 8. (As readers may know, Proposition 8 is the California initiative that purports to counteract the Court's interpretation of the California constitution to extend marriage rights equally to gay and straight couples.) In this column, Amar and Brownstein take on a key question: Should the California Supreme Court resolve the question of whether Proposition 8 validly amended the California Constitution, or should the Court hold that that question is one for Governor Schwarzenegger to resolve?
Friday, Dec. 05, 2008
FindLaw columnist, attorney, and author Edward Lazarus discusses the parallels between President Lincoln and President-elect Obama -- starting with Obama's decision to follow in Lincoln's footsteps by putting together a "team of rivals" for his incipient Administration, and continuing with an assessment of the effect each has had on the situation of African-Americans. Yet Lazarus also warns that it would be premature to claim that Obama's ascendance marks the end of the work Lincoln started regarding race -- pointing out that, in the states of the former Confederacy, Obama still polled lower than fellow Democrat John Kerry, even as he surpassed Kerry's showing elsewhere in America.
Thursday, Dec. 04, 2008
FindLaw columnist and Cornell law professor Michael Dorf comments on a recent -- and potentially very significant -- decision by the U.S. Court of Appeals for the Second Circuit. As Dorf explains, the Second Circuit rejected U.S. citizen Wadih El-Hage's Fourth Amendment challenges to warrantless searches of his home in Kenya and warrantless electronic surveillance of his phone conversations there. Because the searches were conducted by U.S. agents (with the cooperation of local governments), El-Hage argued that the Fourth Amendment applied. The Second Circuit ruled against him -- but was the ruling motivated by constitutional law, or fear of releasing El-Hage, who was convicted of involvement with the 1998 Al Qaeda bombings of embassies in Kenya and Tanzania? Dorf suggests the ruling -- while understandable in light of the context -- is problematic on the legal merits.
Wednesday, Dec. 03, 2008
FindLaw guest columnist and Pepperdine law professor Douglas Kmiec weighs in on one of this Term's most significant Supreme Court cases -- which raises the question whether gender discrimination plaintiffs may seek remedies through Section 1983, or only through Title IX. Kmiec contends that it is quite clear that Congress intended both avenues to be available, but notes that Justices like Antonin Scalia prefer not to delve into Congressional intent. He also criticizes the Bush Administration for failing to participate, through the Solicitor General's Office, in this case, and express the hope and belief that the incoming Obama Administration will take a different view on similar gender-equality cases.
Wednesday, Dec. 03, 2008
FindLaw columnist and Cardozo law professor Anthony Sebok discusses a recent defense verdict in a case brought against Chevron under the Alien Tort Statute (ATS). The plaintiffs argued that Chevron should be liable, under both the ATS and California tort law, for a brutal attack by the Nigerian military and police against protesters on Chevron's oil platform. They pointed out that Chevron had invited the military and police in, and even brought them there with company helicopters. In response, Chevron argued that it could not have foreseen that the military and police would use lethal force and later, torture. While the jury sided with Chevron, Sebok cautions that it is dangerous to generalize, on the basis of this particular defense victory, regarding the chances of success for other ATS cases in the future because there were aspects of the Chevron case that made it unusual and unique.
Tuesday, Dec. 02, 2008
FindLaw columnist and human rights attorney Joanne Mariner argues that the incoming Obama Administration should, within its first six months, convene a nonpartisan Commission of Inquiry regarding post-9/11 human rights abuses, including torture committed or caused by the U.S. government. Among the questions the Commission should address, Mariner contends, are who should be held accountable for proven abuses -- such as the waterboarding of detainees -- and how. Mariner offers specific suggestions as to features the Commission must have if its work is to be effective -- such as subpoena power, the power to recommend prosecutions of former government officials, and the ability to review relevant classified material. In addition, she argues that the Commission should be convened regardless of whether President Bush issues a set of pardons for those who may be accused -- because, among other reasons, the historical record should be set straight.
Monday, Dec. 01, 2008
FindLaw columnist and Cornell law professor Sherry Colb analyzes whether a controversial probation condition imposed by a Texas judge would be deemed constitutional under governing Supreme Court precedent. The judge imposed the condition upon a woman who was guilty of failing to protect her child from the child's father's beatings, and failing to seek medical care for the child's injuries, which included broken bones. The judge sentenced the woman to ten years' probation -- with the condition that she is forbidden to conceive and bear a child. Colb explains both the argument that could be made in support of such a probation condition, and the reasons why that argument is flawed.
Wednesday, Nov. 26, 2008
FindLaw guest columnist and U. Richmond law professor Carl Tobias explains why both the federal court system and sitting federal judges may have especially good reasons to give thanks this year. In addition to predicting that the Obama Administration will prove to have a positive effect on the federal courts, Tobias also describes specific changes that are likely to lower the number of vacant judgeships, raise judges' salaries to attract excellent candidates away from the private sector, improve the effectiveness of the judiciary's self-policing, and ensure that the experience of sitting on a federal jury is a more positive one.
Wednesday, Nov. 26, 2008
FindLaw columnist, visiting Vanderbilt law professor, and Hofstra law professor Joanna Grossman describes four key ways in which the Obama Administration could improve workplace equality in America, by eliminating discrimination based on sex or sexual orientation. She also notes that some of the solutions would be relatively easy for the Obama Administration to accomplish, by simply reversing prior Bush Administration policies or signing legislation President Bush had threatened to veto. Among the topics Grossman covers are pay discrimination, rules that make anti-discrimination law harder to enforce, possible changes to the Family and Medical Leave Act, and the recognition of the rights of gay, lesbian, and transgender workers not to suffer discrimination.
Tuesday, Nov. 25, 2008
FindLaw columnist, attorney, and author Julie Hilden discusses the Supreme Court's decision, this month, to grant review of a lower-court ruling that concerns the intersection of campaign finance law and the First Amendment. The lower-court ruling approved the Federal Election Commission's decision to apply the McCain-Feingold campaign finance law to a film called "Hillary: The Movie" and to the ads for that film. As Hilden explains, however, the ruling may either be held to violate the Supreme Court's narrow definition of what counts as an "electioneering communication," or cause the Court to narrow that definition further.
Monday, Nov. 24, 2008
FindLaw columnist and U.C., Davis, law professor Vikram Amar begins what will be a series of columns on California's Proposition 8. (As readers may know, Proposition 8 is the initiative that purported to amend the California Constitution to ban same-sex marriage, after the California Supreme Court had held that the Constitution guaranteed marriage equality.) In the series, Amar will address two questions: Was Proposition 8 validly enacted? And, what is the status of same-sex marriages that were entered into after the California Supreme Court held that the California Constitution guaranteed marriage equality, but before 52% of California voters endorsed Proposition 8?
Friday, Nov. 21, 2008
FindLaw columnist, attorney, and author Edward Lazarus discusses a recent case that divided the U.S. Court of Appeals for the Ninth Circuit. The case arose because a federal district judge deemed a litigant vexatious and barred him from filing further lawsuits unless he met certain requirements. A three-judge Ninth Circuit panel upheld the district judge's order, but other Ninth Circuit judges strongly disagreed with that result -- pointing out that the litigant was correct that Americans with Disabilities Act violations had occurred, and that his claims to have suffered injury as a result, while dubious, had never been put to the test of an evidentiary hearing. In addition to discussing the Ninth Circuit clash, Lazarus also parallels that conflict to a similar clash over vexatious litigants that divided the U.S. Supreme Court in the 1980s.
Thursday, Nov. 20, 2008
President-elect Barack Obama recently re-committed himself to fulfilling his campaign promise to close the infamous detention facility at Guantanamo -- but when he does so, important decisions will need to be made regarding the treatment of both current detainees and future terrorism suspects. Drawing upon her own and others' work at Human Rights Watch, FindLaw columnist and human rights attorney Joanne Mariner suggests a six-step plan for the Obama Administration to follow when closing Guantanamo. Among other features, the plan would offer an assessment of the evidence against current Guantanamo detainees by a new Administration that is able to take a more balanced look; and would ensure that all terrorism charges are tried, using fair procedures, in the federal courts -- which have already seen the post-9/11 prosecutions of over 100 such cases.
Wednesday, Nov. 19, 2008
FindLaw columnist and Cardozo law professor Anthony Sebok predicts the possible effect of the new Obama Administration and the influx of Democrats into Congress upon the civil justice system in general, and the tort system in particular. In considering President-elect Obama's views, Sebok points to both his support for the Class Action Fairness Act, which some other Democrats opposed, and the article Obama co-authored with fellow Senator Hillary Clinton on an alternative dispute resolution mechanism for medical malpractice claims. Yet overall, Sebok advises readers to look for more action from Congress than the incoming president on such matters.
Tuesday, Nov. 18, 2008
FindLaw columnist and Cornell law professor Michael Dorf comments on the broad questionnaire President-elect Barack Obama's transition team is requiring potential staffers to fill out. Citing particular questions that are troubling, Dorf contends that some of the information sought is not properly relevant to an applicant's qualifications for an Obama Administration job, and expresses concern that some of the questions will either cause well-qualified applicants to be screened out, or deter well-qualified applicants from seeking out jobs with the Administration. At a time when the country truly needs the best and the brightest, Dorf argues, minor personal peccadilloes ought not to be the focus; finding the best possible person for the job should.
