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August 2007 - Posts
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FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses UCLA law professor Richard Sander's controversial work on affirmative action by law schools. Sander considers the results when, as a result of affirmative action, minority candidates are admitted into law schools whose students' average college GPAs and LSAT scores are significantly higher than their own. Are these "mismatched" candidates ultimately harmed by receiving grades lower than those of their classmates, and lowering their chances of passing the bar? Amar argues that, whatever view one takes, more objective information would be helpful, and thus, state bars should cooperate with Sander and other scholars who have requested statistical information regarding students' college and law school GPAs, LSAT scores, and bar passage rates, and the average GPAs and LSAT scores for their law schools.
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FindLaw columnist, attorney, and author Edward Lazarus discusses what the nation's top priorities should be in the wake of the resignation of Attorney General Alberto Gonzales. Lazarus contends that the first priority should be a substantive public debate about the liberty/security tradeoffs in the "war on terror," and the secrecy that currently limits the public's knowledge. The second priority, he contends, should be finding a new Attorney General who will head a renewed and far less partisan Department of Justice. The third and last priority, Lazarus suggests, should be the ongoing investigation into the scandals of Gonzales's tenure -- which, while significant, will be of limited aid in deciding what to do as we go forward.
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FindLaw columnist and Loyola (Los Angeles) law professor Richard Hasen discusses major legal issues relating to Election 2008 and suggests potential solutions. Hasen critiques a public financing system that has led candidates to rely entirely on private financing, a primary system that has left states in a race to see which will hold the earliest primary, and the ongoing debate about whether states should allocate their Electoral College votes to Presidential candidates proportionally, or via a winner-take-all system.
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FindLaw columnist and Columbia law professor Michael Dorf discusses the resignation of Attorney General Alberto Gonzales, arguing that Gonzales himself -- not politics, as President Bush suggested -- was responsible for his fate. Dorf contends that while many saw Gonzales as a bungler, he is better described as a hard-core ideologue -- one willing to rely even on interpretations of the law that the Supreme Court had already rejected. In addition to critically assessing Gonzales's tenure, Dorf also makes recommendations as to how the next Attorney General can best improve the somewhat troubled Department of Justice that Gonzales leaves behind.
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FindLaw columnist and U. Washington law professor Anita Ramasastry discusses an L.A.-based federal judge's recent decision to preliminarily enjoin spammer "Spamford" Wallace from continuing to send unsolicited commerical email to MySpace users. At issue was the applicability of the federal CAN SPAM Act to messages sent internally among users on a particular site. Ramasastry contends that the judge made the correct decision, and notes that a high-dollar settlement in another, similar case involving MySpace should also lead spammers to beware.
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FindLaw columnist and Cardozo law professor Anthony Sebok discusses a recent ruling by U.S. District Judge Jack Weinstein, allowing a suit by New York City against fifteen out-of-state gun dealers to go forward. Former Senator Fred Thompson, who seems likely to become a Presidential candidate, used the ruling to criticize Presidential candidate Rudolph Giuliani's stance on Second Amendment gun control issues. Sebok contends that the gun control issues with which Giuliani, as a former New York mayor, was involved actually should triggered more Fourth Amendment than Second Amendment concerns. However, Sebok also notes that Thompson brings up a valid general point regarding guns and the liberty/security tradeoff.
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FindLaw guest columnist, attorney, and author Elaine Cassel argues that the guilty verdict in the Jose Padilla case should be far from the end of the inquiry into the issues Padilla's case raised. Padilla, once labeled a "dirty bomb" conspirator by then-Attorney General Ashcroft, was tried and convicted recently in Miami federal court on charges that made no mention of a "dirty bomb." Cassel contends that among the questions that remain to be answered are those concerning the treatment Padilla received during his three-and-a-half-year-long detention as an "enemy combatant"; why apparent government misconduct regarding the case did not result in sanctions; and whether Congress should reign in the Executive's ability to broadly assert the "state secrets" privilege.
