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September 2007 - Posts
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FindLaw columnist, Rutgers law professor, and visiting Columbia law professor Sherry Colb asks whether the new 2007 Mental Health Parity Act, if enacted into law, will truly create parity, as between the way health plans cover physical health and mental health, respectively. In assessing the new Act as compared to its predecessor, the 1996 Mental Health Parity Act, Colb sees great improvement, deeming the 2007 Act to have moved much closer to the goal of parity. However, she also points out key reasons why true parity is still a goal to be aspired to for the future.
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FindLaw columnist and U.C. Davis law professor Vikram Amar offers a new perspective on the controversy over the decision to hire, decline to hire, and then once again hire eminent constitutional law professor (and past FindLaw guest columnist) Erwin Chemerinsky as the Dean of the newly-created UC Irvine law school. Amar discusses the legal, political, and economic circumstances that affect the fate and character of all the UC schools, including UC Irvine. In addition, Amar suggests that a Dean's unique role complicates the potential First Amendment issues raised when a school declines to hire a deanship candidate for political reasons.
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FindLaw columnist, attorney, and author Edward Lazarus discusses how the Supreme Court's upcoming case testing the constitutionality of lethal injection is likely to divide the Justices. Lazarus describes not only the results the individual Justices are likely to favor, but also the widely-differing theories of constitutional interpretation that will lead them to these particular results. He predicts that, as in many cases before the Court, Justice Anthony Kennedy may well be the swing vote -- but suggests Kennedy may be torn between his strong moral sense and his disinclination to open the gates to numerous other challenges to the death penalty and its methods.
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In the second in a two-part series of columns, FindLaw columnist and Cardozo law professor Anthony Sebok discusses another aspect of a New Jersey Supreme Court decision that removed class action status from a set of lawsuits relating to the drug Vioxx. The putative class action was composed of a set of suits by healthcare plans that allege they paid too much to purchase Vioxx for their clients in light of the company's failure to disclose its dangerous potential side effects. In this column, Sebok inquires whether the court was right to hold that the statutory requirement that the class action form be "superior" to individual adjudication was not satisfied here, because the plans could each easily have proceeded on their own with individual lawsuits.
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In this column, the last in a three-part series, FindLaw columnist and former counsel to the president John Dean continues to discuss issues relating to his best-selling book Conservatives Without Conscience, and his thesis that today's Republican Party is dominated by authoritarian personalities, in the roles of both leaders and followers. In this column, Dean discusses Newt Gingrich and Richard Nixon, classifying both as strong authoritarian personalities. He also assesses Nixon's and George W. Bush's contributions to the way the presidency is conceptualized today.
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FindLaw columnist and Columbia law professor Michael Dorf discusses the way the "butterfly effect" may apply to Supreme Court decisions. The phrase "the butterfly effect" describes the way a single incident or action can have a surprisingly great effect over time. Dorf considers some potential past "butterfly effect" cases such as Bush v. Gore, Buckley v. Valeo, and Roe v. Wade. In addition, he describes two cases the Court will decide in the Term that begins this October that may also create a "butterfly effect"; one concerns the controversial Military Commissions Act and whether it infringes detainees' habeas corpus rights, and another pertains to gun control laws.
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With this second column, FindLaw columnist and former counsel to the president John Dean continues a three-part series of columns relating to his best-selling book Conservatives Without Conscience. Dean's thesis is that both the leadership and membership of today's Republican Party are dominated by authoritarian personalities. In this column, he goes into detail regarding research by Professor Bob Altemeyer on both authoritarian followers and authoritarian leaders, and traces the historical roots -- going back to Alexander Hamilton -- of the authoritarian personality's influence on American government.
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FindLaw columnist and Cardozo law professor Marci Hamilton discusses a recent decision by the U.S. Court of Appeals for the Seventh Circuit, upholding the new plan for expansion of O'Hare airport even though it will involve the government's exercising the eminent domain power with respect to a church cemetery. Hamilton argues that the decision was the correct one, for neither Illinois' Religious Freedom Restoration Act, nor the U.S. Constitution, nor the Religious Land Use and Institutionalized Persons Act poses an impediment to the taking.
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FindLaw columnist, Rutgers law professor, and visiting Columbia law professor Sherry Colb considers the often-raised "consenting adults" argument against the criminalization of polygamy and prostitution. She asks how the law should respond when, in the real world, theoretical freedom of choice is often wholly or partially replaced by significant coercion that is brought to bear on the women involved in these practices. Colb contends that one way to respond to concerns about the mix of coercion and choice is to retain criminal penalties for these practices, but exempt the women at issue from their scope.
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FindLaw columnist and U. Washington law professor Anita Ramasastry considers the legality of Internet Service Providers (ISPs) deciding to do what Comcast did recently: terminate users deemed to be "bandwidth hogs." Ramasastry notes that such terminations are themselves legal, when covered by the company's Terms of Service. However, she predicts that courts may read reasonableness limitations into Terms of Service, regarding the number of days' notice customers must be given before they are terminated, and the degree of information customers must be given regarding precise what counts as being a bandwidth hog in the ISP's eyes. Nevertheless, Ramasastry predicts this issue will be solved through market differentiation, not litigation.
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FindLaw columnist and Hofstra law professor Joanna Grossman applies her expertise in wills, trusts, and estates to the unusual will of former hotel magnate and "Queen of Mean" Leona Helmsley. Grossman considers whether the will is likely to stand up in court despite Helmsley's decision to disinherit two of her grandchildren, yet bequeath millions in trust for the care and feeding of her beloved dog, Trouble.