Monday, Nov. 17, 2008
FindLaw columnist and former counsel to the president John Dean makes predictions regarding Barack Obama's impending presidency, based on work by scholar and author James David Barber. Barber divided presidents into four categories based on whether they perform actively or passively in their political roles, and whether their feelings toward those roles were positive or negative. Dean deems Obama an active/positive president, and George W. Bush an active/negative president -- and explains how Bush's characterization accurately predicted important aspects of his presidency, and how Obama's characterization may do the same. Dean also notes which other presidents fell into the same categories as Obama and Bush, and how those presidents fared.
Friday, Nov. 14, 2008
FindLaw columnist and Cardozo law professor Marci Hamilton isolates five issues, all touching on the relationship between the federal government and religion or religious groups and organizations, that she argues should be top priorities for the incoming Obama Administration. Hamilton focuses on stopping government funding to social-service programs that discriminate based on religion; choosing Justice Department officials and Supreme Court Justices with a strong belief in church/state separation, while abolishing the Department's religion chair; supporting states' prosecutions of child sex abuse, including in religious communities and institutions, and conditioning federal funds on abolition of the sex-abuse statute of limitations; lend resources for investigations of instances of child sex-abuse connected to polygamy; and revoking laws that give religious entities a strong edge in local zoning disputes.
Thursday, Nov. 13, 2008
FindLaw columnist, attorney, and author Julie Hilden discusses Barack Obama's comments on what qualities he will seek if he has the opportunity to nominate Justices to the Supreme Court. Obama emphasized that he will select nominees with a strong sense of empathy, developed through life experience, and suggested that he will not limit his search to law professors and judges. Recently, Senate Republican Jon Kyl threatened to block Obama's nominees if their empathy played too strong a role, compared to their respect for Court precedent. Hilden argues that Obama's search for empathetic judges is legitimate, giving examples of decisions in which both conservative and liberal justices have exhibited empathy. However, she expresses skepticism about Obama's going beyond law professors and judges, and emphasizing other life experience, in selecting his nominees.
Wednesday, Nov. 12, 2008
What happens when a federal judicial district finds itself short of judges? FindLaw guest columnist and University of Richmond law professor Carl Tobias answers the question by taking the United States District Court for the District of Colorado as a case in point. Tobias explains that since the progress of a federal district court's criminal cases must comply with the Speedy Trial Act, it is the court's civil docket that predictably falls behind when the court is short-staffed. He cites specific strategies that may ease the situation -- ranging from seeking parties' consent to having their cases tried before magistrate judges, to enlisting the aid of federal appellate judges and of senior federal district judges, who typically take on a lighter caseload.
Tuesday, Nov. 11, 2008
FindLaw columnist and Cornell law professor Sherry Colb discusses a criminal procedure case that the Supreme Court will resolve this Term. The case arose because William Osborne, convicted of kidnapping and sexual assault in Alaska 14 years ago, says up-to-date DNA analysis will clear him, but prosecutors refuse to turn over the evidence to be tested. Colb considers whether there is any "rational basis" -- the legal standard -- for the prosecutors' stance, and finds none, but she also notes that in other DNA-testing cases, it is possible that a rational basis might exist, depending on the facts of the case.
Monday, Nov. 10, 2008
FindLaw columnist and U.C., Davis, law professor Vikram Amar considers the pros and cons of America's current system of electing presidents and vice presidents on a single ticket. Amar notes that picking Sarah Palin as a running mate may have hurt John McCain, and points out that, with a separate-ticket system, voters who preferred McCain over Obama could still have opted for Biden, not Palin, as their Vice President. Amar points out that in other contexts (such as selecting Senators and Members of Congress on Election Day), it's not rare for Americans to split their votes between Democrats and Republicans on a single trip to the ballot box. Accordingly, he asks why the presidency and vice-presidency are inextricably linked on the ballot, and gives reasons why we may, in the future, want to reconsider that choice.
Friday, Nov. 07, 2008
FindLaw columnist, attorney, and author Edward Lazarus considers the significance of Barack Obama's electoral victory, and the reasons why Obama prevailed over McCain. Lazarus also contends that the way Obama conducted his campaign bodes well for how he will fare as president -- for during the campaign, Obama steered calmly through various crises, adhering to reasoned judgment and making excellent use of his talent for inspiring others.
Thursday, Nov. 06, 2008
FindLaw columnist and Cornell law professor Michael Dorf comments on how Barack Obama, as president, should build on his historic election victory, suggesting several policy options that Obama should pursue. First, Dorf argues that Obama should use government spending -- especially on aging infrastructure and public education -- as part of an economic stimulus plan that will also be bolstered by tax cuts for the middle class. Second, Dorf contends that Obama is right to counsel a withdrawal from Iraq, but may be wrong in offering a companion plan to bolster troops in Afghanistan, which is notoriously difficult for world powers to attempt to occupy. Third, Dorf suggests that Obama should offer former rival John McCain an administration position -- perhaps in an area relating to campaign finance, the treatment of detainees, or global warming, all topics on which McCain has expressed moderate views.
Wednesday, Nov. 05, 2008
FindLaw guest columnist, criminal defense attorney, and television legal commentator Jonna Spilbor discusses the motion for a new trial recently that was filed by O.J. Simpson's defense lawyers, after Simpson was convicted of kidnapping and armed robbery in connection with a Las Vegas incident involving sports memorabilia. Spilbor explains why the judge is likely to deny the motion, but notes that Simpson may fare better on appeal --- particularly with respect to arguments that the judge did not adequately take precautions to ensure that Simpson's notoriety and the widespread belief that he should have been convicted in his prior murder trial did not affect the verdict in this later trial.
Tuesday, Nov. 04, 2008
FindLaw guest columnist and Loyola Los Angeles law professor Richard L. Hasen predicts how the lessons of this election may affect the rules of the game in 2012. In particular, Hasen makes three predictions: First, we'll see fewer primaries and more caucuses, at least for the Democratic party, due to problems with Democratic caucuses in 2008. Second, there will be more outside money -- due to likely clarification from the FEC as to what election activities are proper for 527 organizations, and likely rulings from conservative courts, including the Roberts Court, striking down on First Amendment grounds limits on election spending by groups, including PACs. Third, and finally, Hasen projects that there will be reforms to election administration -- addressing problems such as the recurring issue of mismatches between DMV and voting records.
Tuesday, Nov. 04, 2008
FindLaw columnist and human rights attorney Joanne Mariner makes recommendations as to needed reforms that should appear on the next president's human rights agenda, drawing upon her own and others' work at Human Rights Watch. She focuses in particular on three areas: First is counterterrorism policy, such as policy with respect to detainees, which Mariner argues should be transformed to respect detainees' rights, with a truth commission convened to investigate past abuses. Second is the U.S.'s relations with other governments; she contends that the U.S. must hold its allies, not just its enemies, accountable for their human rights violations. Third is U.S. exceptionalism; Mariner contends that the U.S. cannot continue to claim to honor human rights while also opting not to sign important human rights treaties, and refusing to recognize International Criminal Court jurisdiction over Americans.
Monday, Nov. 03, 2008
FindLaw columnist and former counsel to the president John Dean draws on his own prior work and that of social scientist Robert Altemeyer to argue that Republican candidates John McCain and Sarah Palin possess strongly authoritarian personality traits that will cause them, if elected, to disserve the nation's best interests. Dean also contends that, because President Bush and Senator McCain share many of the same authoritarian traits, a McCain Administration would not importantly depart from the outlook and approach of the Bush Administration.
Friday, Oct. 31, 2008
FindLaw columnist and Cardozo law professor Marci Hamilton comments on a controversial issue: When religious organizations receive government funds to support their social-service programs, can they staff those programs with only their co-religionists, or must they hire staffers without regard to religious belief? Hamilton explains how each presidential candidate can be expected to address this issue if elected. She also describes the Bush Administration's position on the issue -- relying on a memorandum on this topic from the Department of Justice's Office of Justice Programs that was written in 2007 but released only recently, and that invokes the Religious Freedom Restoration Act (RFRA).
Thursday, Oct. 30, 2008
FindLaw columnist and Cornell law professor Sherry Colb discusses a legal issue the Fourth Circuit will soon decide: whether a Virginia statute violates the Constitution when it prohibits intact dilation and evacuation ("D&X") abortion. After describing the current state of Supreme Court precedent on abortion, Colb also analyzes a philosophical issue that underlies the doctrine: Is there a moral difference between a procedure in which a doctor kills a non-viable fetus inside the womb, and one in which a doctor kills a non-viable fetus outside the womb?
