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October 2007 - Posts
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FindLaw columnist Marci Hamilton predicts an upcoming battle, as same-sex married couples eventually challenge the way they are treated by religious organizations. Hamilton contends that religious organizations have no consitutional right to seek an exclusion from generally-applicable laws such as laws against discrimination in employment, fair-housing laws, and public accommodation laws. However, she notes that legislatures have the power, if they so choose, to carve out exceptions for religious entities, and predicts this may be a major future battleground for debate and litigation.
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Not only did the Fox animated show "The Family Guy" use the copyrighted song "When You Wish Upon a Star" without a license, but it did so in an episode, "When You Wish Upon a Weinstein," that some say is anti-Semitic. A copryight infringement lawsuit ensued, and here, FindLaw columnist, attorney, and author Julie Hilden examines whether "The Family Guy" should prevail. Hilden contends that while a claim of "fair use" based on the right to parody provided a strong defense in a prior copyright suit brought against the show by Carol Burnett, that defense is much weaker here.
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FindLaw columnist and Hofstra law professor Joanna Grossman discusses an upcoming Supreme Court case that will determine what procedures a plaintiff must follow in order to successfully invoke his or her rights under the Age Discrimination in Employment Act (ADEA). Grossman explains why the issue has divided federal judges, and notes that -- unlike in another recent Supreme Court case involving discrimination -- this time the Solicitor General has sided with the plaintiffs. She contends that the Court, too, should side with the plaintiffs.
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FindLaw columnist, visiting Columbia law professor, and Rutgers law professor Sherry Colb discusses why the U.S., unlike so many other nations, sentences adolescent offenders to life without parole. Indeed, Colb notes, twenty U.S. states allowed the execution of adolescent offenders until the Supreme Court held in 2005 that such executions are unconstitutional. Colb considers possible answers to the question of why, on one hand, we recognize adolescents' immature decisionmaking powers with parental consent regulations for abortions and age requirements for voting and drinking, yet, on the other hand, we seem to consider adolescents mature enough to face maximum penalties when they commit criminal offenses.
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FindLaw columnist and U.C. Davis law professor Vikram Amar discusses a case that an eleven-judge en banc panel of the U.S. Court of Appeals for the Ninth Circuit will soon rehear, after a three-judge panel ruled that Indian tribes had a right to block a U.S. Forest Service'sdecision under the federal Religious Freedom Restoration Act (RFRA). Amar explains thecomplex evolution of the related precedents and statutes, and considers the issues raised.
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FindLaw columnist and U. Washington law professor Anita Ramasastry discusses an interesting case in which a Dallas teen is suing Virgin Mobile America for using her photo in a cellphone ad without her permission. The photo had been posted on the photo-sharing site Flickr under a Creative Commons license. However, as Ramasastry points out, the photographer who agreed to the license could not waive the teen's right against commercial appropriation of her image. Ramasastry thus deems the teen's suit against Virgin Mobile strong, but also deems her suit against Creative Commons weak.
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FindLaw columnist and human rights attorney Joanne Mariner discusses the U.N. Security Council's evolving position on counterterrorism and the risk it poses of infringing human rights. Mariner notes that in the wake of the 9/11 attacks, the Security Council established a Counter-Terrorism Committee, but notes also that the relevant revolution failed to even mention human rights, except in the narrow context of refugees. She contends that since then, the Security Council has emphasized security at the cost of human rights, closing its eyes to the rights violations counterterrorism policies cause. Mariner adds that while signs such as a subsequent resolution mentioning human rights, and a recently-created post for a human rights officer are hopeful, much more progress needs to be made.
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FindLaw columnist and Cardozo law professor Anthony Sebok discusses a recent, interesting decision by a panel of the U.S. Court of Appeals for the Second Circuit, regarding "aiding and abetting" liability under the Alien Tort Claims Act (ATCA). As Sebok explains, a key issue was whether the test as to whether such liability has been established should come from the Restatement of Torts or the Rome Statute of the International Criminal Court.
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FindLaw columnist and Columbia law professor Michael Dorf takes on the issue of what the best way is to interpret a given text -- by reference to author's intent, contemporaneous public understanding, or simply the words of the text itself. In addition to considering how this issue arises in the debate over the role of "original intent" in interpreting the Constitution, Dorf also considers the issue in the context of a literary revelation currently making headlines: "Harry Potter" author J.K. Rowling's disclosure that she intended one of her characters to be gay, even though her books do not make that clear.
