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April 2007 - Posts
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FindLaw columnist Joanna Grossman and FindLaw guest columnist Linda McClain, both Hofstra law professors, analyze the Supreme Court's recent ruling in Gonzales v. Carhart, in which the Court upheld the federal Partial Birth Abortion Ban Act (PBABA). Grossman and McClain explain the evolution of abortion law on the Court, up to and through this recent and important decision. In addition, they explain why -- due to the replacement of Justice O'Connor with Justice Alito -- the Court reached a result, in this case, directly opposite to the result it reached in 2000 when considering Nebraska's ban on "partial birth abortion."
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FindLaw columnist and Rutgers law professor Sherry Colb discusses the issue of the involuntary confinement of the mentally ill, based on predictions of future dangerousness, in the wake of the tragic Virginia Tech shootings. Colb contends that there are a number of compelling objections to such "preventive" confinement -- including that it is almost impossible to predict accurately who will, and will not, commit violence; and that the risk of confinement may inhibit mentally ill persons from seeking treatment, and thus actually lead to a greater degree of violence, by people who might otherwise have been helped by treatment.
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FindLaw columnist and U.C. Hastings law professor Vikram Amar and FindLaw guest columnist and U.C. Davis law professor Alan Brownstein discuss a suit challenging, on First Amendment grounds, the Santa Cruz City Council's decision to expel an audience member who expressed his displeasure via a one-second Nazi salute. Amar and Brownstein contend that the district court was wrong to rule against the audience member, and they consider, more generally, the issue of how thick-skinned officials in a democracy must be when they encounter citizens' disagreement and protest.
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FindLaw columnist, attorney, and author Edward Lazarus weighs in on the potential impact of the Supreme Court's recent split decision upholding a federal statute banning "partial birth" abortion. Lazarus argues that the Court should have left intact the relative state of peace imposed by 1992's decision in Planned Parenthood v. Casey, which both reaffirmed women's right to abortion as established by Roe, and increased states' latitude to regulate abortion prior to the third trimester. He also contends that Justice Kennedy's opinion for the Court serves the interests of neither women, nor those who want to protect fetuses, for it will lead to saving not a single fetus, while potentially imperilling women.
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FindLaw columnist and U. Washington law professor Anita Ramasastry dicusses the legal actions filed in India on the theory that Hollywood actor Richard Gere's planting kisses on Bollywood actress Shilpa Shetty was "an obscene act." Ramasastry puts the suits in context, noting similar recent suits against Bollywood stars for public kisses; explains the history and current state of Indian film censorship; and explains how Bollywood directors have cleverly responded to the public kissing ban.
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FindLaw columnist and Brooklyn law professor Anthony Sebok discusses Virginia Tech's potential liability -- depending on the results of the ongoing investigation -- in the shootings by Cho Seung Hui on April 16. Sebok focuses on the claims the wounded victims and the deceased victims' families might attempt to bring against Virginia Tech, and on the limitations of these approaches, imposed by the doctrine of sovereign immunity.
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FindLaw guest columnist, George Washington law professor, and NYU visiting law professor Neil Buchanan takes strong issue with recent arguments suggesting that America's rich are overtaxed. Buchanan contends that such arguments -- as put forward by such proponents as former Presidential Press Secretary Ari Fleischer, writing in the Wall Street Journal, and the Republican staff of Congress's Joint Economic Committee -- clash with fundamental American notions of fairness, and at times, are presented in a deceptive and misleading manner.
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FindLaw columnist and Columbia law professor Michael Dorf explains why private actions that silence speech, such as the firing of radio personality Don Imus, may render speech in America significantly less free -- even though, formally, only the government can violate the First Amendment. Drawing an interesting analogy to antitrust and labor law -- which hold that while boycotts of employers are permissible, "secondary" boycotts of employers' business associates are not -- Dorf explains the dangers of letting not only stations, but also sponsors, determine what can and cannot be said on the air.
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FindLaw guest columnist, attorney, and expert on psychology and the law Elaine Cassel discusses the psychology of Virginia Tech school shooter Cho Seung Hui in the context of the FBI school shooter profile and the information about Cho that has been made public so far. Categorizing Cho as a "pseudocommando killer," Cassel compares him to Columbine shooters Dylan Klebold and Eric Harris. She also considers possible ways to prevent future similar tragedies -- including gun control and improved counseling systems at universities.
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FindLaw columnist and former counsel to the president John W. Dean discusses the recent hearings probing into Attorney General Gonzales's role in a series of U.S. Attorney firings. Dean considers some of the most interesting revelations of the hearings, comments on how even Republicans on the Judiciary Committee have been sharply critical of Gonzales, and explains why no one should expect to see Gonzales either get fired or resign.
