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February 2007 - Posts
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FindLaw guest columnist and Touro law professor Rodger Citron discusses a significant case in which the Supreme Court held oral argument this week. The case raises an Establishment Clause issue, but as Citron explains, the Court's review will focus on an initial hurdle for the plaintiffs: Can they sue based simply upon the fact that they are taxpayers who say their tax monies are being used unconstitutionally? Citron explains why well-known Seventh Circuit judges Richard Posner and Frank Easterbrook took opposing views of the case, and why this case might offer an ideal opportunity for Chief Justice Roberts to put his minimalist philosophy into practice.
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FindLaw columnist and Rutgers law professor Sherry Colb discusses the possible reasons for the recent percentage increase in the complaints of sexual harassment filed by men with the EEOC. Colb argues that the increase may actually be, in some sense, good news -- insofar as men, whether gay and straight, may be becoming more willing to challenge illegal and discriminatory practices in which male supervisors punish them for seeming "unmasculine." Just as it is illegal for a woman to be punished at work because supervisors feel she should walk, talk, or dress more "femininely," so too, Colb explains, it is illegal for a man to be punished because supervisors feel he does not walk, talk, or dress "masculinely" enough.
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FindLaw columnist and Columbia law professor Michael Dorf discusses a recent decision by a 2-1 majority of a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit. The decision -- which Dorf predicts will ultimately be reviewed by the Supreme Court -- includes two holdings. The first is that a federal statute --the Military Commissions Act of 2006 -- stripped federal courts of the jurisdiction to hear federal lawsuits, including even habeas corpus petitions, by Guantanamo detainees. The second is that the MCA, in this respect, does not violate the U.S. Constitution's Suspension Clause, which governs the circumstances in which habeas corpus can be suspended. Dorf analyzes each holding, and the reason for one judge's dissent, and considers which interpretive rules and sources ought to be relevant here.
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FindLaw columnist and Brooklyn law professor Anthony Sebok explains why what may seem to be a huge Supreme Court victory for Big Tobacco, may not be very momentous, after all. Last week, as Sebok notes, the Court overturned a tremendous punitive damages verdict against Philip Morris -- almost certainly necessitating a new trial in a case brought by the estate of a deceased smoker, alleging fraud by the company. Yet, as Sebok explains, when the jury instructions are revised in a way that reflects the Court's recent opinion, an equally large verdict may well be rendered. Ultimately, Sebok concludes, the true blockbuster punitive damages questions -- whether the Court will impose a strict limi on such damages in personal injury or death cases, as it has in property-damage cases -- has yet to be definitively answered.
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FindLaw columnist and Hofstra law professor Joanna Grossman follows up on her recent column on the legal disputes surrounding Anna Nicole Smith's death, updating readers on what has occurred over the last three weeks. In particular, Grossman covers the emotionally-delivered ruling that decided the custody of Anna Nicole's remains; the legal effect of the will identified as Anna Nicole's; and the ongoing battle regarding the identity of the father of Anna Nicole's infant daughter, Dannielynn. Grossman also answers what may be a multimillion dollar question: With Anna Nicole's will naming only her son Daniel, who is deceased, as heir, and containing a clause expressly excluding other children, does Dannielynn still have a claim to her mother's estate?
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FindLaw columnist and former counsel to the president John Dean argues that the Democratic Senate can and should block President Bush, as a lame duck leader, from nominating a conservative, rather than a moderate, for a seat on the Supreme Court if a vacancy occurs. Dean draws on examples from John Adams's and Lyndon Johnson's presidencies to provide context for his analysis. He also explains why the next vacancy on the Court may be an especially crucial one.
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FindLaw columnist and Cardozo law professor Marci Hamilton argues that it's wrong for San Diego Bishop Robert Brom to have invoked the possibility of the Diocese's bankruptcy as a bargaining chip regarding the 143 consolidated, pending clergy child abuse cases against the Diocese. Hamilton argues that the Diocese has plenty of non-religious property it could sell off to avert bankruptcy; that there is no reason, here, to pit abuse victims against parishioners; and that the bankruptcy may well not be in good faith, as is legally required. She also contends that what the Diocese is really doing is working hard to prevent the truth from emerging in court, by using protracted bankruptcy proceedings to evade accountability for its role in the cover-up of the abuse.