Wednesday, Oct. 29, 2008
FindLaw columnist, Vanderbilt visiting law professor, and Hofstra law professor Joanna Grossman considers, on the thirtieth anniversary of the Pregnancy Discrimination Act, how much progress has been made -- and still has yet to be made -- in ensuring workplace equality for pregnant women. Grossman explains the legal developments that have brought us to our current situation, and argues that a final step urgently needs to be taken: Pregnant women should be protected from workplace discrimination not only when they are functioning just as they would if they were not pregnant, but also when pregnancy leads to temporary disability. Grossman notes that this type of protection is especially important for women who work in non-traditional jobs that are especially strenuous or hazardous.
Tuesday, Oct. 28, 2008
FindLaw guest columnist, Loyola Los Angeles law professor, and Election Law Blog creator Richard Hasen describes the state of campaign financing in the current presidential election, and considers what it says about our campaign finance laws and possible reforms to them. Hasen concludes that one's views on whether reform is needed will likely turn on one's concept of equality: Should candidates receive equal funding so they have an equal chance to reach the public and neither's message risks being drowned out? Or should the funding candidates receive be in proportion to their support among the population? Put another way, do candidates deserve an equal voice, or a voice equal to their ability to command voter support?
Tuesday, Oct. 28, 2008
FindLaw columnist, attorney, and author Julie Hilden discusses a recent ruling by a federal judge holding that New York City's Board of Education can, consistent with the First Amendment, ban public-school teachers from wearing partisan political buttons. Hilden argues that the ruling was wrong -- but in part because a Supreme Court decision on which it relied was misguided. She also contends that a simple disclaimer could have addressed one of the judge's main concerns: the possible confusion by students of the teacher's point of view with that of the Board of Education or the school as an institution.
Monday, Oct. 27, 2008
FindLaw columnist, attorney, and author Edward Lazarus argues that regardless of which candidate is elected president this November, the attorneys who join the new Administration will have to cope with serious moral hazards -- hazards that led their many of their predecessors to betray the idealism that led them to Washington in the first place. Lazarus relies on examples ranging from the Starr Report, to the notorious "torture memos," to the circumvention of Congress to conduct warrantless domestic surveillance, to the firings of a series of U.S. Attorneys based on politics, not performance. He cautions the attorneys who will arrive in Washington after the election not to assume that initial good intentions will make them immune to similar pitfalls.
Friday, Oct. 24, 2008
FindLaw columnist and U.C., Davis, law professor Vikram Amar discusses a constitutional clash that is likely to arise if John McCain is elected president. As Amar explains, Arizona Governor Janet Napolitano, a Democrat, would likely seek to appoint a Democrat to temporarily fill McCain's Senate seat and thus become a quasi-incumbent in the subsequent election for a permanent successor to McCain. However, a dispute would likely ensue because an Arizona statute says the state's governor must appoint a same-party successor, but that statute may well clash with the Seventeenth Amendment.
Thursday, Oct. 23, 2008
FindLaw columnist and Cardozo law professor Anthony Sebok comments on an interesting and potentially very significant decision by Judge Jack Weinstein of the U.S. District Court for the Eastern District of New York. The case involved a man whose legs were paralyzed in the horrific 2003 Staten Island ferry crash. Judge Weinstein held that the City of New York could not argue, based on actuarial tables, that the man's expected lifespan would be shorter because he was black and blacks statistically have shorter lifespans than whites. Sebok analyzes and critiques the three arguments Weinstein made to support his ruling. He also discusses whether the ruling's principles might also apply to differences in expected future earnings based on race, and differences in either expected future earnings or expected lifespan based on gender.
Wednesday, Oct. 22, 2008
FindLaw columnist and U. Washington law professor Anita Ramasastry discusses a recent Washington lawsuit in which two plaintiffs, who seek to head a class action of similarly-situated persons, claim that Qwest, their provider of high-speed Internet service, charged them an illegally high early termination fees. As Ramasastry explains, the plaintiffs argue both that they did not terminate early because their contracts were month-to-month, and that, in any event, the fee charged by Qwest was an illegal "penalty" that far exceeded the damages the company truly suffered from early termination. Ramasastry notes that the termination fee/penalty issue has also arisen in similar cases regarding fees attached to the termination of cellphone contracts.
Wednesday, Oct. 22, 2008
FindLaw columnist and Cornell law professor Michael Dorf explains and analyzes the Supreme Court's recent opinion resolving a voting controversy in a key swing state, Ohio. As Dorf explains, the practical effect of the Court's decision was to eliminate a risk that thousands of newly-registered Ohio voters would be purged from the rolls. Because those voters are predominantly Democrats, the decision's effect was therefore to favor Obama. Dorf praises the Court's conservative Justices for staying consistent with their prior decisions, rather than departing from them to favor McCain. At the same time, he points out that only after Bush v. Gore is this kind of nonpartisan hewing to precedent in a close election seen as cause for celebration, rather than par for the course.
Tuesday, Oct. 21, 2008
FindLaw guest columnist, Loyola Los Angeles law professor, and Election Law Blog creator Richard Hasen explains the nature and impact of post-Bush v. Gore election law developments -- including a federal statute and the recent boom in election litigation. Hasen argues that these developments have in some ways improved, and in some ways worsened, the situation with respect to voting in America. However, he contends that the overall situation -- which has inspired very low voter confidence -- remains bad enough that an "election bailout" is warranted.
Monday, Oct. 20, 2008
FindLaw columnist and former counsel to the president John Dean discusses historian Mary Hershberger's recent piece on Truthdig.com -- in which Hershberger questioned some of the claims made by John McCain about his war record. Dean also includes his Q&A with Hershberger about her piece and the research that underlies it. Dean argues that the mainstream media has been wrong to refrain from closely examining McCain's claims about his war record for fear of being accused of "Swift Boating" McCain, and praises Hershberger for looking into the factual basis for a series of past events that has served as the centerpiece of McCain's campaign.
Friday, Oct. 17, 2008
FindLaw columnist and Cardozo law professor Marci Hamilton contends that presidential candidate John McCain once might have fit the Framers' key criterion for virtuous service in public office -- the ability to put one's own interests aside for the greater good -- but that is no longer the case. Hamilton contends that McCain once showed the ability to keep higher ideals in mind -- by, for example, fighting corruption in the Senate by insisting upon ethics rules and opposing earmarks. However, she argues that, since McCain selected Alaska Governor Sarah Palin as his running mate, he has been conducting the kind of win-at-all-costs campaign that betrays his past record.
Thursday, Oct. 16, 2008
FindLaw guest columnist and attorney Jesselyn Radack discusses the recent report issued by the Justice Department's Office of the Inspector General and Office of Professional Responsibility regarding the controversial firings of a series of nine U.S. Attorneys. Attorney General Michael Mukasey has appointed a special prosecutor to look into possible criminal charges arising from the disturbing conduct detailed in the report. However, Radack asks why the Department has not also referred the attorneys involved to the bars of which they are members, to face disciplinary proceedings. In support of her point, she adduces evidence that comes directly from the Report, and connects it to specific ethics rules. The question of why no referrals have been made has special resonance for Radack herself -- as she was the subject of such referrals when she raised ethics issues with respect to the interrogation of John Walker Lindh.
Thursday, Oct. 16, 2008
FindLaw columnist, attorney, and author Julie Hilden considers the First Amendment questions that are raised if states ban the wearing of partisan T-shirts and similar paraphernalia at voting sites. Currently, several states ban partisan gear on the ground that it constitutes "passive electioneering," while others permit it. Are states with a ban violating the First Amendment? Hilden suggests that the answer is yes, contending that the First Amendment harm to those who are forced to put away their gear or forfeit their right to vote is serious, while the harm to those who see fellow voters wearing partisan material is minimal.
Wednesday, Oct. 15, 2008
FindLaw columnist, Hofstra law professor, and visiting Vanderbilt law professor Joanna Grossman discusses the Connecticut Supreme Court's recent decision rejecting the state's ban on same-sex marriage. Grossman analyzes the court's reasoning, and explains the division over whether granting the right to enter into civil unions to gay couples means they need not also be afforded marriage rights. She also puts the Connecticut decision in the context of same-sex marriage and civil union developments across the country.
Tuesday, Oct. 14, 2008
FindLaw columnist and Cornell law professor Sherry Colb discusses a fascinating upcoming Supreme Court case about the Fourth Amendment. As Colb explains, prior Supreme Court cases have established that a police officer may -- without probable cause -- lawfully pretend to be your friend (or recruit an informant to do so) in an effort to gather information about you. Now, the Court must answer another question: If you invite your "pretend friend" to your home, and your "friend" uncovers illegal activity there, have you in effective consented to a warrantless police search of the premises? Colb contends that the answer should be no, for the "consent once removed" doctrine wrongly piles fiction upon fiction to find consent where there was none.
Monday, Oct. 13, 2008
FindLaw columnist, attorney, and author Edward Lazarus comments on how this year's upheavals may affect the role of the Supreme Court. WIth no real blockbuster cases coming up, Lazarus predicts that this may be a quiet Term for the Court, during which its work may be overshadowed by America's economic woes. Yet if the economic crisis is truly as severe as it seems, the Court might eventually face a "constitutional moment" in which it must rework constitutional doctrine to address practical necessity and changing times.