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FindLaw columnist and Cardozo law professor Marci Hamilton discusses the legal remedies that may be available against "video guerrilla" sites that host and curate a collection of links to pirated television episodes and movies. Hamilton contends that what the linking sites are doing is clearly contributory copyright infringement -- and explains that any legal uncertainty about the legal status of such activity may stem from the Supreme Court's 1984 decision in Sony, which she argues should be reversed.
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FindLaw columnist and Rutgers law professor Sherry Colb takes strong issue with a recent decision by the U.S. Court of Appeals for the Eighth Circuit -- holding that employers do not violate Title VII or the Pregnancy Discrimination Act (PDA), which amended it, when they deny coverage for oral (and other) contraceptives, yet allow it for other prescription drugs. Colb contends that, to truly enforce Title VII and the PDA, the courts must recognize that men and women are differently situated when it comes to contraception and to childbearing -- a point with which even conservative former Chief Justice William Rehnquist concurred -- and analyze discrimination issues accordingly.
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A number of courts -- including, recently, a federal appeals court -- have held that the Pregnancy Discrimination Act (PDA) does not require employers to cover prescription contraception when they cover other prescription drugs. In light of these holdings, FindLaw columnist and Hofstra law professor Joanna Grossman argues that a new federal statute is needed. Grossman explains why the EEOC takes the position that denial of contraception coverage, when other prescription drugs are covered, is pregnancy discrimination, and why some courts have disagreed. She also contends that, in light of the limited remedies state law offers, a federal statute requiring employers that cover prescription drugs to also cover prescription contraception should soon be enacted into law.
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FindLaw guest columnist and criminal defense attorney Jonna Spilbor applauds North Carolina's Attorney General for exonerating the three defendants in the Duke lacrosse case, but says that more must be done. Spilbor contends that it is imperative that the accuser in the case, Crystal Mangum, be charged with making a false report. In addition, she argues that it's time for an investigation of the prosecutorial overreaching that the Attorney General admits occurred, how it could have happened, and whether it is a systemic problem.
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FindLaw columnist, attorney, and author Julie Hilden discusses a recent case in which an Indiana appellate court removed a middle-school student's "juvenile delinquent" designation because it had been based upon an exercise of her right to free speech on MySpace. Though the girl's comments were profane, the court ruled that they also counted as political speech, because they took issue with her public school's anti-piercing policy. Though the case was decided solely under the Indiana Constitution, Hilden also analyzes how the student's First Amendment claims might have fared, in light of the issues raised in the pending "Bong Hits 4 Jesus" banner decision -- another case in which (arguably) anti-government speech resulted in a public school student's punishment.
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FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses an interesting California ruling allowing a public school district to assign pupils to schools based not on their own race, but on the racial mix of persons in their immediate neighborhoods. Amar contrasts this pupil assignment system to two other systems, in Seattle and Louisville, upon which the U.S. Supreme Court will rule this Term. Those systems expressly allow pupils to be assigned to schools based on the pupils' own race -- with the goal of matching the district's diversity in each of its individual schools. Amar considers whether, from the perspective of the U.S. Constitution's Equal Protection Clause, one type of system is more likely to be held constitutional than the other.
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FindLaw guest columnist and U.C. Hastings law professor Ethan Leib, and FindLaw guest columnist and political scientist David Ponet, together offer a fascinating take on Britain's House of Commons decision that almost all members of the House of Lords should face election. Using the United States as an example for the potential advantages of having a bicameral legislature, with both houses subject to reelection, Leib and Ponet discuss why it's a no-brainer to elect the Lords. Leib and Ponet also consider the objections of two prominent critics, and explain why they are wrong.
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FindLaw columnist, attorney, and author Edward Lazarus discusses Chief Justice Roberts's famous comparison of a Supreme Court Justice to an umpire at a baseball game -- in the context of the recent "global warming" decision, Massachusetts v. EPA, which split the Justices 5-4. Lazarus argues that when it comes to issues like the standing question raised in that decision, it's not accurate to compare a Justice to an umpire deciding if a ball was pitched within the strike zone, for the Justices are resolving an issue in which their individual viewpoints rightly play a crucial role. However, Lazarus notes, even if it was improper to see the Court as umpiring the "global warming" decision, that seemed to be the role many among the public wanted it to play, and claimed it had played.
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FindLaw columnist and U. Washington law professor Anita Ramasastry considers whether the virtual reality site Second Life might be violating the Unlawful Internet Gambling Enforcement Act (UIGEA) -- which forbids banks and other entities from processing payments for Internet gambling transactions. When Second Life's "Linden dollars" are used in a virtual casino within Second Life, and later exchanged for U.S. dollars, has Second Life aided and abetted a UIGEA violation by the virtual casino operator? Ramasastry considers the specific language of the statute in assessing the risk to Second Life.