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FindLaw columnist and former counsel to the president John Dean argues against Congress's expanding domestic surveillance powers under the Foreign Intelligence Surveillance Act (FISA). In addition, Dean argues that Congress should not immunize those telecoms that cooperated with Bush Administration requests regarding surveillance and may therefore be subject to federal criminal penalties. More generally, Dean draws upon the work of George Washington law professor Daniel Solove to seek to rebut the argument that those who have nothing to hide are not harmed by government surveillance.
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FindLaw columnist and Cardozo law professor Marci Hamilton calls on Presidential candidate and former New York mayor Rudy Giuliani to fire his friend and employee Alan Placa, a priest whom a grand jury has accused of both molesting boys and covering up abuse committed by others. Hamilton contends that, rather than protecting Placa, Giuliani should be leading the charge for justice for survivors of childhood sexual abuse.
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FindLaw guest columnist and U. Richmond law professor Carl Tobias outlines specific questions that he argues should be asked during the confirmation process for Michael Mukasey, President Bush's new Attorney General nominee. Tobias's suggested questions pertain to how and where terrorism suspects should be tried, how the Department of Justice can avoid being overly politicized, policies regarding domestic surveillance and interrogation techniques, and how much power the Executive should be seen as unilaterally wielding under the Constitution.
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FindLaw columnist, attorney, and author Julie Hilden continues her two-part series on the extent to which the First Amendment and the Copyright Clause may prevent Congress from revising traditional copyright law protections. Here, in Part Two, Hilden considers whether Congress can act to sweep works that had previously fallen into the public domain back under the protective umbrella of copyright law. In addition, she considers the tension between the rights and interests of original authors and those of derivative users -- that is, persons who want to employ others' original works in their own creative enterprises.
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FindLaw columnist and U. Washington law professor Anita Ramasastry discusses a recently-enacted California law prohibiting employers from forcing their employees to have Radio Frequency Identification Device (RFID) chips implanted under their skin. Ramasastry argues that the law is both necessary and the right policy choice, and that other states should follow suit. Responding to libertarian arguments that employees should be allowed to contractually agree to accept RFID chips, Ramasastry contends that, under the circumstances, employees' choice is likely to be far from voluntary.
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FindLaw guest columnist, visiting Saint Louis University law professor, and FIU law professor Howard Wasserman comments upon the civil suit brought by the three Duke lacrosse players wrongly targeted by D.A. Michael Nifong for alleged rape, seeking damages for violation of their constitutional rights. Wasserman discusses how doctrines of immunity may interfere with the suit's success, but predicts a significant settlement nonetheless. In addition, he notes that while the plaintiffs may not be legally entitled to reforms regarding the operations of the D.A.'s office, they may well receive just such reforms as a component of their settlement.
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FindLaw columnist, Rutgers law professor, and visiting Columbia law professor Sherry Colb discusses an interesting case, recently decided by the U.S. Court of Appeals for the Third Circuit, and the provocative question it raises: When does pregnancy begin? The case arose when a 16-year-old girl received a "morning after" pill from a Philadelphia clinic. Her parents sued on their own behalf and hers, arguing that the clinic should have told their daughter that the pill could prevent a fertilized egg from implanting inside her uterus -- which, according to their religious beliefs, constitutes abortion. Colb argues that the Third Circuit panel was right to dismiss the case. In addition, she considers when stopping a chain of events that could eventually lead to a birth does, and does not, constitute terminating a pregnancy.
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FindLaw columnist and U.C. Davis law professor Vikram Amar discusses the constitutionality of laws that favor in-state wineries, wine distributors, and wine sellers, respectively. In particular, Amar focuses on a recent decision by a New York-based federal judge upholding a law favoring in-state companies, but notes that the decision may conflict with a Supreme Court precedent on the matter.
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FindLaw columnist and U. Washington law professor Anita Ramasastry discusses the recent controversy over Verizon's decision to block pro-choice group NARAL from reaching Verizon subscribers who had specifically asked to receive NARAL's text messages, and the Verizon policy under which that decision was made. Ramasastry explains why, under current federal law, what Verizon did is not prohibited. However, she also argues that federal law should be extended to prohibit content-based and viewpoint-based censorship like Verizon's.
