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July 2007 - Posts
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FindLaw columnist and human rights attorney Joanne Mariner discusses different definitions of what it means for a practice or belief to be "un-American," as defined by American figures ranging from Joseph McCarthy to Bill O'Reilly to Donald Rumsfeld. Mariner notes that even after Rumsfeld described the torture perpetrated at Abu Ghraib as "un-American," the U.S. has continued to condone torture. She argues that in the end, the term "un-American" should be defined in opposition to that which is best in American life -- including our regard for human rights. She encourages readers to sign a pledge to this effect, opposing what, she argues, are truly un-American practices such as indefinite detention and other rights violations.
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FindLaw columnist and Cardozo law professor Anthony Sebok discusses the U.K.'s new corporate manslaughter statute, which is designed to hold corporations criminally accountable when their gross negligence results in death. Sebok describes the statute's penalties, considers the high-profile U.K. torts that may have prompted its passage, and contrasts the British and American tort and criminal justice systems with respect to the ways in which they each address corporate responsibility.
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FindLaw guest columnist and University of Richmond law professor Carl Tobias contends that the Department of Justice is in a sorry state, and suggests ways that can be remedied -- whether or not Attorney General Alberto Gonzales resigns. Tobias covers recent developments in the U.S. Attorney scandal, assesses the scandal's effect on both DOJ itself and local U.S. Attorney's Offices, and suggests how to boost morale.
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FindLaw columnist and Columbia law professor Michael Dorf discusses a New York controversy that is directly parallel to the federal controversy over the firing of U.S. attorneys -- but that occurs, as Dorf explains, in a somewhat different legal context. The New York controversy revolves around an investigation initiated by aides to Democratic Governor Eliot Spitzer, targeting Republican New York Senate majority leader Joseph Bruno. Spitzer says the aides were acting independently of him, but Bruno is seeking testimony before hte State Senate, including from Spitzer himself, on the matter. Spitzer, however, says the State Senate has no authority to do so.
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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, comments on the recent decision regarding Guantanamo detainees' rights issued by the U.S. Court of Appeals for the D.C. Circuit. Hafetz explains why the decision's results were mixed, and argues that, in the end, the Bush Administration's Combatant Status Review Tribunal (CSRT) process is so deeply flawed, attempts to try to make it conform to due process and/or give rise to reliable results are inherently doomed to failure.
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FindLaw guest columnists David Leib, a UC Hastings law professor, and David Ponet, a political scientist, discuss the question of what ethical obligations Congresspersons and Senators have when a significant number of their constituents formally and informally call for the President's and Vice-President's impeachment. With a large set of towns and cites, including San Francisco, and the State of Vermont having expressed this view through resolutions, the question, Leib and Ponet point out, is no longer an abstract one.
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FindLaw columnist and U. Washington law professor Anita Ramasastry discusses the proposal by a group of state attorneys general -- in the wake of MySpace's revelation that its profiles included those of a shocking 29,000 sex offenders -- to require sites like MySpace to gain parent consent before hosting young people's profiles, and to verify the parents' age and identity. Ramasastry discusses the proposal against the backdrop of other relevant federal and state laws, and considers the various ways that the verification requirements might be circumvented.
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Following up on her prior column examining the rationales for the position that abortion should be illegal, but that there should be an exception when the pregnancy results from rape, FindLaw columnist Sherry Colb discusses the position that abortion should be illegal, but that there should be an exception when the pregnancy results from incest. As with the "rape exception," Colb contends that the rationales for being pro-life, yet supporting the "incest exception," are, once closely examined, much less simple and straightforward than they appear.
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FindLaw columnist and U. Washington law professor Anita Ramasastry describes the FBI's STAR program, which was the subject of a recent Justice Department report to Congress. The program's purpose is to assign risk scores to possible foreign terrorism suspects and their suspected U.S. associates, using computer algorithms that draw on a vast database of information. Ramasastry isolates two potential problems with the program: It will rely on private-sector data that may contain inaccuracies, and it may threaten individual privacy by allowing searches that collect private information, yet are not deemed to fall within the Fourth Amendment's reach.
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FindLaw columnist and former counsel to the president John Dean argues that, despite the recent ruling dismissing the lawsuit by Valerie Plame and Joseph Wilson against Vice-President Cheney and others, the Wilsons are victors in a larger sense. Dean cites as evidence all the information that has been made public as a result of Joseph Wilson's decision to publish a New York Times Op Ed disputing President Bush's State of the Union Niger-uranium claims, and as a result of the ensuing Special Counsel investigation into the disclosure of his wife Valerie's status as a covert CIA agent.