Friday, Oct. 10, 2008
FindLaw guest columnist and attorney Steve Sanders contends that legal conservatives, including Justice Antonin Scalia, indulge in serious hypocrisy when they both decry the Supreme Court's citation to sources of foreign law and, at the same time, themselves frequently cite to work of the British legal giant Blackstone. Though conservatives may counter that Blackstone's thought is especially relevant because he influenced the Constitution's Framers, Sanders responds that this points actually cuts in favor of allowing modern courts to follow the Framers' example by similarly citing to, and being influenced by, their own modern foreign contemporaries.
Friday, Oct. 10, 2008
FindLaw columnist and U.C., Davis, law professor Vikram Amar discusses Governor Sarah Palin's claim, during the recent vice-presidential debate, that the Vice President has the flexibility to play a larger role in the legislative branch than just breaking ties in Senate voting. Amar analyzes the relevant constitutional history and text and concludes that Palin is wrong; this evidence suggests that the vice-president's proper role lies in the Executive Branch alone.
Thursday, Oct. 09, 2008
FindLaw guest columnist and U. Richmond law professor Carl Tobias reflects on the significance of the public school desegregation case Cooper v. Aaron now, fifty years after the Supreme Court issued its decision. Tobias explains why Cooper -- though far less famous than Brown v. Board of Education -- was similarly momentous in the Court's history, in that it signaled that the Court would not tolerate the ongoing efforts to evade Brown. He also discusses the broader meaning of Cooper: that the law, if actively enforced, can truly promote social justice and change.
Thursday, Oct. 09, 2008
FindLaw columnist and human rights attorney Joanne Mariner discusses a recent hearing at which, for the first time ever, a federal judge ordered the release, on parole, of detainees who had been held at Guantanamo. The detainees -- seventeen Muslim Uighurs who had been cleared by the Bush Administration for release in 2004 -- had previously been stuck in a kind of limbo: They could not be returned to their native China due to credible fears they would face incarceration and torture, and yet the Bush Administration would not agree to bring them to the U.S. Mariner argues that the district judge's ruling was correct and well-reasoned, but notes that the government has filed an emergency appeal seeking reversal.
Wednesday, Oct. 08, 2008
In the second of a two-part series of columns, FindLaw columnist and Cardozo law professor Anthony Sebok and FindLaw guest columnist and Fordham law professor Benjamin Zipursky continue their discussion of Wyeth v. Levine, a tort case the Supreme Court will tackle this Term. In this column, Sebok and Zipursky consider whether the Supreme Court should rule that, in this case, federal law regarding pharmaceutical warnings preempted Vermont tort law on the same topic -- a ruling that would require the reversal of the large jury verdict in the plaintiff's favor. Sebok and Zipursky also explain how the controversy over the insufficient federal warnings on the now-withdrawn drug Vioxx fits into this picture.
Tuesday, Oct. 07, 2008
FindLaw columnist and Cornell law professor Michael Dorf discusses a recent, controversial movement under which a number of pastors have chosen to violate a longstanding federal law, the Johnson Amendment. The Amendment states that churches and other nonprofits cannot both claim a tax exemption, and also endorse political candidates. Dorf considers and rejects various arguments suggesting that the Amendment is unconstitutional -- as a violation of the right to freedom of speech and/or free exercise of religion, or as clashing with the Establishment Clause by entangling the state in church affairs. He concludes that none of these constitutional arguments is valid under existing Supreme Court precedent -- and notes, too, that the sides conservatives and liberals are, respectively, taking in the debate over the amendment seem anomalous in light of their other beliefs.
Monday, Oct. 06, 2008
FindLaw columnist and U. Washington law professor Anita Ramasastry discusses a Northern California federal district judge's recent ruling that held that, due to education privacy laws, students at the University of California at Santa Cruz and their parents were entitled to receive notice before the university turned over information pertinent to the students' alleged illegal file-sharing to the Recording Industry Association of America. Ramasastry praises the decision for honoring students' rights, and places it in the context of other recent court decisions that grapple with the issue of what rights students may have when accused of infringing copyrights through file-sharing -- including in situations where multiple students have access to the same computer.
Monday, Oct. 06, 2008
FindLaw columnist and former counsel to the president John Dean delves into history to consider the role and significance of presidential and vice presidential debates, in order to assess the likely impact of the Biden/Palin debate. Dean explains why, despite the famous example of the Nixon/Kennedy debate (in which Kennedy profited greatly from being telegenic), the lion's share of presidential election contests are relatively unaffected by the prior presidential and vice-presidential debates. The debates, in other words, are not game-changing, Dean explains -- though they do leave undecided voters, who are usually low-information voters, significantly better informed. Dean predicts that Sarah Palin's performance in the vice-presidential debate will follow the general trend, so that she is castigated by foes and lauded by supporters, regardless of the quality of her responses.
Friday, Oct. 03, 2008
FindLaw columnist and Cardozo law professor Marci Hamilton offers an interesting point of view on the financial crisis, from her position as a constitutional scholar. Hamilton notes that the Framers of the Constitution equipped the President -- not Congress -- to be able to act quickly and univocally in this kind of emergency; Congress was meant to be relatively slow and deliberative in comparison. She thus faults President Bush for not taking decisive action. Hamilton also faults Speaker Pelosi and members of Congress for indulging their self-interest -- another fear of the Framers' -- by devoting significant time and focus to placing blame on others, rather than addressing the problem. However, Hamilton expresses the hope that the current Congressional deliberations will serve one of the Framers' key goals, by allowing the people to be heard and preventing interest groups from dominating.
Thursday, Oct. 02, 2008
FindLaw guest columnist and Cato Institute chairman Robert Levy explains why, in light of the hot-button issues that federal courts will likely address over the next four years, judicial nominations are vitally important. Levy argues that presidents George W. Bush and Bill Clinton were each able to reshape the federal judiciary and, because federal judges have a momentous impact on law and society, voters need to know what they can expect from Barack Obama and John McCain.
Thursday, Oct. 02, 2008
FindLaw columnist and Cornell law professor Sherry Colb argues that -- contrary to recent claims -- it might actually be rational for a person to oppose the proposed government economic bailout even if he or she will predictably benefit from the bailout's boost to the economy, and predictably suffer if no bailout occurs. Are those who fit this description simply "cutting off their noses to spite their faces" and acting illogically against their own best interests? Colb explains that the answer isn't as simple as it may seem. She notes that some might count the ability to inflict retribution as itself a benefit, and draws analogies to examples in law enforcement and anti-discrimination law where we rationally accept a loss to innocent persons, or to society as a whole, in order to punish undesirable behavior.
Wednesday, Oct. 01, 2008
FindLaw columnist, Hofstra law professor, and Vanderbilt visiting law professor Joanna Grossman discusses an interesting and significant recent decision concerning a male-to-female transsexual who suffered employment discrimination. As Grossman explains, the law's protection of transsexuals' rights is complicated, for federal law does not directly protect them. Thus, transsexuals must sue under laws against gender discrimination, invoking the landmark Price Waterhouse Supreme Court decision, which holds that one kind of gender discrimination is gender stereotyping. In the case on which Grossman focuses, a transsexual successfully used this approach to argue that she had been illegally denied a job as a terrorism specialist with the Congressional Research Service at the Library of Congress.
Tuesday, Sept. 30, 2008
FindLaw columnist, attorney, and author Julie Hilden discusses the question whether election coverage -- especially The Drudge Report's -- is satisfying the Supreme Court's ideal of providing a well-functioning "marketplace of ideas." Hilden contends that while The Drudge Report has often shown its subjectivity, other media entities may be equally to blame for hiding theirs. She argues that more of the media should follow Drudge in making it apparent when they are flagging certain stories for special attention, and that both Drudge and other media entities should consider including metadata on their websites or broadcast screens tracking their choices, over time, regarding which stories and candidates to feature more heavily.
Monday, Sept. 29, 2008
FindLaw columnist Vikram Amar and FindLaw guest columnist Alan Brownstein, both U.C., Davis, law professors, discuss recent, proposed Department of Health and Human Services (HHS) regulations that are intended to protect healthcare workers from being compelled by their employers or by the law to violate their religious beliefs. Amar and Brownstein contrast the HHS regulations with federal "charitable choice" programs that allow entities receiving federal money to hire their co-religionists to perform social-service duties. Amar and Brownstein compare the justifications for the proposed HHS regulations with those for the federal "charitable choice" rules.
Friday, Sept. 26, 2008
FindLaw columnist, attorney, and author Edward Lazarus explains why John McCain's plan, if elected, to fire the Chair of the SEC won't work unless the Supreme Court changes its mind about well-established limitations on the Executive Branch's power over independent agencies. Lazarus notes, however, that at least three current Justices (Scalia, Thomas and Alito) and possibly one more (Roberts) would likely support McCain's position that under the "unitary executive" theory, the President must be able to fire, as well as appoint, all agency heads. Accordingly, if Court vacancies occurred in a McCain Administration, McCain might well be able to persuade the Court to reverse its own longstanding precedent and adopt his view.
