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March 2007 - Posts
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FindLaw columnist and U.C. Hastings law professor Vikram Amar analyzes the Fourth Amendment issues raised in a case that the Supreme Court will decide this Term. While the Fourth Amendment rights of a car's driver are well-established -- since it's clear that a driver is "seized" when the police stop his or her car -- the Fourth Amendment rights of a passenger, as Amar explains, are much less clear. Amar contends that a passenger is, indeed, "seized" when the car in which he is riding is stopped, since most passengers would be very wary of attempting to leave when a police officer is questioning the driver, whether or not they are expressly ordered to stay still. He points out, however, that even if the Court recognizes a "seizure," and a Fourth Amendment violation here, it may still be reluctant to apply the "exclusionary rule" that would remove the confiscated drug paraphernalia from the evidence adduced against the passenger.
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FindLaw columnist, attorney, and author Edward Lazarus calls for more accountability and greater disclosure in the scandals regarding FBI overuse of National Security Letters and DOJ's firing of Attorney Generals. Lazarus argues that while, in current political discourse, an apology can often play a strong role in ending a controversy, that shouldn't be the case, for the truly relevant questions are why the underlying incidents occurred, and how they can be prevented from happening again. Lazarus accordingly contends that Iraq War opponents should not focus so heavily on the fact that John Edwards has apologized for his Iraq War resolution vote, while Hillary Clinton has not apologized for hers.
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FindLaw columnist and human rights attorney Joanne Mariner discusses a potentially important new development with respect to the U.S.'s Guantanamo Bay detention center: the arrival of a new detainee, a Kenyan named Abdul Malik. Mariner considers why -- after two-and-a-half years of watching Guantanamo's population steadily shrink, amid international criticism of the facility -- the Bush Administration has transferred a new detainee there. She also asks why Malik -- arrested in Kenya, far from any war zone -- isn't being held in preparation for a federal court trial, rather than being indefinitely detained as an "enemy combatant" at Guantanamo.
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With over eight thousand firemen, police officers, rescue workers, sanitation workers, and construction workers having filed lawsuits claiming respiratory damages from their post 9/11 response efforts in the World Trade Center attack's area, should Congress reopen the 9/11 Victims Compensation Fund (VCF) to cover these suits? FindLaw columnist and Brooklyn law professor Anthony Sebok addresses that question in a two-part series of columns. In this column, Part One in the series, Sebok reviews the terms of the VCF legislation and the two key court decisions that have been issued so far regarding the respiratory damage cases.
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FindLaw columnist and Columbia law professor Michael Dorf considers the various defenses Al Gore's supporters have raised to justify Gore's living in a 10,000-square-foot mansion while also pushing for "green" solutions to global warming. Dorf deems Gore's best defense his carbon-balancing -- that is, his decision to contribute to "green" charities that plant trees or invest in wind power, with positive effects that counteract the negative effects of Gore's own energy use -- but finds this defense, too, not entirely satisfactory. Dorf, however, applauds Gore for emphasizing the need for a carbon tax, and explains why such a tax is crucial.
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Will the Bush Administration continue to assert executive privilege with respect to documents and testimony Congress seeks relating to the controversy over U.S. firings? FindLaw columnist and former counsel to the president John Dean contends that it's very likely the Administration will, indeed, hold firm in this stance. In support of his view, Dean considers the background of new White House Counsel Fred Fielding, whom Dean himself brought into government years ago, and the Bush Administration's embrace of the "unitary executive" theory. Dean also recalls a similar controversy involving EPA Administrator Anne Gorsuch, which played out during the Reagan years.
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FindLaw columnist and Cardozo law professor Marci Hamilton analyzes the "Bong Hits 4 Jesus" case on which the Supreme Court this week heard oral argument. The case asks whether it violated the First Amendment for a high school principal to penalize a student for unfurling a "Bong Hits 4 Jesus" banner at an Olympic parade for which students had been excused from school for the afternoon. Hamilton, drawing on the comments the Justices made at oral argument, contends that the principal should prevail, for the student's First Amendment case is weak. She also considers what significance it may have to the case if the Court views the banner's message as advocating illegal drug use, as opposed to simply being a nonsense statement.