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Why is key presidential advisor Karl Rove leaving the Bush Administration at this particular moment? FindLaw columnist and former counsel to the president John Dean considers possible explanations. Dean suggests Rove's decision may be connected not only to his declining to appear to testify before Congress, citing executive privilege, but also to a possible fear on Rove's part that, unless he keeps a low profile, Congress will discover the extent to which Rove injected partisanship into the Bush Administration, even in areas that should have remained free of it. Dean raises a potential parallel between the Bush and Nixon Administrations in this respect, and considers whether Rove's possible conduct may not only have been overly partisan, but also run afoul of federal criminal statutes, and if so, whether it should lead to prosecution.
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FindLaw guest columnist, UNLV law professor, and insurance law expert Jeff Stempel takes issue with Adam Scales's two-part critique, previously published on this site, of a landmark Washington Supreme Court insurance law decision. The case was based on an incident in which a Washington State dentist implanted faux-boar-tusks in an anesthetized patient's mouth and photographed her in that state. Stempel deems the case an instance of intentional conduct causing unintentional injury, and argues that, for this reason, the Court was right to hold that the insurer was obligated to defend the dentist against the patient's suit.
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FindLaw columnist and Rutgers law professor Sherry Colb continues her series of columns addressing the justifications for supporting various exceptions to abortion laws, yet otherwise assuming a "pro-life" viewpoint. Having previously considered the justifications for exceptions for pregnancies resulting from rape and incest, respectively, Colb now considers a different kind of exception: An exception from prosecution under the criminal law for women who opt to have illegal abortions. Colb considers whether it makes sense for one who holds a pro-life position to support this exception either under the criminal law doctrines of justification and excuse, or pursuant to the belief that the woman herself is a victim.
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FindLaw columnist, attorney, and author Julie Hilden discusses a recent decision by the U.S. Court of Appeals for the Second Circuit to uphold a district court's preliminary injunction against the further dissemination of TV ads on behalf of DIRECTV that attacked competitor Time Warner Cable (TWC)'s picture quality. The district court deemed the ads, which featured Jessica Simpson and William Shatner, either false or misleading, in violation of the Lanham Act's prohibition on false advertising. Hilden takes issue both with the level of deference the appellate court accorded to the district court's interpretation of the ads at issue, and with the appellate court's allowing a injunction to silence First-Amendment protected speech even before the merits of the case were litigated. In addition, she urges courts to take into account the ease of consumers' accessing accurate information on the Internet in cases like this one.
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FindLaw columnist Joanna Grossman and FindLaw guest columnist Alafair Burke, both Hofstra law professors, discuss the consequences of a new generation's getting schooled in the law by celebrity lawsuits -- the documents and details of which now appear almost instantly online. Grossman and Burke argue that there's a serious generation gap here, especially for lawyers: While those who graduated from law school in the early 90s got a cursory introduction to law via The Paper Chase and "L.A. Law," today's attorneys have grown up with easy Internet access to the real-life legal documents in celebrity cases. Grossman and Burke use specific cases -- such as those of Anna Nicole Smith's will and Lindsay Lohan's DUI -- to illustrate the gap.
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FindLaw guest columnists Mark Allenbaugh, a former staff attorney for the U.S. Sentencing Commission, and Frank Larry, a former Deputy Director of the U.S. Sentencing Commission's Office of Education and Sentencing Practice and probation officer, weigh in on the likely sentence star quarterback Michael Vick will face if he is convicted of, or pleads guilty to, federal charges of conspiracy to engage in racketeering and dog-fighting. Allenbaugh and Larry cover issues such as whether the gambling and dog-fighting aspects of the case will be seen as constituting separate crimes for sentencing purposes, and whether a crime against an animal is seen to constitute a "crime of violence" within the meaning of the relevant legal sources.