Thursday, Sept. 25, 2008
FindLaw guest columnist and Yale law student Lauren Gerber comments on the results and potential effect of the list recently compiled by Yale
Law Women (YLW) of the top ten family-friendly law firms. As Gerber explains, the list is the result of YLW's survey of the Vault Top 100 law firms, and many of the firms that did not make the list spoke to YLW regarding ideas and suggestions as to how they can improve. Despite that positive sign, however, Gerber notes that many firms have a long way to go when it comes to issues such as retaining women attorneys, increasing their percentages of women partner, making part-time legal work a feasible option, and, more generally, making sure that working at Big Law and having a family are compatible goals for all attorneys.
Thursday, Sept. 25, 2008
With even GOP nominee Sarah Palin asking, "What is it exactly that the V.P. does every day?," FindLaw columnist and Cornell law professor Michael Dorf offers some clear answers -- covering administrations from the Framers' day to the present. As Dorf explains, the common view of the vice president's duties as less than significant was accurate through much of American history. However, beginning with Walter Mondale, vice presidents have played a more substantial role. In particular, Dorf notes, Vice Presidents Gore and Cheney have both occupied formal policymaking positions and acted as "bench coach" to the president, providing advice and a sounding board. Finally, Dorf comments on what it may mean for Palin potentially to step into this more modern vice-presidential role.
Wednesday, Sept. 24, 2008
In Part One of a two-part series of columns, FindLaw columnist and Cardozo law professor Anthony Sebok and FindLaw guest columnist and Fordham law professor Benjamin Zipursky comment on a tort case the Supreme Court will decide during this coming Term. The case involves the doctrine of federal preemption (concerning when federal law overrides state law) and asks the Court to decide whether the FDA has the last word on drug warnings, or whether a State may add additional requirements. Sebok and Zipursky contend that the case has the potential to result in a major ruling curtailing pharmaceutical companies' liability, if the Roberts Court so chooses -- but that it should opt for a narrower approach.
Tuesday, Sept. 23, 2008
FindLaw columnist and human rights attorney Joanne Mariner discusses an upcoming, historic trial -- one that will mark the first time a federal law criminalizing extraterritorial acts of torture is applied. The defendant -- American citizen "Chuckie" Taylor, the son of former Liberian President Charles Taylor -- is accused of having committed horrific human rights abuses when he served as head of Liberia's notorious Anti-Terrorist Unit. Mariner notes that the same law may someday be used to prosecute "war on terror" abuses committed by American citizens (possibly including CIA agents) abroad as well.
Monday, Sept. 22, 2008
FindLaw columnist and former counsel to the president John Dean discusses the ramifications of a recent bombshell news story included in Washington Post reporter Barton Gellman's new book, Angler: The Cheney Vice Presidency. Gellman reports that Vice President Dick Cheney lied to House Majority Leader Richard Armey about the case for going to war in Iraq -- falsely claiming to Armey, in a private meeting, that Iraq was able to miniaturize and thus render portable weapons of mass destruction, including nuclear weapons, and to distribute them through Al Qaeda. According to Gellman, Armey believes that, absent the lie, he would have opposed the war resolution adamantly, and might have stopped the war. Dean explores Cheney's alleged lie from the perspective of how it undermined the separation of powers -- by convincing a highly influential Congressional leader to change his position to that which the Executive wanted him to hold.
Friday, Sept. 19, 2008
FindLaw columnist and Cardozo law professor Marci Hamilton discusses recent developments relating to the Catholic Church clergy child abuse scandal. In Delaware and California, Hamilton notes, civil statutes of limitations have been abolished so that victims can come forward to press their claims. Yet in Los Angeles, Chicago, and Portland, she contends, bishops have not kept victims foremost in mind; instead, they have used aggressive litigation strategies against victims or refused to name known abusers in their dioceses.
Thursday, Sept. 18, 2008
In this exclusive interview, Professor Erwin Chemerinsky, one of the country's most renowned, respected and opinionated constitutional law scholars and Dean of the newly established Donald Bren School of Law at the University of California, Irvine, tackles a gamut of questions on the critical legal maelstroms of today.
Thursday, Sept. 18, 2008
FindLaw columnist, attorney, and author Julie Hilden discusses the controversy regarding Oprah Winfrey's decision not to have vice-presidential candidate Sarah Palin on her show prior to the election. Since Oprah twice had Barack Obama on her show (albeit before he announced he was running), some observers are questioning whether Oprah's decision is fair and evenhanded -- while others say she has a right to invite her own guests and define her own show. Hilden considers the issue of to what extent private entities should provide fairness in political coverage with reference to the now-abolished "fairness doctrine," by which the Federal Communications Commission once strove to make political debate on television fairer by mechanisms such as a right of reply.
Wednesday, Sept. 17, 2008
FindLaw guest columnist and University of Richmond law professor Carl Tobias explains the current situation with respect to the staffing of the federal judiciary -- at both the appellate and district court levels -- and contends that the Senate should make it a priority to address this situation. Tobias faults the Bush Administration for being slow in submitting nominations, but argues that it is still reasonable for the public to expect the Senate to confirm consensus nominees -- such as those who meet with the approval of both their state's Republican and Democratic Senators -- before it adjourns.
Wednesday, Sept. 17, 2008
FindLaw guest columnist, attorney, and television legal commentator Jonna Spilbor considers whether some states' "Romeo and Juliet" exceptions to their statutory rape laws may be too narrow, in light of the realities of teen pregnancy. As Spilbor explains, variance in state laws on this subject leads to anomalous situations; for instance, Bristol Palin and Levi Johnston probably fall into a "Romeo and Juliet" exception, but Jamie Lynn Spears and Casey Aldridge may not. Spilbor also notes that, while these celebrity teens will never be prosecuted for their consensual sex acts, one ordinary teen -- Genarlow Wilson -- was prosecuted, served several years in prison, and was only freed by the intervention of the Georgia Supreme Court. Spilbor calls for statutory rape laws that match modern realities, and a legal approach that worries more about unwanted teen pregnancy, than about teen sex alone.
Tuesday, Sept. 16, 2008
FindLaw columnist and Cornell law professor Sherry Colb offers an interesting and original perspective on the much-talked-about details of GOP vice-presidential candidate Sarah Palin's most recent pregnancy. Palin, who is pro-life, decided to have amniocentesis despite the fact that the procedure poses a significant though small risk of inducing an abortion. Surely, Palin did not believe that by choosing to incur this risk, she consented to an abortion -- which would have gone against her pro-life stance. However, Colb points out that many in the pro-life movement equate risk with consent in another context: that of women's choice to have sex and thus risk pregnancy. Colb considers when and why taking a particular risk is (or is not) deemed to count as consent in a number of legal contexts, ranging from abortion law to tort law to criminal law.
Monday, Sept. 15, 2008
FindLaw columnist Vikram Amar and FindLaw guest columnist Alan Brownstein, both U.C., Davis, law professors, discuss the tricky question of how the law should respond when a doctor or other healthcare provider refuses to perform a procedure on a patient or group of patients, and the provider cites his or her religious beliefs as the reason he refuses. In a two-part series of columns, Amar and Brownstein will discuss two contexts in which this question is raised. Here, in Part One, they analyze a recent California Supreme Court case that raises the issue of whether a healthcare provider may cite religious beliefs as grounds for refusing to perform a procedure on a patient who is a lesbian and who is seeking fertility treatment.
Friday, Sept. 12, 2008
FindLaw columnist and U. Washington law professor Anita Ramasastry discusses a recent, 2-1 decision by a panel of the U.S. Court of Appeals for the Ninth Circuit, holding that federal district courts may review the government's decisions regarding whom to put on the "no fly" list. As Ramasastry explains, previously those who were erroneously placed on the "no fly" list had seemed to have no recourse -- except from the Transportation Security Administration, which administers the list and has been shown to have made over 30,000 mistakes in including people's names on it. Ramasastry praises the panel's decision for allowing travelers to clear their names by going before a judge and jury to show that they do not belong on the list.
Thursday, Sept. 11, 2008
FindLaw columnist and Cornell law professor Michael Dorf discusses a recent, interesting Iowa Supreme Court decision reversing a conviction for indecent exposure. The court held that the following fact situation did not fit the statute's language: A partially-nude man masturbated outside two women's bedroom windows and yelled profanities. The women never saw his nudity, but the police officer who chased and arrested him did. Dorf explains how this case illustrates a perennial conflict within statutory interpretation: Textualists focus on a statute's language, whereas purposivists look to the legislature's likely intent. Here, the statute's language seemed a poor fit with the situation, but it seemed clear that the legislature would have wanted to reach the conduct at issue. Thus, a difference in interpretive philosophy divided the Iowa court.
Wednesday, Sept. 10, 2008
FindLaw columnist and Cardozo law professor Anthony Sebok praises a new Ohio statute that supersedes a prior state Supreme Court decision that had rejected non-recourse funding for litigation. As Sebok explains, such funding allows a plaintiff to receive an advance on his expected recovery in a lawsuit, in exchange for giving up his right to the amount of the eventual settlement or jury verdict; the plaintiff keeps the advance even if the verdict is zero. Sebok contends that the concerns about such funding that led the Ohio Supreme Court to reject it were exaggerated, and argues that Ohio should expand its new law to allow non-recourse funding to be used outside the torts context as well.