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In Part Two of a two-part series, FindLaw columnist and Brooklyn law professor Anthony Sebok discusses whether the 9/11 Victims Compensation Fund (VCF) should be reopened to compensate New York City workers who are suing because they allege that they have incurred respiratory damage as a result of 9/11 cleanup. Sebok explains why the relevant federal statute -- though constitutional as applied to 9/11 victims and their families -- might not be constitutional with respect to 9/11 recovery workers unless they, too, are covered by an extension of the VCF. He also contrasts two issues of fairness: First, is it fair if 9/11 cleanup workers receive greater awards than other similarly-situated injured New York City employees? Second, is it fair if 9/11 cleanup workers are left out of the VCF, even though their injuries, too, were ultimately caused by the attacks?
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FindLaw guest columnist and Florida International law professor Howard Wasserman discusses the Supreme Court's decision this Term in a case that asked whether a man whose arrest and detention had violated the Fourth Amendment timely filed his civil suit seeking to recover damages for the harms flowing from the arrest. The federal civil rights statute upon which the civil suit was based is Section 1983. Wasserman explains how the holding in this Term's decision -- along with several other interrelated doctrines -- make it difficult for Section 1983 plaintiffs to prevail in their suits to challenge unlawful arrests, unless they file suit before, or even during, their criminal trial on the charges arising out of the arrest.
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FindLaw columnist and Columbia law professor Michael Dorf discusses the Supreme Court's recent ruling that the EPA has authority, under the Clean Air Act, to regulate emissions of greenhouse gases by new automobiles. Since the EPA still has the latitude to decline to regulate, Dorf points out that the ruling, in itself, cannot do anything to stop global warming -- unless and until this or the next administration wants to do so. Dorf also stresses the direct effect that we can be certain the ruling will have: It sets a strong precedent for allowing the doctrine of standing -- the legal right to come to court to seek enforcement of a given law -- to become more sensible and realistic.
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In a question-and-answer session, FindLaw columnist and former counsel to the president John Dean discusses the recently-released autobiography of former Republican majority leader Tom DeLay, entitled "No Retreat, No Surrender," with expert psychologist Bob Altemeyer. Altemeyer finds strong evidence indicating an authoritarian personality based on his reading of DeLay's book, and on publicly-known facts about DeLay.
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FindLaw columnist and U. Washington law professor Anita Ramasastry discusses the Department of Homeland Security's proposed regulations implementing the REAL ID Act -- which establishes standards for state verification of information provided to obtain drivers' licenses and non-driver identification cards. Ramasastry argues that the proposed regulations should not become final without significant changes that would better protect privacy, better prevent identity theft, and lessen the already-heavy financial burden the REAL ID Act places on the states.
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FindLaw columnist and Cardozo law professor Marci Hamilton discusses instances in which, she argues, individuals and institutions have gone beyond the constitutionally-protected requirements of their religious practice, to defy the law. Hamilton points out that while one oft-cited Supreme Court case did allow the Amish not to send their children to school as the law requires, other Supreme Court cases clearly affirm religious individuals' duty to follow generally-applicable laws. She cites a range of examples of instances in which she contends that, despite this duty, individuals or institutions have tried to use their religious status to place themselves in a privileged position, above the laws and regulations with which everyone else must comply.
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FindLaw columnist and Rutgers law professor Sherry Colb discusses a spate of proposed state laws that would mandate that preteen girls must be vaccinated against sexually-transmitted HPV, a virus that can cause cervical cancer. Colb considers two potential objections to mandatory vaccination -- that vaccination condones premarital sex, and that the vaccine is so new, its true risks may be unknown. Colb argues that the first objection should be rejected because once analyzed, it is unconvincing, but that the second objection may be serious enough to leave the question of whether to vaccinate in the hands of parents, not States. She also explains why the Supreme Court case recognizing the right to refuse treatment is not applicable here.
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FindLaw columnist and Hofstra law professor Joanna Grossman discusses a recent "hostile environment" sexual harassment decision by the U.S. Court of Appeals for the Eleventh Circuit. Grossman argues that the decision is itself deeply flawed -- and also reveals flaws in the approach the Supreme Court has taken to "hostile environment" harassment claims. She discusses, in particular, the two-pronged showing that allows employers to escape liability if they set up internal procedures to address harassment complaints, and the employee fails to timely avail herself of those procedures.
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FindLaw columnist, attorney, and author Julie Hilden argues that Carol Burnett is threatening the rights of writers generally by suing Twentieth Century Fox for a brief parody, appearing in an episode of "The Family Guy," of Burnett and her "Charwoman" character. Hilden argues that even broad parodies like this one deserve full First Amendment and "fair use" protection. She also argues that, due to the muddiness in this area of law, writers should refrain from challenging other writers' right to parody except in the most clear-cut cases -- and, she says, this is not such a case.
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