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FindLaw columnist and Rutgers law professor Sherry Colb discusses a recent instance of what seems to have been appearance-based discrimination by a sorority, with respect to its chapter at DePauw University. (The sorority claims it purged members due to their lack of recruitment efforts; others, including DePauw's President, saw the purge as a case of survival of the prettiest.) Colb compares appearance-based discrimination to other forms of discrimination, considers the pros and cons of making such discrimination illegal, and proposes a non-legal remedy to make organizations incur potentially significant costs when they engage in appearance-based discrimination.
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FindLaw columnist and Hofstra law professor Joanna Grossman discusses the very limited legal protections available for employees who are fired simply because they are transsexuals -- focusing on two recent cases. As Grossman explains, would-be plaintiffs within the jurisdiction of the U.S. Court of Appeals for the Sixth Circuit, and those within certain cities, may be able to sue successfully, but those living elsewhere probably will not. Grossman explains the key Supreme Court precedent that could pave the way for more suits based on discrimination against transsexuals: an opinion that made clear it is illegal sex discrimination to fire a person merely because he or she fails to conform to gender steretypes of "femininity" or "masculinity." Though this precedent is not new, Grossman argued that it is underutilized in court.
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FindLaw guest columnist and Pepperdine law professor Douglas Kmiec brings an historical perspective to the controversy over the firing, by Attorney General Alberto Gonzales, of a number of U.S. Attorneys. Kmiec explains how the office of the Attorney General evolved, and discusses a key Supreme Court case relating to the Executive's hire/fire power over those in the executive branch. He cautions against presuming that Executive firings are politically-motivated.
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FindLaw columnist, attorney, and author Julie Hilden discusses a recent opinion by Judge Jack Weinstein of the U.S. District Court for the Eastern District of New York in litigation over the alleged side effects of the drug Zyprexa. The opinion discusses the conduct of New York Times reporter Alex Berenson, who concocted a ruse -- also involving an out-of-state attorney, and an expert in the litigation -- to circumvent the protective order covering the Zyprexa litigation, in order to get the information about the alleged side effects out to the public immediately. Hilden argues that what Berenson did should count as valid civil disobedience -- but points out that he would be on far more solid ground had he sought an exemption from the protective order before (or even simultaneously with) violating it.
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FindLaw columnist and U.C. Hastings law professor Vikram David Amar discusses a recent Supreme Court decision that held that four Coloradans lacked the requisite standing to sue to challege the state's congressional districting, on the theory that the state legislature's plan should have superseded that of a state court. Amar discusses both the substantive constitutional issues involved and the basis for the Court's standing ruling -- which is not quite as firmly grounded, he suggests, as the Court's unsigned, unanimous opinion would indicate.
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FindLaw guest columnist and Marquette law professor Scott Moss discusses a number of controversial aspects of the recent trial and conviction of former Cheney Chief of Staff "Scooter" Libby. Moss argues that the jury's verdict seems, at least from an outside perspective, to have been reasonable, and that the jury's behavior in asking for additional materials and asking questions is commendable. In addition, Moss predicts a pardon for Libby, to be given at the end of Bush's term. Moss also argues that while Libby will be pardoned, he should not be -- especially due to the separation-of-powers ramifications.
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FindLaw columnist and Columbia law professor Michael Dorf discusses the recent report by the Justice Department's Inspector General on the FBI's use of National Security Letters (NSLs) -- warrantless requests for customer information issued to entities including Internet Service Providers, banks, and telecommunications companies. Dorf points out that some of the problems the report unearthed -- such as poor recordkeeping, overuse of the "exigent" designation, and production of more information than had been requested, due to confusion on the part of the NSL recipient -- jeopardize both individual privacy and national security, two values that are often opposed, but here militate in the very same direction.
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FindLaw columnist and Brooklyn law professor Anthony Sebok discusses an important German Constitutional Court decisoin, regarding the constitutionality of the statutory limits on the contingency fees that can be promised by clients to their attorneys, if the attorneys prevail in court. Along the way, Sebok discusses the role played, in this controversy, by several German legal rules that are the opposite of the rules in the U.S.: In Germany, nonlawyers, including corporations, are allowed to fund lawsuits; losers pay winners' attorneys' fees; and contingency-fee attorneys must not only fund suits, but also must be the ones to pay the winner's fees if they lose their cases.
