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June 2007 - Posts
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FindLaw guest columnist Jonathan Hafetz, the Litigation Director for the Liberty and National Security Project of the Brennan Center for Justice at NYU law school, discusses recent revelations regarding the nature of the Combatant Status Review Tribunal (CSRT) used at Guantanamo to decide whether to label detainees "enemy combatants." Hafetz contends that the new facts -- contained in a sworn declaration by a military officer that was submitted in several court cases -- show that detainees received nothing remotely close to due process.
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FindLaw columnist and former counsel to the president John Dean chronicles Vice President Cheney's claims, over the course of the Bush Administration, that various laws do not apply to him or to the President. Dean focuses, in particular, on Cheney's explanation for why he defied National Security Classification orders: the assertion that, as Vice President, he is neither an "entity" nor an "agency." Dean also contends that Cheney is ignoring the boundaries of the limited role the Constitution prescribes for the Vice President.
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FindLaw columnist and U. Washington law professor Anita Ramasastry discusses a RICO/malicious prosecution case brought against the Recording Industry Association of America (RIAA) by an Oregon woman, Tanya Andersen, who says the RIAA wrongly accused her of, and sued her for, illegally sharing copyrighted music files. (The RIAA had previously dropped its file-sharing suit against Andersen, and she may be entitled to attorneys' fees as a result.) Andersen claims that the RIAA proceeded with its suit despite clear evidence that she was innocent -- and even tried to question her then-seven-year-old daughter without contacting her first. In particular, Andersen says she found the real culprit on MySpace, using his Kazaa nickname, and alerted the RIAA; and that she offered to show the RIAA records of her prior music purchases showing she favors country music and soft rock, not the hardcore gangster rap the RIAA said she illegally traded.
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FindLaw guest columnist and University of Richmond law professor Carl Tobias offers several potential compromise solutions to the imminent constitutional confrontation regarding the Bush Administration's refusal to allow former White House Counsel Harriet Miers and Political Director Sara Taylor to testify under oath in response to Congressional subpoenas. The subpoenas seek Miers's and Taylor's testimony relating to the controversial, allegedly politically-motivated firings of a series of U.S. Attorneys.
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FindLaw columnist, attorney, and author Julie Hilden discusses a recent, 2-1 decision by a panel of the U.S. Court of Appeals for the Second Circuit, striking down the FCC's policy on "fleeting expletives" (that is, expletives used only very occasionally in the course of a lengthy program). Hilden explains why the panel's majority opted to strike down the policy under the Administrative Procedures Act, rather than the First Amendment. In addition, she considers why Judge Pierre Leval, though otherwise a strong defender of writers' and artists' rights, dissented.
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Willamette law professor, Environmental Law Prof Blog author, and FindLaw guest columnist Susan L. Smith comments on both the events leading up to the G8 summit on global warming, and the upshot of the summit itself. Smith contends that throughout these events, the U.S. intentionally and severely undermined proposed commitments to address climate change in meaningful ways, and presents a detailed case in support of her position.
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FindLaw columnist and human rights attorney Joanne Mariner discusses the U.S.'s use of the tactic of taking hostage the family members -- including children -- of terrorist suspects. She notes that the tactic was used, for example, in connection with the investigation into Daniel Pearl's kidnapping. In another case, she notes, two young children were detained for months. Mariner condemns the tactic of using human beings as bargaining chips, whether practiced by terrorists or governments. She also notes the refusal by Bush Administration torture memo author Yoo to concede even that, hypothetically, it would be illegal to commit such an atrocity as to crush innocent children's testicles as their parents look on.
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FindLaw columnist and Rutgers law professor Sherry Colb discusses an interesting aspect of the scandal relating to Andrew Speaker's decision to travel after being diagnosed with drug-resistant tuberculosis (TB): The U.S. has now quarantined Speaker, under the first quarantine imposed in this country since 1963. Meanwhile, another man with drug-resistant TB, Robert Daniels, has also been confined, in Arizona. Colb discusses several related questions: Why aren't such quarantines deemed to violate constitutitional rights? And is it a good or a bad idea, as a matter of policy, to impose them?
