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May 2007 - Posts
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FindLaw columnist and former counsel to the president John Dean discusses the possibility -- and the risks -- of a potential pardon by President Bush of I. Lewis "Scooter" Libby. (Libby, as readers will likely be aware, was convicted by a jury of false statements, perjury, and obstruction of justice charges arising from the Special Counsel Investigation of the revelation of the identity of covert CIA agent Valerie Plame.) Dean estimates how long a sentence of imprisonment Judge Walton is likely to give to Libby and when he will be required to begin serving it, and takes strong issue with contentions by Senator and potential presidential candidate Fred Thompson and others that Plame was never really a covert agent in the first place and thus did not fall under the core law the Special Counsel invoked. In addition, Dean draws on historical parallels, including some drawn from specific Watergate sentences and the Marc Rich pardon controversy, to illuminate his analysis.
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FindLaw columnist and Cardozo law professor Marci Hamilton assesses the impact of a growing trend: the passage of state laws allowing the death penalty to be imposed upon those convicted of child sexual abuse. Hamilton argues that while these laws show that the public is properly focusing on a grievous social problem, they will have only a limited impact, especially since, currently, only about 10% of victims report their abuse. More effective, Hamilton predicts, would be the abolition of civil and criminal statutes of limitations regarding these crimes (which are also torts), or at least the institution of "windows" during which suits can be brought. Without these limits, Hamilton argues, a number of past perpetrators may be fingered by those courageous enough to step forward, and thus prevented from acting against future victims.
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In the first of a two-part series of columns, FindLaw columnist and Hofstra law professor Joanna Grossman discusses the cultural consequences of Loving v. Virginia, the U.S. Supreme Court decision that held, forty years ago, that the U.S. Constitution prohibits states from passing laws banning interracial marriage. In particular, Grossman assesses how much the decision did, and did not, change society's views toward such marriages. She also covers the consequences for the Lovings themselves -- the couple who were the petitioners in the case, and who gained the right to marry in Virginia. In her next column in the series, Grossman will discuss the decision's legal legacy.
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FindLaw columnist and Rutgers law professor Sherry Colb discusses a defense that, she argues, is as fallacious as it is unusual: The claim that a couple charged with murder after their child died of starvation, were simply innocently feeding the child a vegan diet. Taking issue with a recent New York Times Op Ed concerning the case, entitled "Death by Veganism," Colb notes that children not only can, but often do, thrive on a vegan diet -- indeed, for children intolerant of dairy, such a diet, based on soy protein, is precisely what pediatricians will prescribe.
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FindLaw columnist and U.C. Hastings law professor Vikram David Amar, and FindLaw guest columnist and U.C. Davis law professor Alan Brownstein, offer a fresh perspective on the scandal relating to the firing of a series of U.S. Attorneys. Amar and Brownstein explain why -- beyond the issues raised relating to federal statutes and the public good -- there is a constitutional dimension to the scandal. They then explain the particular aspects of the Constitution that militate strongly against government partisanship in situations like this one. In addition, they contend that their analysis is not itself partisan, but rather, is endorsed in part by such eminent conservatives as Justice Antonin Scalia.
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Can a legal thriller effectively explore serious issues, as well as entertaining readers? FindLaw book reviewer and attorney Mark Tresnowski says the answer is a resounding yes -- when the thriller is The Law Clerk. In The Law Clerk, Tresnowski explains, author Scott Gerber -- a law professor at Ohio Northern and a FindLaw guest columnist -- not only creates an effective, fast-paced mystery, but also, along the way, illustrates why law clerks give up their idealistic views of the law, and how pornography may be connected to abuse of, and danger for, women. Tresnowski contends that the ambition of Gerber's novel makes it rise above other recent legal thrillers as an exceptionally interesting and rewarding read.
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FindLaw columnist and U. Washington law professor Anita Ramasastry discusses a recent California appellate decision that affirmed a California state court's right to assert jurisdiction in a criminal case over a Colorado doctor. California prosecutors charged that the doctor, without a California license, prescribed Prozac to a California man whom he'd never met, through an online pharmacy that only required that the California man fill out a form to report his medical history; the man subsequently died, with the Prozac in his system. Although the Colorado man never travelled to California, the court held jurisdiction existed because agents acting on his behalf sent the Prozac to an address in California. Ramasastry discusses observers' critiques of the court's approach, and proposed Congressional legislation that would regulate online pharmacies.
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FindLaw columnist and Columbia law professor Michael Dorf weighs in on a recent ruling by the U.S. Court of Appeals for the Ninth Circuit regarding alleged copyright infringement by the search engine Google. Dorf contends that the Ninth Circuit was correct to rule that Google did not infringe the copyright of Perfect 10, Inc.'s pornographic photos. Perfect 10 had complained that Google Image searches -- in part due to third parties' unauthorized posting of Perfect 10's photos -- often yielded results that included "thumbnails" of such photos, and that Google also "framed" other images of the photos on its own site.