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FindLaw columnist and human rights attorney Joanne Mariner discusses the New York Times's revelation last week that two more Bush Administration "torture memos" exist. Mariner contends that the memos' main purpose was to provide legal "cover" for illegal conduct, thereby immunizing U.S. officials from prosecution. Mariner assesses these and prior Bush Administration "torture memos," a classified executive directive, and last year's Military Commission Act and concludes that, taken together, they are a paper trial revealing the Administration's plan to violate applicable law on torture and get away with it. She also explains why the Administration might have thought such a strategy could succeed: In this area, unlike in others, a mistake of law may actually excuse illegal conduct.
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FindLaw columnist and Cardozo law professor Anthony Sebok questions the validity of a recent New York Times article suggesting that medical malpractice reform in Texas caused more doctors to move to that State. Sebok provides evidence and analysis showing that issues of causation here are much more complex than the Times article implied.
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FindLaw columnist and Columbia law professor Michael Dorf uses the recent sexual harassment verdict against Isiah Thomas and the Knicks to consider the influence of various corporate governance options on entities' -- and especially sports teams' -- litigation exposure and performance. Dorf describes the advantages and pitfalls of owners' retaining close control, but points out that other alternatives are not ideal either, for each comes with its own pros and cons. He also comments briefly on the unique situation of media ownership.
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In Part One of a two-part series of columns regarding copyright and the First Amendment, FindLaw columnist, attorney, and author Julie Hilden comments on a 2007 case before the U.S. Court of Appeals for the Ninth Circuit. In that case, the plaintiffs, assisted by attorneys from Stanford's Center for Internet and Society, challenged statutes that changed the copyright system from an opt-in system requiring registration to protect copyrights, to an opt-out system in which even a napkin doodle is automatically copyrighted unless the author expressly waives copyright. They argued the shift from an opt-in to an opt-out system violated both the Copyright Clause and the First Amendment of the Constitution.
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FindLaw book reviewer and attorney Elaine Cassel reviews the most recent book by FindLaw columnist and former counsel to the president John Dean, Broken Government: How Republican Rule Destroyed the Legislative, Executive, and Judicial Branches. Dean's book, as Cassel explains, discusses, for example, the role of the Vice President and his attorneys; the confirmations of Chief Justice Roberts and Justice Alito; and the Bush White House's use of signing statements and preference for secrecy across a number of areas.
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FindLaw guest columnists Mark Allenbaugh, a former Staff Attorney for the U.S. Sentencing Commission, and Donald A. Purdy, Jr., a former Acting General Counsel and Chief Deputy General Counsel for the Commission, comment on the significance of two sentencing cases the Supreme Court will decide this coming Term. Allenbaugh and Purdy summarize the Court's recent and extremely important decisions about the U.S. Sentencing Guidelines, which the Court deemed advisory as a result of Sixth Amendment jury trial issues, and then go on to consider how this Term's two cases, Gall and Kimbrough, may fit into this rapidly-developing area of law.
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FindLaw columnist and former counsel to the president John Dean comments on the content of Alan Greenspan's new autobiography and on Greenspan's decision, which mirrors Dean's own, to switch from being a registered Republican to being an Independent. Dean discusses both Greenspan's reasons for making the switch and Greenspan's promise that he will, nevertheless, be voting Republican in 2008. He also discusses Greenspan's critique of recent Republican actions affecting the budget, the deficit, and the economy.
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FindLaw columnist and Cardozo law professor Marci Hamilton discusses the recent decision by six Supreme Court Justices to attend the annual Catholic "Red Mass." Hamilton contends that the Justices' decision to attend the Mass is highly questionable in light of their ethical obligation to avoid not only impropriety, but also the appearance of impropriety, and the fact that the homily that was delivered alluded to the Court's positions on issues such as abortion that frequently come before the Court. Hamilton also considers the charge that some Justices' Catholic religious beliefs may have altered the outcome of a recent abortion decision, Gonzales v. Carhart, especially since the decision departed from past precedent and, she contends, accepted some highly dubious legislative findings at face value.
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FindLaw columnist and Hofstra law professor Joanna Grossman comments on a new Maryland decision that rejected a claim to a right to same-sex marriage and, more generally, discusses the current state of same-sex marriage law and litigation nationwide. Grossman explains, for example, the difference between the legal situation in states that have passed anti-same-sex marriage constitutional amendments, and those that have passed statutes to the same effect.
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