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FindLaw guest columnist, RealNetworks Senior Counsel, Music, and intellectual property attorney Cecily Mak weighs in on the controversy over the upcoming major -- and retroactive -- hike in Internet radio royalty rates. As Mak explains, webmasters have asked the D.C. Circuit Court of Appeals for an emergency stay of the ruling from the Copyright Royalty Board requiring the rate hike. Mak points out that the higher rates will put many smaller sites into bankruptcy, and will likely inhibit larger companies from offering personalized radio stations. As a result, she argues, everyone loses -- from rights holders, to distributors, to consumers.
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FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses the recent Supreme Court decision holding that when a police officer effects a traffic stop of a private vehicle, not only the driver but also the passengers are "seized" within the meaning of the Fourth Amendment. Amar explains why the Justices may have felt comfortable issuing a unanimous decision in this case, and discusses several issues that will still remain to be litigated when the case is remanded to the California courts.
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FindLaw guest columnist and criminal defense attorney Jonna Spilbor argues that Durham D.A. Mike Nifong's recent disbarment, relating to the Duke lacrosse prosecution for alleged rape, is only the most obvious of many potential consequence of Nifong's misconduct. In particular, Spilbor considers the potential that prosecutors will now fear prosecuting valid rape cases that lack DNA evidence; the possibility of civil suits against the county and Durham himself; and the strong chance that it wasn't the first time Nifong had acted wrongly in the context of one of his prosecutions.
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FindLaw columnist, attorney, and author Edward Lazarus describes the recent change in the Roberts Court -- which has moved from relative harmony to sharp division through a series of 5-4 opinions addressing issues such as "partial birth" abortion and women's right to challenge sex-based discrimination in pay. Soon, Lazarus predicts, the court will also split over the issue of the use of race in the assignment of public school pupils to particular schools within a district. Lazarus argues that the most fascinating aspect of the Roberts Court's transformation has been the parallel transformation of Justice Ruth Bader Ginsburg. Since Ginsburg dedicated her prior life to litigating women's equality, Lazarus argues that it is no surprise that she not only dissented in the recent Title VII and abortion cases, but also went so far as to make a strong statement by reading her dissents from the bench.
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FindLaw guest columnist and director of the Brennan Center for Justice's Liberty and National Security Project Aziz Huq discusses a largely unremarked development in the trend toward the globalization of law: The potential displacement of claims of constitutional rights violations from domestic courts into international forums that may be far less avid and effective in protecting rights. Huq focuses, in particular, on two cases involving U.K. and U.S. citizens detained by their own respective militaries in Iraq. (Huq represents one of the U.S. citizens.) In each case, the U.S. or U.K. government is arguing, in essence, that since its actions were authorized by the U.N. Security Council, no domestic court can scrutinize them.
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FindLaw columnist and Columbia law professor Michael Dorf discusses a recent, 5-4 Supreme Court decision with a harsh result: Because a habeas corpus appellant relied on a federal district court judge's written order containing a mistaken date regarding the time limit for him to submit his appeal, he now has lost his only chance to appeal his sentence of fifteen-years-to-life. Dorf argues that there is no plausible legal justification for this oppressive result, and points out that the defendant has been put in a truly Kafkaesque situation, reminiscent of The Trial.
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FindLaw guest columnist and Richmond law professor Carl Tobias contends that the claim that Democrats have been too slow to consider the Bush Administration's judicial nominees -- a claim that has prompted Senate Minority Whip Trent Lott to threaten to shut down all activity in the Senate unless Democrats pick up the pace -- is wrong on the facts. Tobias argues that Democrats haven't actually been especially slow, and that Republicans used the same tactics during the Clinton years. He also points out that the White House has yet to nominate candidates for a number of court vacancies or soon-to-be-vacancies; and suggests a solution to resolve the impasse.