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FindLaw columnist, attorney, and author Julie Hilden discusses a recent California appellate decision striking a plaintiff's complaint, and requiring the plaintiff to pay the defendant's attorneys' fees, pursuant to a California statute (the "Anti-SLAPP" statute) that allows courts to penalize meritless lawsuits targeting free speech. The plaintiff was a producer who sought to be credited as the producer of "My Big Fat Greek Wedding." The defendant, the Internet Movie Data Base, said it was only following the on-screen credits for the movie. Hilden discusses the case in the context of other California precedents and the guild system for awarding credits.
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FindLaw columnist and human rights attorney Joanne Mariner, who recently traveled to Afghanistan, discusses the six-fold increase there in civilian deaths -- resulting, often intentionally, from Taliban-instigated suicide bombings. In addition, "perfidious" attacks -- in which the attacker impersonates a civilian -- are common, and are causing casualties among bona fide civilians mistaken for perfidious attackers. Will Afghanistan soon become a second Iraq? Mariner contends that the warning signs are clear, though many Afghans have been turned strongly against the Taliban by its attacks.
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FindLaw columnist and former counsel to the president John Dean discusses a number of recent incidents that he argues demonstrate, beyond a doubt, that Attorney General Alberto Gonzales should either be fired or resign. In addition to charges that U.S. Attorneys' firings were politically-motivated, Dean also examines Gonzales's role in prompting an unnecessary clash between the Legislative and Executive Branches, by failing to consult with Congressional leaders before executing an FBI raid on the office of Congressman William Jefferson. Finally, Dean notes the sharp conflict between testimony given by Gonzales and by James Comey, who was Acting Attorney General when the Executive was debating whether the warrantless wiretapping program should go forward in contravention of the Foreign Intelligence Surveillance Act.
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FindLaw columnist and Cardozo law professor Marci Hamilton argues that not only the scandal over U.S. Attorney firings, but also another ongoing Department of Justice project, indicates that Attorney General Alberto Gonzales has improperly politicized the enforcement of justice. The project is the First Freedom Project, and its stated purpose is to fight religious discrimination, but Hamilton contends that its real motivation is to privilege the interests of religion and religious institutions above secular interests.
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FindLaw columnist, attorney and author Julie Hilden discusses two high-profile recent disputes concerning the "fair use" exception to copyright law. In the first, music company UMG challenged pundit and blogger Michelle Malkin's unauthorized use of excerpts from videos by and of its rap-music artist, Akon, in a podcast critical of Akon's behavior. Ultimately, UMG withdrew its request that YouTube, pursuant to the Digital Millennium Copyright Act (DMCA), de-post the Malkin podcast. In the second, photo agency X17 challenged blogger Perez Hilton's unauthorized use of its photos. X17 has sued; Hilton defends his use of the photos -- which he marks up with comments and drawings in white pen -- as satire, but Hilden explains why this defense is unlikely to persuade a court.
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FindLaw columnist and human rights attorney Joanne Mariner discusses the administrative procedures --performed by Combatant Status Review Tribunals (CSRTs) -- that were recently applied to fourteen "high value" Guantanamo detainees, and argues that they failed to accord detainees anything remotely like due process of law. She contends, too, that the detainees' upcoming military commission trials may be even worse in this regard -- producing sentences based on supposed "confessions" procured by means of abuse and even torture. She also notes that the Pentagon's censorship of CSRT proceedings, on the grounds that they could reveal interrogation methods, speaks volumes about the dubiousness of the methods that must have been employed. She also asks: Why were these proceedings, once open to journalists, closed?
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FindLaw columnist and Rutgers law professor Sherry Colb discusses a recent Supreme Court Fourth Amendment decision, arising out of an incident in which a high-speed police chase left a fleeing driver -- who had only committed a minor traffic offense -- paralyzed. The driver sued under the federal statute that allows plaintiffs to recover money damages for violations of their constitutional rights, but the Court held that his Fourth Amendment rights had not been violated. Colb argues that the Court not only erred in its interpretation of the Constitution, but has needlessly encouraged dangerous high-speech chases that will take a high toll in lives. She puts the case in the context of a prior Court precedent, to indicate how it might have been decided differently, and, she argues, far more wisely.
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FindLaw guest columnists Scott Gerber and Kevin Hawley -- a law professor and a distinguished practitioner in residence at Ohio Northern, respectively -- offer a humorous take on elitism in both legal academia and the legal profession. Though their piece is comedic, it has a very serious point: Both the law review article acceptance process and the hiring and later treatment of law firm associates are unfairly affected by bias, based on which law school professors teach at, or associates attended. If Gerber and Hawley are right, can law continue to claim it is anything like a true meritocracy?