Tuesday, Sept. 09, 2008
FindLaw columnist and human rights attorney Joanne Mariner discusses the case of neuroscientist Aafia Siddiqui, a terrorism suspect who, according to her attorneys, has been a victim of torture. In early 2003, Siddiqui disappeared from her native country, Pakistan, while traveling with her three young children. Her attorneys believe she was kept in Pakistani or U.S. custody until July 2008, when she was revealed to be in U.S. custody in Afghanistan, although the U.S. denies the prior detention. Mariner explains why there is strong reason to doubt the U.S.'s claims as to how Siddiqui and her son came to be in U.S. custody in Afghanistan. In addition, Mariner urges that the federal court now hearing Siddiqui's claims of illegal detention and torture should carefully investigate them, for they are relevant to both her mental state and the integrity of the court's jurisdiction. Mariner also notes that the whereabouts of two of Siddiqui's children, now five and ten years old are unknown, and that her eleven-year-old son, Ahmed, was held -- contrary to international humanitarian law -- by the Afghan intelligence agency, famous for its brutal treatment of those it detains.
Monday, Sept. 08, 2008
FindLaw columnist and former counsel to the president John Dean argues that the Constitution implies that Vice Presidents -- and thus, candidates for that office -- must have qualifications and experience greater than that of Alaska Governor and GOP vice-presidential candidate Sarah Palin. Drawing on the text and history of the Constitution and related succession statutes, Dean contends that no Congress would have confirmed Palin had she been nominated by a sitting president to fill a vacancy in the office of Vice President. He contends that from this premise, it follows that Palin also should not have been chosen by John McCain to run for the office this November.
Friday, Sept. 05, 2008
FindLaw columnist and Cardozo law professor Marci Hamilton analyzes John McCain's choice of Alaska Governor Sarah Palin as his running mate, in terms of what that choice says about McCain himself. Hamilton contends that the choice of Palin -- as opposed to, for instance, Joe Lieberman or Tom Ridge -- means that McCain has sacrificed his maverick nature in order to move decisively rightward. In particular, Hamilton sees the Palin pick as a sign that McCain will continue Bush policies that threaten the Constitution's church/state line. She also contends that by choosing Palin, McCain gave up the chance he might have had to woo moderates after Barack Obama picked Joe Biden as his running mate.
Thursday, Sept. 04, 2008
FindLaw columnist and Cornell law professor Sherry Colb draws upon Supreme Court precedent, including modern cases interpreting the right to privacy, in her analysis of when politicians' sexual conduct should, and should not, be deemed relevant by voters. For example, while Court precedent may arguably imply that adultery cannot constitutionally be criminalized, Colb notes that it still may be relevant to voters because, whether or not it is criminal, it still constitutes wrongdoing with respect to the betrayed spouse. In contrast, Colb notes, Court precedent suggesting that a consensual homosexual relationship cannot constitutionally be criminalized may have a different import: If the Court considers such conduct private, shouldn't voters, too? Colb also contends that attacks based on candidates' adultery may be more fairly lodged against a candidate such as John McCain -- who has a permissive view of the Establishment Clause, allowing some mixing of religion into public life, and often invokes religion in campaign speeches -- than against a candidate who takes a more strongly secular stance.
Wednesday, Sept. 03, 2008
FindLaw columnist, Hofstra law professor, and visiting Vanderbilt law professor Joanna Grossman discusses an important recent California Supreme Court decision that held that, under California law, a doctor or medical practice that generally offers intra-uterine insemination (IUI) to women seeking to become pregnant cannot deny IUI to lesbians on the basis of claimed religious objections. Grossman explains the relevant California law in this area, and how it differs from federal law and the law of other states.
Tuesday, Sept. 02, 2008
FindLaw columnist and U. Washington law professor Anita Ramasastry discusses an interesting case in which a Michigan woman linked to her city's police department's website, but then received a "cease and desist" order from the city attorney commanding her to de-post the link. The woman filed suit, claiming the order violated her First Amendment rights, and Ramasastry argues that she is correct to deem the order illegal. Ramasastry also covers the range of cases in which links can, and cannot, successfully be challenged -- considering possible ways in which links might violate the law pertaining to copyright, business torts, defamation, criminal threats, and the Digital Millennium Copyright Act (DMCA). Ramasastry also covers the unique problems posed by "deep linking" -- that is, linking to a page other than the homepage of a given site.
Tuesday, Sept. 02, 2008
FindLaw columnist and U.C., Davis, law professor Vikram Amar discusses an upcoming Supreme Court Fourth Amendment case that calls into question whether the exclusionary rule should be applied in a case in which police made an arrest, and carried out searches incident to it, based on their good faith and reasonable -- but also erroneous -- belief that there was an outstanding warrant for the defendant. As Amar explains, the case also calls into question the rule of stare decisis -- which counsels that the Court should follow its own precedents: One strong reason for stare decisis is reliance on prior law, and it is unlikely criminals rely on the Court's exclusionary rule holdings before deciding whether to commit a crime.
Friday, Aug. 29, 2008
FindLaw columnist, attorney and author Edward Lazarus contends that -- despite a few prominent examples of Supreme Court Justices whose votes and opinions surprised and disappointed the presidents who nominated them -- in general, the vetting of Justices and judges for ideology is typically very effective. Lazarus points out that among the Justices who typically serve as counterexamples, some were not vetted for ideology, but were chosen for other reasons. He also points to a recent New York Times study of immigration judges selected for their politics as evidence that when presidents and their staffs do take ideology into account, the judges they choose tend to be just as conservative or liberal as predicted.
Thursday, Aug. 28, 2008
FindLaw columnist and Cornell law professor Michael Dorf takes an interesting perspective on Vice Presidential candidate Joe Biden's record -- focusing not on Biden's temperament or foreign policy experience, but rather on Biden's service on the Senate Judiciary Committee and his views on judicial confirmation and other law-related issues. As Chair of the Committee, Biden presided over the Bork and Thomas confirmation hearings; Dorf considers how those experiences might influence his views. Dorf also examines Biden's beliefs regarding the proper role of Congress -- including Biden's view that Congress, not just the Supreme Court, may play a legitimate role in defining the contours of certain constitutional rights; and Biden's opposition to unilateral Presidential action regarding "war on terror"
issues.
Wednesday, Aug. 27, 2008
FindLaw columnist and Cardozo law professor Anthony Sebok discusses the proposal that the United States should move to a civil litigation system under which the loser pays the winner's expenses -- a system that is commonplace in many other countries. Sebok describes the phenomenon of negative-value suits, the total costs of which greatly exceed the amount at stake, and the arguments as to whether our system should strongly discourage such suits with rules such as "loser pays." Drawing upon a recent online panel discussion in which he participated, Sebok contends that the lack of empirical evidence is a major factor preventing those who oppose and support tort reform, respectively, from reaching any consensus on the merits of a possible move to a "loser pays" system.
Tuesday, Aug. 26, 2008
FindLaw columnist and human rights attorney Joanne Mariner discusses a UK proceeding, scheduled for this week, that may reveal hitherto unknown facts about the treatment of U.S. detainee Binyam Mohamed, and about U.S. interrogation procedures more generally. Mohamed says that, while in secret CIA detention, he endured torture that caused him later, while in military detention, to give false evidence that will be used against him when he faces potential terrorism-related charges before a military commission at Guantanamo. Last week, the UK High Court ruled that the British government, due to the UK's involvement in Mohamed's detention, was under a legal obligation to disclose to Mohamed's defense counsel the information it possesses relating to Mohamed's whereabouts, treatment, and interrogation, since this information may be important to his defense. However, the High Court stopped short of ordering such disclosure, in order to take more time to consider the national security implications of the case. This week, the High Court will once again address Mohamed's case, and may well direct the government to hand over the evidence, unless the UK foreign secretary quickly intervenes.
Monday, Aug. 25, 2008
FindLaw columnist and former counsel to the president John Dean comments on whether Barack Obama could successfully sue Jerome Corsi based on statements made in Corsi's book attacking Obama, "Obama Nation." Focusing on fifty damaging statements that the Obama campaign has persuasively rebutted as false, Dean explains why, under American defamation law, these statements probably could not form the basis of a successful defamation suit against Corsi. In contrast, Dean contends, John Kerry could and should have sued Corsi based on Corsi's prior book repeating "Swift Boat" allegations against Kerry. Dean also suggests that, when the law provides no recourse against damaging falsities like those in "Obama Nation," it may be time to modify the law.
Friday, Aug. 22, 2008
FindLaw columnist and Cardozo law professor Marci Hamilton discusses a recent Ninth Circuit en banc decision, ruling against Navajo tribes that claimed a right to halt the creation of artificial snow for ski slopes on federally-owned land, on the ground that the snow was interfering with the exercise of their religion. Hamilton contends that, while the dissent's view is a sympathetic one, the majority was correct in ruling against the tribes, in light of Supreme Court precedent in this area. She also argues that the Religious Freedom Restoration Act, which the tribes invoked, should not apply in the context of federal lands.