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FindLaw columnist and Brooklyn law professor Anthony Sebok considers two recent, high-profile suits. One, filed by an administrative judge, asks for huge damages against dry cleaners who are alleged to have lost the judge's expensive suit pants, and then substituted a cheap pair of pants in their place, while claiming that the substitutes were the genuine article. The other, filed by former judge and former Supreme Court nominee Robert Bork, alleges that because the Yale club negligently failed to provide a step for him to access its lectern, Bork suffered $1 million in damages. Sebok contends that while there is a genuine dispute at the heart of each of these cases, the judges should have set a good example by paring their claims and damages down to their true core, to encourage rapid settlement.
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FindLaw guest columnist and Western New England law professor Jamison Colburn argues that the DEA's longstanding policy of prohibiting the use of not just marijuana, but also hemp, is irrational -- as illustrated by a suit filed recently by farmers who seek to grow hemp for industrial use, challenging the DEA policy. Colburn tracks the policy and the related statutes back to their origins; clarifies the science surrounding cannabis, marijuana, hemp and THC; and covers significant decisions on the matter by the U.S. Courts of Appeal for the Eighth and Ninth Circuits.
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FindLaw guest columnist and former Department of Justice attorney Jesselyn Radack discusses the recent decision by a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit holding, 2-1, that the Bush Administration could not constitutionally detain Ali Saleh Kahlah al-Marri indefinitely, without charge. Radack contends that the decision is the right one, and places it in the context of other cases where detainees such as Yaser Hamdi and Jose Padilla were labelled "enemy combatants" by the Administration. However, she notes that the precedent seems likely to have only very narrow relevance, if that, for other cases.
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FindLaw columnist and human rights attorney Joanne Mariner discusses the situation of those among Guantanamo's 380 prisoners who are likely to face torture if released to return to home countries such as Libya, China, Uzbekistan, and Algeria. In particular, Mariner focuses on Abdul Ra'ouf al-Qassim, who it seems very likely will be transferred this week to Libya's brutal Abu Salim prison -- where the U.S. State Department has noted that prisoners are "routinely tortured." Mariner points out that international law that binds the U.S. forbids a country from transferring a detainee to a country where there are substantial grounds to believe he will be tortured. In addition, Mariner points out that a U.K. immigration court recently saw through Libya's no-torture promises and stopped a detainee's return there, and contends the U.S. should do the same.
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FindLaw columnist and former counsel to the president John Dean comments on what appears to be a change in the legal strategy of Scooter Libby. (Libby, as readers will likely be aware, was convicted of and sentenced for perjury and related offenses, in connection with the Special Counsel investigation into the exposure of Valerie Plame's identity as a covert CIA agent.) Recently, as Dean explains, Libby brought in a new attorney to take a more aggressive approach in attempting to convince the judge in Libby's case to allow Libby to remain free pending appeal. Dean predicts that the approach will ultimately fail -- for an appeal of the decision to jail him immediately will not succeed.
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FindLaw columnist and U. Washington law professor Anita Ramasastry discusses the recent phenomenon of "cybertattling" websites designed to identify bad drivers. On the sites, users tell stories of dangerous driving, post license plate numbers, and sometimes post other identifying details as well. Ramasastry points out that such sites raise two potential issues -- regarding the privacy of one's daily travels, and regarding potential inaccuracies in the information posted -- and explains why, nonetheless, the sites are perfectly legal. She also notes that there is a risk insurance companies may begin to rely on information from such sites, without proper checks for accuracy.
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FindLaw columnist and Brooklyn law professor Anthony Sebok discusses the legal claims that may potentially be brought against Andrew Speaker, the Georgia attorney who disregarded CDC instructions and returned to the U.S. via plane and then car for medical treatment for his tuberculosis, thereby potentially exposing fellow plane passengers to the disease. Sebok covers two important questions regarding potential suits against Speaker: Can passengers sue Speaker even if they didn't contract TB, but suffered fear as a result of learning about their exposure? And, could passengers' lawsuits successfully include the kind of allegations of intentional torts that could lead to the award of punitive damages agaisnt Speaker?