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FindLaw columnist and Rutgers law professor Sherry Colb discusses an intriguing Fourth Amendment that the Supreme Court recently opted to review. The case arose because a police officer stopped a car, based on a false belief that its driver's registration had expired. During the stop, the officer saw substances related to the production of methamphetamine, but was able to connect them not to the driver, but to his passenger -- who was subsequently prosecuted. Were the passenger's Fourth Amendment rights violated? Does the passenger have "standing" to sue in this case? Colb discusses the difference between "Article III standing" and "Fourth Amendment standing," as well as the relevant Supreme Court precedents, in considering the answers to these questions.
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FindLaw columnist and human rights attorney Joanne Mariner discusses the current situation with respect to investigation and possible prosecution of alleged crimes by the CIA: While such investigations have occurred in Europe and Canada, in America they are nonexistent. Mariner explains the details of the European and Canadian investigations, and argues that the potential for embarrassment cannot be the entire explanation for America's decision not to investigate -- for other countries have gone forward despite their own complicity with the CIA, and thus the potential that they too could be shamed and embarrassed.
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FindLaw guest columnist and Pepperdine law professor Douglas Kmiec evaluates the performance, thus far in his tenure, of Supreme Court Chief Justice John Roberts. Kmiec finds Roberts to have so far performed "splendidly" -- praising his judicial modesty and successful quest for more frequent unanimity, and offering a series of examples of cases that illustrate Roberts's approach, and his view of the Court's role.
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FindLaw columnist, attorney and author Julie Hilden discusses a significant recent decision by the U.S. Court of Appeals for the Second Circuit. In the decision, the federal appeals panel reached two key holdings: First, the panel held that there was enough evidence to go to the jury on the question whether an FBI agent and a United States Attorney violated the First Amendment when they successfully intimidated a web host into de-posting a fictional video depicting a New Year's Eve military takeover of New York City relating to Y2K hysteria (and unsuccessfully tried to intimidate the filmmaker into doing the same(. Second, the panel held that, despite the legitimate First Amendment issues raised, the agent and government attorney were immune from any award of damages. Hilden questions the immunity holding in light of the factual circumstances of the case, and considers whether the post-9/11 context influenced the decision regarding these pre-9/11 facts.
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FindLaw columnist Vikram David Amar and FindLaw guest columnist Aaron Rappaport -- both U.C. Hastings law professors -- discuss Justice Samuel Alito's dissent in the Supreme Court's recent decision in Cunningham v. California. There, a majority of the Court voted to strike down California's sentencing system on the ground that -- by allowing judicial (not jury) factfinding to lengthen sentences -- it conflicted with the defendant's Sixth Amendment right to a jury trial. Was the majority correct? Or was Justice Alito? Amar and Rappaport explain the complex set of precedents that now govern the area of Sixth Amendment constraints on sentencing, and comment on who has the better of this argument.
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FindLaw columnist, attorney, and author Edward Lazarus takes strong issue with legal journalist and George Washington law professor Jeffrey Rosen's assessment of the tenure of former Supreme Court Chief Justice William Rehnquist. Rosen, in his recent book on the Court, portrays Rehnquist as having ultimately "moderated the ideological passions he had displayed during his first years on the Court," and displayed devotion to "majority rule." In contrast, Lazarus argues that Rehnquist's choices and decisions are much better explained by his canny use of strategy and his strong political agenda, than by any sincere moderation of his early conservative views -- and that Rehnquist was happy to ignore majority rule when he disagreed with the majority's policy choice.