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FindLaw guest columnist and attorney Mark Allenbaugh discusses an issue that has recently been making headlines: the safety of products imported into America. In particular, Allenbaugh assesses the six key policy prescriptions contained in the initial report issued earlier this month by the President's Interagency Working Group on Import Safety. Allenbaugh contends that while some of the report's points are correct, its policy prescriptions will not be truly effective unless one major revision is made. Since a hearing on the Report has yet to occur, he notes there is still time to make that revision.
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FindLaw columnist, attorney, and author Julie Hilden compares and contrasts the rationales behind attempts to carve out First Amendment exceptions for violent video games and sfor o-called "torture porn" films, respectively. Hilden focuses, in particular, on a recent California anti-violent-video-game statute, which created a test for "violent" video games whose three prongs directly paralleled the Supreme Court's classic test for obscenity. Although the statute was struck down on First Amendment grounds, Hilden contends that its borrowing of the classic obscenity test in the context of violence raises interesting questions about First Amendment doctrine.
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FindLaw guest columnist and U. Colorado law professor Scott Moss considers the fallout from U.C. Irvine Law School's decision to hire and then quickly fire eminent constitutional law scholar (and prior FindLaw guest columnist) Erwin Chemerinsky as its Dean. Moss contends that the firing -- which the evidence strongly suggests was done for political reasons -- will not only hurt the newly-created law school's reputation, but also threaten its accreditation. Moreover, Moss explains why the firing may violate both the U.S. and California constitutions.
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FindLaw columnist, attorney, and author Edward Lazarus comments on the recent attempts by Senator Larry Craig and Hollywood film director John McTiernan to take back their prior guilty pleas. Lazarus contends that, despite the unusual prominence of these two defendants, their cases are in a sense typical, and thus shed light on our country's system of plea bargaining. Lazarus explains why defendants may opt to plead guilty based on panic (Craig's claim) or despite the fact that evidence against them may have arisen from an unconstitutional search (McTiernan's claim).
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FindLaw columnist and Columbia law professor Michael Dorf comments on a recent holding by a federal district judge that the amended Patriot Act violates both the First and the Fourth Amendments. Dorf contends that the judge's opinion -- while unconvincing in some particulars -- is correct to treat the Bill of Rights in a holistic manner, recognizing that the protections of one amendment can inform the way the scope of another is interpreted.
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In the first in a two-part series of columns, FindLaw columnist and Cardozo law professor Anthony Sebok discusses the recent decision by the New Jersey Supreme Court refusing to certify, as a class action, a suit by a group of insurers. The insurers claim they paid too much to buy the drug Vioxx for their customers as a result of Merck's failure to disclose Vioxx's risks. Sebok explains why financial injury cases like this one often arise out of personal injury cases, and why financial injury cases have in the past often gained class action status.
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FindLaw columnist and Rutgers law professor Sherry Colb contends that even as we pat ourselves on the back, as a society, for punishing NFL quarterback Michael Vick harshly for his involvement in dogfighting, we should also consider the extent to which we may be hypocritical in doing so. Colb asks how, if we judge and punish Vick harshly for torturing and killing animals, the overwhelming majority of us can still continue to eat meat and other animal products, and to wear leather goods, in light of the cruelty through which all of these are produced. Colb contends that while we understandably love and cherish pets such as dogs more than we do the chickens and cows we raise for food, that provides no reason to treat the latter differently in this respect.
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foie gras production, from animal cruelty laws.
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FindLaw columnist, attorney, and author Julie Hilden discusses issues raised by the publication of O.J. Simpson's "If I Did It," his supposedly hypothetical account (thought by many to be not hypothetical at all) of what would have occurred had he committed the murders of his wife, Nicole Brown Simpson, and Ron Goldman. Nicole's sister Denise has called for a boycott of the book, even though the rights are now owned by Ron Goldman's family, not by O.J. Hilden explains how it is possible that the Goldman family can hold the book rights, even though the Supreme Court struck down as unconstitutional "Son of Sam" laws shifting crime-book proceeds to victims. She also sets out factors readers might want to take into consideration in deciding whether to join the boycott.
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Hein v. Freedom from Religion, Hamilton notes that Justice Alito appears to be an "incrementalist" in chipping away at the separation of church and state. In the L.A. Archdiocese clergy abuse settlement, Hamilton notes that the settlements are benefiting far more than the immediate survivors, it protects children and empowers other victims to come forward. And finally, Hamilton explains that the L.A. Archdiocese settlement was made possible by "window" legislation she supports, extending statutes of limitations for victims of childhood sexual abuse.
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With this column, FindLaw columnist and former counsel to the president John Dean begins a three-part series relating to his best-selling book Conservatives Without Conscience. In this column, Dean argues that to understand the contemporary Republican party, it is necessary to understand longstanding social science research, particularly the research of Professor Bob Altemeyer, regarding two types of authoritarian personalities: those of authoritarian leaders and those of authoritarian followers.
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FindLaw columnist and Hofstra law professor Joanna Grossman, and FindLaw guest columnist and University of Pittsburgh law professor Deborah Brake explain a number of doctrines the Supreme Court and/or lower courts have embraced that make it very difficult for genuine victims of employment discrimination to win their cases in court. They point out, as well, that some of these doctrines actually allow victims to suffer retaliation, without any remedy, when they attempt to stand up for their rights. Grossman and Brake contend that the doctrines are unfair, and often unrealistic in light of studies of how discrimination victims are likely to behave and proceed.
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