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FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses a proposed initiative in California that would change the state's winner-take-all system for electoral college votes. Under the proposed system, electoral college votes would be allocated proportionally to each party, based on the split in the state's popular vote. Amar contends that the new proposal is a thinly-veiled partisan gambit, and that while its supporters claim that it will cause candidates to campaign more heavily in California, in reality it will not.
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FindLaw guest columnist and U.Colorado law professor Scott Moss weighs in on two recent lawsuits involving radio personality Don Imus, who was famously fired by CBS Radio for calling the members of the Rutgers women's basketball team "nappy-headed hos" on his program. The first suit was brought by Imus against CBS, to challenge the firing; it has now been settled. The other suit was brought by Rutgers basketball player Kia Vaughn against Imus, for defamation, on the theory that his comment falsely suggested she was unchaste; it is still pending. Moss argues that while our sympathies should lie strongly with Vaughn and against Imus, the law's perspective is very different. Based on law alone, he says, Imus was right about his contract, and Vaughn is wrong about having a meritorious defamation suit.
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FindLaw columnist, attorney, and author Edward Lazarus employs John Rawls's concept of the "veil of ignorance" -- in this case, postulating a veil obscuring one's party loyalty -- to consider which structural rules for government would be chosen if party affiliation were not an issue. On a number of issues, including a series relating to the Department of Justice and to confirmation proceedings for federal judicial nominees, Lazarus suggests that consensus would be very possible if the relevant players put party loyalty aside.
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In Part Two of a two-part series of columns, FindLaw guest columnist, Washington and Lee law professor, and insurance law expert Adam Scales continues to offer both serious commentary and a humorous perspective upon a highly unusual insurance law case. The case arose when a Washington State dentist photographed a sedated patient after implanting faux-boar-tusks in her mouth. In this Part of the series, Scales examines how the dentist's insurance company ended up paying a million dollars to the dentist -- even though the dentist had only settled with the patient for $250,000 and even though it seemed dubious at the outset whether the incident fell within the professional liability policy.
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FindLaw columnist and human rights attorney Joanne Mariner discusses recent instances of two countries -- El Salvador and Britain -- invoking broad counterterrorism laws as an excuse to crack down on legitimate social protest. Though the targets of the protests were a water decentralization plan and global warming, respectively, the laws invoked against the protesters were specifically intended to address acts of terrorism. Mariner argues that police had ample authority and power to control any lawbreakers among the protesters without resorting opportunistically to using the counterterrorism laws to impose harsher penalties and bypass important procedural requirements. She also notes that most other countries' counterterrorism are similarly broad and similarly open to abuse.
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In Part One of a two-part series of columns, FindLaw guest columnist, Washington and Lee law professor, and insurance law expert Adam Scales offers a humorous take on an insurance law case with shocking facts and an even more shocking result. The case arose when a Washingont State dentist photographed a sedated patient after implanting faux-boar-tusks in her mouth. Although the dentist's insurer deemed the tort to fall outside his professional liability policy, the Washington Supreme Court held that the insurer was in error, and should have defended the dentist for his so-called practical joke.
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FindLaw columnist and Cardozo law professor Anthony Sebok discusses a suit recently filed in Israel seeking compensation on behalf of the children of Holocaust victims. Sebok isolates two aspects of the case: Its reliance on psychological injury, and its attempt to recover for long-past torts. Drawing on cases regarding the drug DES and lead paint, Sebok points out that there is significant precedent for plaintiffs recovering for the consequences of torts that preceded their birth. The more difficult aspect of the case, he notes, concerns the solely psychological injury -- post-traumatic stress disorder -- that the plaintiffs allege they suffer. Sebok also notes that the suit's progress and outcome may be relevant to U.S. cases seeking compensation for the slavery of African-Americans.
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FindLaw columnist and Columbia law professor Michael Dorf discusses a recent, split Supreme Court decision that, while it has attracted little media attention, has made a tremendous splash in the lower federal courts. The decision grapples with the question of what standard should govern a federal trial court's review of the sufficiency of the allegations of a complaint -- generally, and especially in the antitrust context. Dorf notes that the current Court, while otherwise highly-qualified, contains not a single former trial court judge, and thus that the Court may be relatively weak in its ability to judge what rules of pleading may be best as applied in a trial court setting in particular cases.