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FindLaw columnist and U. Washington law professor Anita Ramasastry discusses the Department of Homeland Security's new Traveler Redress Inquiry Program (DHS TRIP). The program centralizes within a single office the task of redressing complaints from travelers who say they were wrongly placed on the no-fly or selectee lists, or wrongly stopped at the Canada or Mexico border. Ramasastry argues that while centralization is a positive step, the program will never be truly effective until travelers are allowed to examine the underlying data based on which they have been put on the lists -- and to specifically rebut the data if they are wrongfully listed. Toward this end, Ramasastry contends Privacy Act protections should apply here.
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Traditionally, the U.S. Attorneys for the nation's federal districts have had significant independence from the current Administration's politics. However, FindLaw guest columnist and U. Richmond law professor Carl Tobias argues that there is strong evidence the Bush Administration is breaking this tradition -- having asked so many U.S. Attorneys to resign that the Senate Judiciary Committee convened a February 6 hearing on the matter. Though the Administration claims at least some of its dismissals were performance-related, Tobias argues that the evidence is strongly to the contrary. Tobias also discussed how amendments to the USA Patriot Act have changed the legal background for the controversy.
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FindLaw columnist and Columbia law professor Michael Dorf analyzes Presidential candidate Rudolph Giuliani's changing position on abortion. As Dorf explains, Giuliani's stance in 1989, during his first campaign for New York mayor, was that Roe v. Wade should be overturned. That campaign was unsuccessful. In 1993, however, Giuliani ran (and won) as a pro-choice candidate. Giuliani's current position, as Dorf summarizes it, is pro-life as a personal matter, pro-choice as a political matter, and anti-Roe as a matter of constitutional law. Dorf comments upon whether these three positions are reconcilable.
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FindLaw columnist and Brooklyn law professor Anthony Sebok discusses a recent, important sex discrimination class action decision by a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit. In the decision, a two-judge majority of the panel -- over a strong dissent -- allowed a class action to go forward based on allegations by female Wal-Mart employees of promotion and pay discrimination. Sebok explains what has made the case special, difficult, and interesting -- including an allegation that discrimination occurred as a result of a passive "hands off" policy by corporate management, rather than an active blanket corporate policy. He also suggests what steps Wal-Mart is likely to take next.
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FindLaw book reviewer and RealNetworks Senior Counsel Cecily Mak discusses a fascinating new essay collection on the real world, virtual worlds, and the laws of each type of space. As Mak explains, the book illuminates questions such as the extent to which real-world laws should affect virtual words (like Second Life), protecting property and other rights; whether a virtual-world designer may own the intellectual property rights to the material that arises within the world she has created, or whether the direct creators of the material do; and whether virtual worlds may prove to be fertile testing grounds for untried, innovative real world legal approaches.
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FindLaw columnist and Hofstra law professor Joanna Grossman discusses the litigation, potential litigation, and estate issues that are pending in the wake of the recent death of Anna Nicole Smith. Grossman addresses questions such as: Will Smith's daughter, Dannielynn, ultimately share in Smith's late husband J. Howard Marshall's estate, amounting to nearly a billion dollars? What if Smith's will (if one exists) still included her late son, Daniel? How will the paternity battle -- in which four men are claimed by various sources to be potential fathers of Danielynn -- affect the fight over Anna Nicole's estate? If attorney Howard K. Stern was indeed married to Anna Nicole before she died, what role will he play in all this? Grossman also lists the three key factors upon which the question of who will inherit from Anna Nicole's estate will turn.
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FindLaw columnist and former counsel to the president John Dean discusses the question of whether Congress has the power to stop the U.S. from attacking Iran. Drawing on testimony recently given by a number of experts before Congress, Dean notes that all agreed that Congress indeed has this power under the Constitution. Their only disagreement was as to whether, as a policy matter, Congress ought to use the power -- generally, and in this particular case. Even prior Republican administration officials who testified, Dean points out, concede that the power exists.
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FindLaw columnist and Cardozo law professor Marci Hamilton discusses the British controversy as to whether Catholic organizations should be exempt from a law requiring that adoption agencies treat straight and gay potential parents equally. Hamilton explains, as well, how U.S. law would address this kind of a clash of values -- focusing, especially, on the Bob Jones University case, in which the university lost federal funding based on its racially discriminatory policy, which prohibited students of different races from dating each other.