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FindLaw columnist and human rights attorney Joanne Mariner discusses an executive order recently issued by President Bush. The order purports to determine that the CIA's system of secret prisons "fully complies" with the U.S.'s Geneva Conventions obligations -- as long as the CIA itself complies with a series of requirements regarding interrogation practices and conditions of confinement. Mariner contends that the order wrongly ignores a key Supreme Court ruling, and is in clear error with respect to international law. She contends that the secret prisons program will continue to plainly violate the U.S.'s Geneva Conventions obligation, despite the executive order's claims. She also criticizes the executive order for purporting to impose a definition of "enemy combatant" even broader than those the Administration used in the past.
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FindLaw columnist and U. Washington law professor Anita Ramasastry describes the FBI's STAR program, which was the subject of a recent Justice Department report to Congress. The program's purpose is to assign risk scores to possible foreign terrorism suspects and their suspected U.S. associates, using computer algorithms that draw on a vast database of information. Ramasastry isolates two potential problems with the program: It will rely on private-sector data that may contain inaccuracies, and it may threaten individual privacy by allowing searches that collect private information, yet are not deemed to fall within the Fourth Amendment's reach.
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FindLaw columnist and U.C. Hastings law professor Vikram Amar looks back over the past Supreme Court term with an eye toward the Court's use of precedent. In particular, he cites instances in which, he argues, the Court read precedent selectively; failed to acknowledge that it was, in effect, overruling past cases; or decided to rely upon past cases that, themselves, failed to be coherent and principled.
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FindLaw columnist, attorney, and author Edward Lazarus discusses how the outcome of the 2008 election may affect the Supreme Court. Pointing out that the only three Justices who seem at all likely to retire between now and 2016 all belong to the Court's liberal wing, Lazarus concludes that unless Democrats occupy the White House for three straight terms, it is likely that the retirement of one or more Justices will further entrench and solidify the current Court's conservative bent. Moreover, he notes, if a liberal Justice retires and is replaced by a conservative, Justice Anthony Kennedy may lose his prime position on the Court as a frequent "swing vote" in close cases.
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FindLaw columnist and Columbia law professor Michael Dorf considers the effect of the revision of Federal Rules of Civil Procedure -- emphasizing clarification and simplification -- that is set to take effect this December. Dorf explains the origins of the rules, the role of the Rules Advisory Committee, the relevance of the supersession clause of the Rules Enabling Act, and possible interpretive issues that may arise as a result of the revision and how to solve them.
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FindLaw columnist and Brooklyn law professor Anthony Sebok comments on the appellate oral argument in a case arguing that Big Tobacco violated federal anti-racketeering laws when it allegedly marketed "lights" cigarettes claiming they were safer than regular cigarettes but knowing that, in real-world tests, they were not. Sebok discusses why an innovative theory of damages was necessary to make this case winnable; why a class action was certified by District Court Judge Jack Weinstein; and why a three-judge panel of the U.S. Court of Appeals for the Second Circuit may well reverse Weinstein's ruling. Part of Sebok's reason for expecting an unfavorable decision from plantiffs' perspective is a decision by counsel that he deems a serious tactical error.
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Beginning today, July 16, SoundExchange, the radio-royalty-collection arm of the RIAA, has the right to exact expensive statutory license fees, applying retroactively, from thousands of Internet radio providers and hundreds of thousands of stations. That right was affirmed by the Copyright Review Board, and a federal court declined to intervene on behalf of the stations and providers. So why hasn't SoundExchange moved forward to enforce the right? FindLaw guest columnist, RealNetworks Senior Counsel, and intellectual property expert Cecily Mak explains the likely reasoning behind SoundExchange's decision to hold off and continue to negotiate. She also considers how this dispute may affect the way in which similar conflicts are resolved in the future.
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FindLaw columnist, attorney, and author Julie HIlden discusses the idea of "torture porn," frequently invoked in relation to recent movies such as "Hostel II" and "Captivity." Hilden argues that, from a free speech perspective, it's unfortunate that the recent tendency to equate depictions of sex and violence in movies -- as the phrase "torture porn" does -- has sparked a crackdown on depictions of violence, rather than relaxing the regulation of depictions of sex. She also contends that if one looks more carefully at movies like "Hostel" and "Hostel II," they are hardly promoting violence; indeed, their strong heroes and heroines fight against violence, and the villains who use violence are depicted as weak and pathetic. Finally, she questions whether the "clean" violence of shoot-'em-ups should be preferred over the more realistically gory violence of such films.
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Can President Bush get away with instructing former White House Counsel Harriet Miers to disobey a House Judiciary Committee subpoena ordering her to appear to provide testimony relating to the U.S. Attorney scandal? FindLaw columnist and former counsel to the president John Dean points to one tactic -- last invoked in 1934 -- that Congress could use to force compliance. He also suggests how this inter-branch standoff may play out if that tactic is not employed.