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FindLaw columnist and former counsel to the president John Dean discusses the recently-enacted Protect America Act, which gives the President greater surveillance power by enacting sweeping changes to the Foreign Intelligence Surveillance Act. Dean argues that the law not only infringes privacy, but also allows the expansion of executive power. He contends that if Congress does not curtail the law's scope when it is renewed (for it sunsets quickly), its members will pay the price at the polls.
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FindLaw columnist and U. Washington law professor Anita Ramasastry weighs in on a significant decision from the U.S. Court of Appeals for the Ninth Circuit regarding contract law and consumers' rights. As Ramasastry explains, the Ninth Circuit applied black-letter contract law to hold that a company cannot unilaterally change a contract with customers, while providing no notice of the change other than by posting the revised contract on its website. Ramasastry points out, however, that the court did not reach several other questions -- such as precisely what is sufficient, in terms of notice and customer acceptance, for such changes to be valid.
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FindLaw columnist, attorney, and author Julie Hilden discusses the law currently pending before Congress that would create a federal reporter's privilege, allowing reporters to shield confidential sources unless certain conditions are met. Hilden discusses the law's national security exception and how that exception may be applied. In addition, she argues that the law should be amended to more explicitly cover bloggers who are engaged in journalism.
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FindLaw columnist and Hofstra law professor Joanna Grossman discusses an Ohio Supreme Court case in which a criminal defendant tried to use the Ohio Constitution's anti-same-sex-marriage amendment to defeat the domestic violence charges against him. The defendant argued that, by treating cohabiting couples like married couples, the domestic violence statute violated the amendment's prohibition on conferring a marriage-like "legal status" on non-marriage relationships. Grossman discusses the advent of Ohio's and similar amendments, and explains why they are likely to have unintended consequences, as Ohio's did in this case.
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FindLaw guest columnist and attorney Mark Allenbaugh considers different regulatory strategies to curb the number of U.S. products liability lawsuits involving goods made in China. Allenbaugh contends that rather than the U.S.'s pushing China to regulate its manufacturers, the most effective strategy is for U.S. importers to put pressure on their Chinese suppliers to create a "culture of compliance," and for the U.S. government to offer assistance in that endeavor.
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FindLaw columnist and Rutgers law professor Sherry Colb discusses whether there is any way, through the legal system, to address parents' concerns about Jack McClellan, who blogs about his sexual interest in little girls and calls readers' attention to places where large numbers of children can be found. Parents have fought back by attempting to track McClellan's whereabouts, but can more be done without violating the Constitution? Colb surveys the legal terrain, and notes that, in fact, if McClellan's blog is properly categorized as a map for child molesters, legal remedies may indeed be available.
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FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses a recent California Supreme Court case holding that federal law regarding endangered species does not preempt California from refusing to accept imports of kangaroo (a species that is no longer designated by the federal government as threatened, but has been in the past). Amar explains the rationale for the California decision, and notes that the U.S. Supreme might not only strongly disagree, but also opt to grant review to reverse the California's courts holding in this matter. As Amar explains, the High Court has not been receptive to states' claims to be able to regulate in areas the federal government has touched upon, even when there is no true conflict between state and federal regulation.
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FindLaw guest columnist, attorney, and author Elaine Cassel discusses Supreme Court Chief Justice John Roberts's recent seizure and its implications. In connection with this recent seizure, the public also learned for the first time of a prior seizure Roberts had suffered -- one that preceded both his confirmation for a federal appeals court position and his current position as Chief Justice. Cassel contends that while Roberts's possible epilepsy, suggested by his now having had two seizures is unlikely to affect his ability to function effectively on the Court, the public should, in generally be legally entitled to be informed about the medical condition of both Supreme Court nominees and sitting Justices.
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