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A federal appeals court has ordered Wal-Mart Stores Inc. to face a class action lawsuit that accuses the company of engaging in a pattern of discrimination against female employees in terms of pay rates and promotions. The U.S. Court of...
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In Part Two of a two-part series of columns on new Department of Education regulations allowing public secondary schools to maintain same-sex schools and classes, FindLaw columnist and Hofstra law professor Joanna Grossman discusses the constitutional issue that is raised by the regulations. Grossman explains the two key Supreme Court precedents relating to same-sex public or publicly-funded schools -- one regarding an all-female nursing school, the other regarding the renowned all-male military college VMI. She contends that the regulations are not tailored to address the tests and concerns the Court raised in these two cases.
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About 950,000 Easy-Bake Ovens have been recalled nationwide due to injury risk, according to the U.S. Consumer Product Safety Commission (CPSC). Young children can insert their hands into the oven’s opening and get their hands or fingers caught, posing an...
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The U.S Department of Commerce, Bureau of Economic Analysis (BEA) announced last week that Americans had a negative savings rate for 2006. The annual savings rate was negative 1 percent, which was the lowest since 1933. The savings rate from...
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National Consumer Protection Week (February 4 - 10, 2007) highlights consumer protection and education efforts around the country. The theme for this year is Be an Informed Consumer: Reach Up and Reach Out, encouraging consumers to take advantage of information...
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FindLaw columnist and Rutgers law professor Sherry Colb considers a case in which a Texas man was convicted of murder -- and sentenced to life in prison -- for killing his unborn twins (four months along in their gestation) by stepping on his girlfriend's abdomen several times, thus inducing her to miscarry. Colb explains the intersection of criminal law and abortion law in this case -- and why the case is made more complex by the fact that, reportedly, the girlfriend had asked the man to step on her abdomen to induce the miscarriage.
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FindLaw guest columnist and U.C. Hastings law professor Ethan Leib discusses in detail the PBS documentary on the Supreme Court that will begin airing tomorrow, February 7. Leib considers the documentary's point of view and approach, as well as its particular decisions as to what to include and what to leave out, and what periods and Court decisions deserve time and focus, and which do not. Leib also evaluates Jeffrey Rosen's companion book to the series -- which he finds superior, in ways, to the series itself.
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President Bush has submitted a proposed budget to Congress, detailing the nation's planned spending for fiscal year 2008 (which begins on October 1, 2007). The proposed budget totals $2.9 trillion, includes a plan for increased military spending, and implies a...
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About 2.3 million Maytag and Jenn-Air brand dishwashers are being recalled nationwide due to a fire hazard, according to the U.S. Consumer Product Safety Commission (CPSC). CPSC announced that Maytag has received 135 reports of dishwasher fires, resulting in product...
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In the first in a two-part series of columns, FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses a new U.S. Supreme Court decision invalidating California's "determinate sentencing" law. Amar explains in detail each of the crucial Supreme Court Sixth Amendment sentencing precedents that led to the decision -- each deriving from the key principle that juries, not judges, must find (beyond a reasonable doubt) the facts that determine the length of the sentence imposed in a criminal case. Read More...
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This afternoon the U.S. Senate passed The Fair Minimum Wage Act of 2007 by a vote of 94 - 3. This legislation would increase the federal minimum wage from the current $5.15 per hour to $7.25 per hour in three...
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FindLaw columnist and human rights attorney Joanne Mariner discusses the CIA program of secret detention and interrogation of detainees. Mariner takes the Bush Administration to task for rendering "Classified" information that very likely would reveal a wide gap between the President's descriptions of the program, and the reality of the facts as they occurred. As she explains, waterboarding and other severe and illegal techniques strongly appear to have been covered up by the use of the "Classified" categorization in a variety of contexts. Yet the Administration is working to silence detainees from discussing even the abuses they suffered at its hands. Read More...
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