Thursday, Aug. 21, 2008
FindLaw columnist and human rights attorney Joanne Mariner discusses the 19 military-commission trials that will now follow on the heels of
the recent trial of Salim Hamdan. As Mariner explains, the upcoming 19 trials will present allegations much more serious than those that had been made about Hamdan and another detainee who had been scheduled for a military-commission trial, but pled guilty. In particular, the seven trials in which the government will seek the death penalty concern men alleged to have been major figures in terrorist activities, including 9/11 and earlier bombings targeting U.S. personnel. Mariner describes a number of flaws in the Hamdan trial that could undermine both the appearance and the reality of justice, if they are repeated in these and other high-stakes, upcoming military-commission trials as well.
Wednesday, Aug. 20, 2008
FindLaw columnist and Hofstra law professor Joanna Grossman discusses an interesting recent decision by the U.S. Court of Appeals for the Seventh Circuit, interpreting the Pregnancy Discrimination Act (PDA). In the case, a female employee was fired after she had taken two leaves to complete in vitro fertilization treatment (IVF) -- which commonly requires time off from work for women who undergo it. Grossman explains why the Seventh Circuit held that to fire an employee due to IVF-related absenteeism violates the PDA, despite the fact that infertility, unlike pregnancy, is a condition experienced by men and women alike.
Tuesday, Aug. 19, 2008
FindLaw columnist, attorney, and author Julie Hilden discusses the unusual -- and, she argues, disturbing -- case of Karen Fletcher, who posted her writings regarding child sexual abuse on the Internet, was charged with breaking federal obscenity laws, and now has entered a guilty plea. Fletcher says she is a survivor of abuse, and that the writings were therapeutic for her. Prosecutors, however, expressed fear that abusers might copy the acts Fletcher described. Hilden contends that this rare prosecution for written obscenity, as opposed to obscene images, fits into a general societal trend of bending or
breaking the law in order to reach child abusers. In addition, Hilden argues that -- while the judge and prosecutors made comments suggesting they were proceeding on the theory that Fletcher's writings advocated or constituted a manual for abuse -- this case fell far short of the standard under which speech advocating or describing unlawful conduct can sometimes be suppressed.
Monday, Aug. 18, 2008
Many Americans have a simple understanding about FDIC deposit insurance: You can only deposit $100,000 at a particular bank and count on its being insured. However, as FindLaw columnist and U.C., Davis, law professor Vikram Amar explains, that understanding -- which is causing many Americans to do business at multiple banks to make sure all the money they have saved is insured --- is inaccurate in important respects. Through trust accounts and joint accounts, Amar notes, Americans can insure much more than $100,000 at a single bank; he thus encourages readers to consult and understand the FDIC's complex rules on the subject before deciding where to deposit their savings. Amar also suggests avenues for reforming the FDIC's practices so they can better serve their intended purpose of giving Americans security and the economy stability.
Friday, Aug. 15, 2008
FindLaw columnist, attorney, and author Edward Lazarus criticizes the State of Texas for executing a prisoner who was a Mexican national without reviewing his case in light of the fact that the state had failed to honor his Vienna Convention right to be advised that he could consult with home-country officials after his arrest. Although the U.S. Supreme Court declined to force Texas to comply with an International Court of Justice order directing that it review the prisoner's case, Lazarus argues that Texas should have opted to do so anyway -- just as Oklahoma did in another Vienna Convention case.
Lazarus also argues that Texas's decision to execute the prisoner without further review mirrors a marked Bush Administration tendency to use power to its utmost, even if a more just and fair solution is available.
Thursday, Aug. 14, 2008
FindLaw columnist and Cornell law professor Sherry Colb discusses claims that Senator Barack Obama opposed an Illinois law that would have banned infanticide, and thus that he must be "pro-infanticide."
Colb points out that Obama has supported a federal anti-infanticide law. She also explains that the Illinois law Obama opposed possessed serious flaws that the federal law did not possess -- and that, as a result of its flaws, the Illinois law put abortion rights in serious jeopardy.
Wednesday, Aug. 13, 2008
FindLaw columnist and Cardozo law professor Anthony Sebok discusses a very interesting appeal that the California Supreme Court has opted to hear. The appeal raises the question whether California cities may retain private firms on a contingency-fee basis to sue on their behalf in litigation against the lead paint industry -- as opposed to relying on the services of city attorneys or private firms paid on an hourly basis. Sebok explains the key California Supreme Court precedent in this area, and explains why the court might, and might not, choose to follow that precedent under these circumstances.
Tuesday, Aug. 12, 2008
FindLaw columnist and U. Washington law professor Anita Ramasastry discusses a recent preliminary ruling from a California court holding that a cellphone carrier's contracts with customers are illegal
insofar as they impose early termination fees. As Ramasastry
explains, contracts may included "liquidated damages" clauses providing a realistic estimate of the damages that will follow if one party breaches the contract, but they cannot include illegal "penalties" for breach that are not connected to actual or expected damages. The court found, on the evidence heard so far, that early-termination fees constitute penalties. However, as Ramasastry explains, cellphone carriers have a number of options now, in addition to simply abolishing the fees -- such as seeking federal intervention and prorating the fees based on how early the customer terminates the contract.
Tuesday, Aug. 12, 2008
FindLaw columnist and Cornell law professor Michael Dorf comments on the various options for employing either military detention or criminal punishment in the "war on terror" -- focusing especially on the case of Salim Hamdan. Hamdan, who had served as Osama bin Laden's driver, was recently sentenced to serve sixty-six months in prison as a result. Because Hamdan has already served most of that time as a detainee at Guantanamo, he may soon be eligible for release. But will the government release him? Dorf comments on why it might, or might not.
Monday, Aug. 11, 2008
FindLaw columnist and former counsel to the president John Dean comments on the recent ruling by Judge John D. Bates of the U.S.
District Court for the District of Columbia in the case in which the House of Representatives seeks to enforce subpoenas for testimony and documents from former White House Counsel Harriet Miers and Chief of Staff Jonathan Bolten, in relation to the allegedly politicized firing of a series of U.S. Attorneys. Dean commends Bates for not only ruling in favor of the House, but also adopting the kind of no-nonsense tone in his opinion that sends a clear message. Dean notes, however, that despite the firmness of the opinion, the upcoming election may well end up mooting the pending subpoenas before they can be enforced.
Friday, Aug. 8, 2008
FindLaw columnist and Cardozo law professor Marci Hamilton discusses a recent decision from the U.S. Court of Appeals for the Tenth Circuit, authored by Judge Michael McConnell. The decision held that the State of Colorado cannot give scholarships to Colorado college students generally, yet exclude those students attending a school that is "pervasively sectarian," as defined by the state. Hamilton puts the decision in the context of both related Supreme Court precedent and the evolution of American conservatism, and contends that the related claim that religious institutions are entitled to receive funding whenever secular institutions do is both politically mistaken and legally wrong.
Thursday, Aug. 7, 2008
FindLaw columnist and Cornell law professor Sherry Colb discusses a case in which a plaintiff sued for disability discrimination when she was initially accepted by the Foreign Service, but then rejected when she subsequently was diagnosed with treatable breast cancer. As Colb explains, under the Rehabilitation Act, a condition only qualifies as a covered disability if it substantially limits a major life activity. As a result, this particular plaintiff was able to come under the Act's protection only because she was able to allege that the combination of surgery and medication harmed her sexual life. Colb explains how this seemingly odd result derives from the legal rules regarding who is (and who is not) covered by disability law.
Wednesday, Aug. 6, 2008
FindLaw columnist and Cardozo law professor Anthony Sebok discusses a recent decision by the highest court in Massachusetts, the Supreme Judicial Court (SJC), adopting the "loss of a chance" doctrine. As Sebok explains, the "loss of a chance" doctrine, in this context, means that a plaintiff may recover damages if a doctor's malpractice leads him to lose the chance of surviving cancer, even when it is far from certain he would have survived even had he received the proper diagnosis and treatment. Sebok explains why legal academia embraced the "loss of a chance" doctrine, from both the perspective of deterrence and that of corrective justice, and why the SJC and the highest courts of a number of other states have followed suit.
However, Sebok also points out some troubling inconsistencies in tort law regarding causation and the recovery of damages that still remain after the SJC's decision.
Tuesday, Aug. 5, 2008
FindLaw columnist, attorney, and author Julie Hilden analyzes the decision last month by the U.S Court of Appeals for the Third Circuit to strike down the $550,000 fine the FCC had imposed on CBS for the
2004 Super Bowl broadcast, during which Janet Jackson's breast was
briefly exposed. Hilden explains why the decision -- which turned
on whether CBS had notice of the new FCC "indecency" policy at the relevant time in 2004 -- won't assist today's broadcasters. She also explains why, after the ruling, speech on network television by independent contractors like Jackson and Timberlake may be more free than speech by network employees.