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FindLaw columnist and Rutgers law professor Sherry Colb discusses potential justifications for the position, held by many who describe themselves as "pro-life," that, while abortion should be illegal, an exception should be made in instances where the pregnancy is the result of rape. Colb compares and contrasts these arguments with the argument in favor of a general ban on abortion coupled with a "life of the mother" exception.
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FindLaw columnist and Hofstra law professor Joanna Grossman, and FindLaw guest columnist and University of Pittsburgh law professor Deborah Brake, together argue that Congress should pass a statute effectively reversing the recent, 5-4 Supreme Court Ledbetter decision regarding employment discrimination. Grossman and Brake explain why they believe the decision -- which opted for the harshest of three possible rules as to when a pay discrimination claim is timely -- will put an end to many legitimate and serious claims, unless Congress intervenes. In their analysis, Grossman and Brake draw upon Justice Ruth Bader Ginsburg's dissent in Ledbetter, which, they note, is especially relevant in light of the Justice's noted prior career of litigating sex discrimination issues.
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FindLaw columnist, attorney, and author Julie Hilden discusses the Supreme Court's decision in the now-famous case involving a public school student who held up a "Bong Hits 4 Jesus" banner at a rally on a town street that his class had been let out early to attend. The Supreme Court upheld his punishment by his school, despite First Amendment objections. Hilden argues that, though Justices Kennedy and Alito attempted to cabin the effects of the ruling in a joint concurrence, that won't be possible -- for the distinction they and the rest of the five-Justice majority made, claiming the banner fell outside "political debate," is untenable and unstable. Hilden also considers what effect the Supreme Court's decision may have upon decisions by the federal appellate courts -- focusing in particular on a recent Second Circuit decision.
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FindLaw book reviewer and Northwestern law professor Kimbery Yuracko weighs in on FindLaw columnist and Rutgers law professor Sherry Colb's recent book, "When Sex Counts: Making Babies and Making Law." Yuracko argues that Colb's version of feminism, as expressed in her discussions of reproductive rights and related issues, is to be highly praised -- because it provides both a nuanced, insightful theoretical framework with which to analyze such issues, and also specific, real-world answers that take into account realities about incentives and how people tend to behave.
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FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses both the practical significance of the Supreme Court's recent ruling on taxpayer standing to challenge alleged Establishment Clause violations, and how this ruling and others reflect on the nature of the Roberts Court. Amar considers, for example, both Justice Kennedy's pivotal role at the Court, and what he deems an unfortunate tendency to look to precedent over principle when drawing constitutional lines.
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FindLaw columnist, attorney, and author Edward Lazarus argues that President Bush's decision to commute former Cheney aide Scooter Libby's sentence is indefensible, even if one accepts Republican critiques of the sentence. In support of his argument, Lazarus invokes the Administration's decision to flout DOJ Guidelines regarding commutations, and notes that even if one believes that Libby's sentence was too long in light of the crimes of which he was convicted, the proper solution was to shorten his prison time, not erase it entirely.
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FindLaw columnist and Brooklyn law professor Anthony Sebok discusses the recent decision by a D.C. Superior Court judge dismissing a conversion and consumer fraud suit against a drycleaner's. The lawsuit, Pearson v. Chung, (nickname the "pants suit" since a pair of the customer's pants was at issue) has widely been help up as an example of frivolous litigation. Sebok uses the case as a vehicle to explore questions such as: Are we in the midst of an epidemic of suits brought to coerce "nuisance value" settlements? Do suits brought by lawyers (the plaintiff in the D.C. suit was not only a laywer, but himself a judge) pose a special threat of being frivolous, since lawyers may be able to very effectively represent themselves? And why isn't Rule 11 -- designed specifically to allow judges to sanction frivolous suits -- effective?
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FindLaw columnist and Columbia law professor Michael Dorf examines the reasons behind the 5-4 split in the Supreme Court's recent decision regarding racial integration in public schools. The Court held that Seattle and Louisville school boards violated the Equal Protection Clause when they opted for particular programs that took students' race into account as a factor in school assignment, in order to try to mirror the district's racial balance within particular schools. Dorf explains why the practical impact of the decision is unclear, in light of swing Justice Anthony Kennedy's narrow objection to aspects of these programs in particular (but not necessarily all such programs). Dorf also considers the freighted question of which side of the Court's divide honored, and which betrayed, the legacy of Brown v. Board of Education.
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FindLaw columnist and University of Richmond law professor Carl Tobias argues that Attorney General Alberto Gonzales should appoint a new Deputy Attorney General as soon as possible, in the wake of the resignation of Paul McNulty. After recapping the developments in the U.S. Attorney firing scandal that led to McNulty's resignation, Tobias stresses the need for a Deputy AG candidate who is experienced, well-respected, and can act to stabilize a trouble Department of Justice. He suggests, in particular, U.S. Attorney for the Eastern District of Virginia Chuck Rosenberg, who also has significant prior experience in the Bush Administration, including within the Department of Justice.
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