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In light of the controversy over claims that political motives were behind the firing of a series of U.S. Attorneys, FindLaw guest columnist and University of Richmond law professor Carl Tobias analyzes recent developments. As Tobias explains, there is now evidence that attempts have been to induce the silence of the fired U.S. Attorneys, in order to cover up the scandal. In addition, the Justice Department has refused to state the grounds for the firings. Tobias argues that further Congressional investigation is therefore in order.
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In Part Two of a two-part series of columns on CIA "disappearances," FindLaw columnist and human rights attorney Joanne Mariner considers a pressing question: Given President Bush's representation, as of last September, that there were no prisoners held in CIA custody, what, precisely, happened to the prisoners whom evidence shows were held by the CIA before then? Mariner offers estimates of the numbers and nature of such prisoners, and points, as well, to specific lists of names of those believed to be former prisoners, whose whereabouts are unaccounted for. She raises the very strong possibility that they were sent by the CIA to foreign prisons in countries where torture is practiced.
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FindLaw guest columnist and Deputy Chief of the Department of Justice's Counterterrorism section Jeff Breinholt discusses a number of recent strategies in "war on terror"-related cases that he argues may well be instances of "lawfare," defined as the use of legal strategies to achieve or defeat military objectives. Breinholt's examples come from the recent case of Muhammed Salah, convicted of being part of a Hamas racketeering conspiracy, and litigation involving Guantanamo detainees.
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FindLaw columnist and Cardozo law professor Marci Hamilton discusses the controversy and litigation surrounding Washington State churches' decision to host a travelling "tent city" of homeless persons on their grounds. Hamilton explains how a federal statute, the Religious Land Use and Institutionalized Persons Act (RLUIPA), gives an edge to religious landowners in cases like this one, and argues that Washington State legislators should insist that the tent cities cannot move into a neighborhood without checks to ensure none of the persons within them have criminal records.
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FindLaw columnist and U. Washington law professor Anita Ramasastry argues that Congress needs to take a close look at the Department of Homeland Security's new data-mining program -- Analysis, Dissemination, Visualization, Insight and Semantic Enhancement (ADVISE) -- which may go into effect as early as 2008. Ramasastry explains why ADVISE sounds a great deal like the junked Total Information Awareness (TIA) program, and has many of TIA's flaws. She argues that, especially in lights of reports that even the testing of ADVISE violated privacy laws, ADVISE's consequences for privacy cannot be ignored.
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California Lawyer article. Drawing on the experiences of some particular Generation Xers, Hilden considers why both female and male associates are choosing to leave, and suggests ways firms might effectively convince them to stay.
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FindLaw columnist, attorney, and author Edward Lazarus comments on the phenomenon of Supreme Court Justices speaking publicly much more frequently than they have in the recent past. Lazarus argues that while some types of comments by the Justices may have a positive effect, comments such as those by Justice Scalia and former Justice O'Connor that, in effect, urge America to forget about the Bush v. Gore decision and move on, are damaging to the Court.
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FindLaw columnist, attorney, and author Elaine Cassel discusses the recent finding by a federal district judge that Jose Padilla is mentally competent to stand trial. Padilla -- initially referred to by the government as a "dirty bomb" conspiracy suspect -- was held in solitary confinement for years as an "enemy combatant," without access to any attorney. He says he was also tortured during his confinement. Now, Padilla has been indicted -- but on different charges. Cassel covers the history and possible future of the case; explains the standards for a competence determination; gives examples of the types of defendants who are found incompetent; and discusses why most judges would have ruled, as the judge did here, that Padilla is mentally competent to stand trial.
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In Part One of a two-part series of columns, FindLaw columnist and human rights attorney Joanne Mariner discusses the case of Marwan Jabour as an example of the CIA's practice of kidnapping people and holding them in secret prisons abroad. Jabour, a Palestinian who was studying in Pakistan, says that after he was arrested in Pakistani, he ended up being flown to a secret CIA prison, where he says he was tortured and kept in solitary confinement for over two years. Relatedly, Mariner notes the U.S.'s troubling refusal to sign the Convention against Enforced Disappearances, to which sixty other countries became signatories last month.
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FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses a number of interesting aspects of, and lessons from, the Supreme Court's recent decision striking a huge award of punitive damages against Philip Morris. Amar focuses especially on the role of Justice Stephen Breyer, in this case and generally: He argues that Justice Anthony Kennedy is not the Court's only swing vote; Breyer often plays that role, too, and considers how this decision evidences a possible evolution in Breyer's views on procedural and substantive limitations on punitive damages.
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