Monday, Aug. 4, 2008
FindLaw columnist Vikram Amar and FindLaw guest columnist Alan Brownstein -- both U.C., Davis, law professors -- discuss one common objection to the Massachusetts and California decisions recognizing same-sex marriage: that their implications may compromise the rights of those whose religious beliefs hold that homosexuality is immoral. For example, some same-sex marriage opponents fear that religious institutions will now have to extend insurance benefits to same-sex couples, as they do to opposite-sex couples. Amar and Brownstein argue, however, that such concerns are best addressed by seeking legislative exemptions, not by opposing same-sex marriage itself. They also contend that there are strong parallels between laws and doctrines protecting people from discrimination based on sexual orientation, and discrimination based on religious belief, respectively -- suggesting that there is common ground to be found here.
Friday, Aug. 1, 2008
FindLaw columnist, attorney, and author Edward Lazarus comments on two apology resolutions recently passed by the House and Senate, respectively -- one apologizing for slavery and Jim Crow, the other apologizing for the treatment of Native Americans. Lazarus points out that both resolutions are arriving very late in the day, and that neither was accompanied by measures to tangibly improve the situation of those who were wronged and/or their descendants. He calls for more concrete measures that would make some progress in repaying the debts and addressing the injuries that these resolutions at least acknowledge.
Thursday, Jul. 31, 2008
FindLaw columnist and attorney Mark H. Allenbaugh discusses how America can better ensure the products it imports are safe. As
Allenbaugh explains, after a series of recalls of defective products from China, including products for children, both the Executive Branch and Congress sought solutions -- through The President's Interagency Working Group on Import Safety, Operation Guardian, and the bipartisan Consumer Product Safety Commission Reform Act, which is expected to soon become law. However, Allenbaugh argues that the only approach that will truly be effective remains untried: ensuring that American companies, through tradeshows or on their own, provide training and followup in China to ensure that the Chinese companies whose goods they import follow procedures that guarantee product safety.
Wednesday, Jul. 30, 2008
FindLaw columnist and Cornell law professor Michael Dorf offers an interesting new perspective on the decision by California to join New York City and a few other jurisdictions in banning the use of trans fats: Dorf contends that the ban illustrates why it has proven impossible to remain true to the Framers' original vision of federalism in our modern, highly-nationalized economy. Dorf tracks the evolution of the Supreme Court's federalism jurisprudence, and explains why a conservative movement on the Court that was once hailed as a "federalism revolution" has, in retrospect, had only a modest effect. He also considers Justice Clarence Thomas's views on federalism, and how they contrast with those of other conservatives on the Court.
Tuesday, Jul. 29, 2008
FindLaw columnist and human rights attorney Joanne Mariner describes the ongoing debate in Britain regarding proposed legislation that would alter the law on detention without charge. Drawing upon a Human Rights Watch report, Mariner explains why both conservatives and liberals have expressed opposition to the U.K.'s proposed new law. In addition, she points out that the proposed law would not only extend the period of detention from 28 days to 42 days, but also, if the power to detain a suspect were repeatedly reauthorized, could lead to a much longer period of "rolling" detention, composed of numerous
42-day periods. Finally, she suggests solutions that could remedy
the serious rights issues the bill raises.
Monday, Jul. 28, 2008
With the House Judiciary Committee holding a hearing today on "Executive Power and Its Constitutional Limitations," FindLaw columnist and former counsel to the president John Dean contends that the Bush Administration's abuses of power are so extreme, they should cause not just Congressional Democrats -- like Dennis Kucinich, who has proposed an impeachment resolution -- but also Republicans to turn against the Administration. Dean draws a parallel to the crimes of President Nixon, explaining why and how Nixon's lying caused even his staunch supporters to change their minds in the end.
Friday, Jul. 25, 2008
FindLaw columnist and visiting Princeton law and public affairs professor Marci Hamilton draws upon written testimony she recently submitted to Congress to present a set of concrete, innovative proposals of ways the federal government can change the law to better protect children from abuse and neglect. Hamilton's proposals range from an alteration of the RICO laws to reach institutions that foster child abuse, to the denial of tax-exempt status to such institutions, to Congress' putting pressure on the states to abolish the statutes of limitations for criminal and civil abuse complaints.
Thursday, Jul. 24, 2008
FindLaw columnist, attorney, and author Julie Hilden comments on how the defamation law landscape is changing as newspapers increasingly find it hard to attract advertising dollars, newsrooms shrink, and major media companies' main presences become their websites. Hilden contends that, as major companies' news sites increasingly compete with smaller sites and even individual bloggers, there will be a gap in defamation exposure: Defamation suits that could yield large verdicts, if the defendant is a media company, will not be worth bringing against shallow-pocketed individuals and sites. As a result,
blogs and smaller sites' coverage will predictably be edgier. Hilden
suggests a way in which major media companies can level the playing
field: use more independent contractors, whose writing will not be directly ascribed to the company for purposes of defamation law.
Wednesday, Jul. 23, 2008
FindLaw guest columnist, attorney, and "Kelly's Court" legal commentator Jonna Spilbor reveals the advantages she enjoyed and the risks she took in recently deciding to found her own solo legal
practice. From her own experience, Spilbor derives five key lessons
for aspiring solo practitioners, covering topics ranging from budgeting, to choosing an office, to tailoring that office to your own needs and preferences, to hiring an assistant, to finding clients, to keeping those clients happy.
Tuesday, Jul. 22, 2008
FindLaw columnist and Cornell law professor Sherry Colb considers the implications of the Great Ape Project (GAP), which observers predict will soon succeed in making protection of the Great Apes the law of Spain. Colb agrees with the GAP that the Great Apes deserve protection, and offers a strong response to the common objection that we should be worrying about human rights, not animal rights. However, she also points out issues regarding the reasons why the Great Apes alone are being protected. For example, should greater intelligence and the capacity to use tools be a reason to protect the Great Apes, but not other nonhuman animals -- despite the fact that they all suffer and feel pain?
Monday, Jul. 21, 2008
FindLaw columnist, attorney, and author Julie Hilden discusses a federal district judge's decision this month to dismiss a defamation suit by former Congressman Gary Condit against veteran journalist Dominick Dunne. The suit was based on comments by Dunne in 2005 on "Larry King Live" suggesting that Condit knows more than he has ever
said about the 2001 murder of D.C. intern Chandra Levy. Hilden
argues that the judge was correct to dismiss the suit on the basis that Dunne's statements were opinion, not fact, and thus were
First-Amendment-protected. However, she contends that Dunne has been
walking a thin First Amendment line in his comments, over the years, regarding Condit and the Levy case.
Friday, Jul. 18, 2008
FindLaw columnist, attorney, and author Edward Lazarus argues that, when one examines the major cases of the past Supreme Court Term, a clear theme emerges: The Court ruled in favor of elite institutions,
and against more populist institutions and groups. By way of
example, Lazarus describes important cases in which the Court ruled in favor of the federal courts, a federal agency, and political party bosses, and ruled against juries and ordinary voters. Lazarus contends that while some of these rulings were correct on the merits, some were not, and that it is definitely worth watching to see if the Court's elitist inclinations continue in the future.
Thursday, Jul. 17, 2008
FindLaw columnist and Cornell law professor Michael Dorf discusses the decision this week by Luis Moreno-Ocampo, the Prosecutor for the International Criminal Court (ICC), to request an arrest warrant for the President of the Sudan, Omar Hassan Ahmad Al Bashir. As Dorf explains, there is little question that Al Bashir has indeed committed the offenses the warrant will describe: genocide, crimes against humanity, and war crimes against much of the civilian population of Darfur. But will the issuance of a warrant improve or worsen the situation? Dorf explains why issuing a warrant for Al Bashir may actually do more harm than good.
Wednesday, Jul. 16, 2008
FindLaw columnist and Hofstra law professor Joanna Grossman discusses the law surrounding the much-maligned multi-billion-dollar trust that hotel magnate Leona Helmsley created for the care and feeding of her dog, Trouble. Grossman explains why a court reduced Trouble's trust, but also why a large share of Helmsley's billions may go to charities devoted to the care and feeding of dogs generally.
Tuesday, Jul. 15, 2008
FindLaw guest columnist and Pepperdine law professor Douglas Kmiec comments on the recent clashes between Congress and the Bush Administration regarding compliance with subpoenas for testimony as to which the Administration has asserted executive privilege. Last week, Karl Rove refused to honor a House subcommittee subpoena for his testimony regarding an inquiry into whether wrongful pressure was brought upon U.S. Attorneys in the prosecution of former Democratic Arkansas governor Don Siegelman. Previously, the testimony of Rove, Harriet Miers, and Joshua Bolten was sought in connection with the related scandal regarding allegations that U.S. Attorneys' firings were politicized. Kmiec discusses the evolution of executive privilege, and contends that it should be using sparingly -- in cases involving genuine national security issues, not issues such as those involved in the U.S. Attorney-related scandals.
Monday, Jul. 14, 2008
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