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FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses a recent decision by the California Supreme Court allowing the imposition of a "prior restraint" -- that is, a court order enjoining a person in advance from speaking in a certain way. Prior restraints are specially disfavored, due to First Amendment considerations, and Amars explains the reasons for this rule. He also argues that the California Supreme Court took insufficient notice of one of these reasons: The difference between a judge's preliminary finding regarding speech, and a jury's eventual verdict on it.
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FindLaw columnist, attorney, and author Edward Lazarus looks beyond the controversy over the White House's and Attorney General Alberto Gonzales's roles in the firing of eight U.S. Attorneys, and asks a longer-term question: What guidelines should future administrations -- beginning with that of the president to be elected in 2008 -- set in order to ensure that White House/Justice Department interactions are proper? Lazarus explains the extent to which Attorneys General are properly political, and the ways in which their politicization can go to far. He argues that while guidelines are needed, moving to a system of fixed tenure that does not correspond to a particular Administration -- the system used for FBI Directors -- would be a mistake.
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FindLaw columnist and Columbia law professor Michael Dorf discusses President Bush's threat to veto a law that would expand the federal anti-hate crime law, to protect victims who are targeted due to their sexual orientation. Dorf explains the reasons one might reasonably oppose the current federal anti-hate crime law, but he also contends that to support the current law, but oppose its expansion to encompass sexual orientation hate crimes, is merely pandering to those who oppose equalizing the status of gay persons under the law.
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FindLaw columnist and U. Washington law professor Anita Ramasastry argues that Arizona is making a mistake in moving aggressively against the online home price estimator Zillow, by informing Zillow that it cannot continue to provide its "Zestimates" to state residents without procuring a real-estate appraisers' license. Ramasastry contends that the Zestimate -- which is accompanied by clear caveats -- should not be conflated by authorities with a real-estate appraisal, and that the bill pending in the Arizona state legislature that would make clear the difference between the two, and stop the state from proceeding against Zillow under criminal or civil law, should be passed and signed.
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FindLaw columnist and Brooklyn law professor Anthony Sebok takes strong issue with Philip Morris's argument, recently made before the U.S. Supreme Court, that the company should come within the federal statute that allows suits against "federal officers" to be removed from state court to federal court. Philip Morris says it acted as a federal officer when required to use the Cambridge test on its "lights" cigarettes, and that therefore suits challenging its "light" labelling as fraudulent belong in federal court. Sebok disagrees, and predicts the Court will, too -- in part because a ruling in the tobacco companies' favor would allow virtually any company subject to federal testing regulations to remove suits against it to federal court.
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In Part Two of a two-part series on the Supreme Court's recent decision to uphold the federal Partial-Birth Abortion Ban Act, FindLaw columnist Joanna Grossman and FindLaw guest columnist Linda McClain, both Hofstra law professors, comment on the significance of the decision for women's rights to liberty and equality under the U.S. Constitution. Grossman and McClain contrast the perspective displayed in the recent opinion, penned by Justic Anthony Kennedy, the perspective displayed in the opinion Justice Kennedy joined in Planned Parenthood v. Casey, the 1992 case that reaffirmed the basic holding of Roe v. Wade. In addition, they characterize abortion rights, under the Roberts Court, as currently "precarious."
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FindLaw columnist and U. Washington law professor Anita Ramasastry discusses the issue of whether public high schools and universities can legally punish their students based solely on the material included in their MySpace profiles. Ramasastry focuses, in particular, on a recent case from Pennsylvania in which a student at Millersville University, despite completing student-teacher training and other requirements, was denied her Education degree on the ground that she had posted an inappropriate photo (depicting her drinking what the caption suggested was alcohol) on her MySpace profile.
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FindLaw columnist and Cardozo law professor Marci Hamilton discusses what a recent Supreme Court opinion on Dormant Commerce Clause doctrine reveals about the views of the Court's two newest Justices -- Chief Justice Roberts and Justice Alito. Hamilton contends that, as Justice Thomas argues, Dormant Commerce Clause doctrine has always been illogical and misguided. She takes issue, in particular, with Justice Alito's views on the doctrine -- contending that Justice Alito thus far seems to lack the respect for the states' role in the constitutional system that his predecessor, Justice O'Connor, possessed. Indeed, Hamilton suggests that, based on the recent partial-birth abortion ban decision, Alito may well hold views opposed to O'Connor's not only as to federalism, but also as to abortion rights, as well.
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FindLaw columnist, attorney and author Julie Hilden argues that it was right for NBC to release the video sent to it by Virginia Tech shooter Cho Seung-Hui, and is also defensible for individuals to choose to host the video on their sites or post it on YouTube. Drawing a parallel to First Amendment "secondary effects" doctrine, Hilden argues that -- since it seems that the hope of glory is rarely, if ever, the "last straw" for a shooter -- claims to this effect are really a proxy for justified moral outrage. This outrage, she contends, ought to be directed at the shooter, not at those among the public who seek to better understand his crime by examining all the evidence relevant to it.
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