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In the second of a two-part series of columns, FindLaw columnist and Hofstra law professor Joanna Grossman discusses the legal legacy of Loving v. Virginia. Forty years ago, in Loving, the U.S. Supreme Court held that the U.S. Constitution prohibits states from passing laws banning interracial marriage. However, as Grossman explains, the precedent set by Loving has since then had ramifications regarding the battle over same-sex marriage, and the proposition that though the subject of domestic relations has traditionally belonged to the states, state regulation in this area is still controlled by the U.S. Constitution.
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Is it possible that legalizing a particular practice can actually reduce, rather than enhance, choice? FindLaw columnist and Rutgers law professor Sherry Colb considers this argument as presented by opponents of legal abortion and legal euthanasia, respectively. Both groups, as Colb explains, contend that legalizing a given practice may set up a "new normal" that makes it more difficult to opt away from that practice -- such that young women are pressured into abortion, or terminally ill patients are pressured into euthanasia. Colb analyzes and parallels these arguments, but in the end finds them unconvincing.
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FindLaw guest columnist and longtime Southern California criminal defense attorney Jonna Spilbor argues that both Paris Hilton's initial sentence, and Judge Sauer's decision to send Hilton back to jail, were wrong. Regarding Hilton's initial sentence, Spilbor contends that it is much longer than similarly-situated defendants typically serve, and that the difference is probably due, as Sheriff Baca remarked, to Hilton's celebrity status -- which is unfair. Regarding Judge Sauer's decision to sent Hilton back to jail, Spilbors argues that he improperly held the Sheriff's Office's apparent failure to provide supporting documentation against Hilton herself, and should have made an inquiry into Hilton's medical condition before returning her to jail.
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FindLaw columnist and U.C. Hastings law professor Vikram Amar contends that when it comes to filling the Senate vacancy that has been presented as a result of the unfortunate death of Republican Senator Craig Thomas, the consensus among pundits has ignored important options and possibilities. Wyoming law says that the Governor must choose a same-party successor to replace Thomas, from three candidates offered by the GOP. But Amar raises important questions as to whether this state scheme is in conflict with the Seventeenth Amendment of the U.S. Constitution, and draws on precedents such as Bush v. Gore to suggest what the Supreme Court's view on the matter might be. Amar also considers remedies if the Senate agrees that there is a constitutional violation -- including its potential refusal to seat Thomas's successor.
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FindLaw columnist, attorney, and author Edward Lazarus provides a detailed explanation of why Judge Walton meted out a 30-month sentence to former Cheney aide Scooter Libby. Libby was convicted of perjury and related offenses arising from the Special Counsel investigation into the leak of the fact that Valerie Plame was a covert CIA agent. However, as Lazarus points out, neither Libby nor anyone else has been charged with crimes based on the leak itself. Lazarus explains why, nonetheless, the U.S. Sentencing Guidelines (which are now advisory, not mandatory, for Judge Walton) advise taking into account not only the severity of the perjury offense, but the severity of other potential offenses that were investigated, but not charged.
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FindLaw columnist and Columbia law professor Michael Dorf explores the tensions within the Supreme Court's conception of its own role, as expressed in the Court's decision this week to dismiss as moot a case raising an important question regarding the U.S. Sentencing Guidelines. As Dorf notes, mootness is just one among a series of justiciability doctrines the Court uses to limit its own jurisdiction to cases that pose a concrete dispute between the parties, rather than an abstract issue of law. Yet on the other hand, the Court has made it clear that, in selecting which cases it will review, it looks not to the concrete consequences for the parties, but rather to the national importance of the question presented.
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FindLaw columnist and Brooklyn law professor Anthony Sebok evaluates a creative legal strategy employed by the ACLU on behalf of three men who allege that they were tortured after being sent, under the CIA's direction, to foreign prisons. Rather than suing the U.S. government, the men are suing Jeppesen Dataplan, a private company owned by Boeing that they claim arranged the flights that led to their "extraordinary rendition" and torture. The men are invoking the Alien Tort Statute (ATS), rather than proceeding under the Federal Tort Claims Act, and Sebok explains the probable reasoning behind this litigation choice. Sebok also compares and contrasts this case with an earlier ATS case resolved by the Supreme Court -- explaining why this case raises a question left open by the Court in its prior precedent.
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