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November 2007 - Posts
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FindLaw columnist and former counsel to the President John Dean discusses the political fight over a California initiative that would change California's system for the allocation of electoral votes. More specifically, if the initiative were to pass, electoral votes would be allocated based on the proportion of votes each presidential candidate receives, rather than according to the current winner-take-all system. Since only two other states have taken this approach, Dean believes this is merely a ploy to get more Republican electoral votes for California, while allowing Republicans still to gain votes from other, winner-take-all Republican-dominated states. He contends that while opposing the initiative, Democrats should also advocate for another proposal, which would ensure that the presidential election result matches the national popular vote, as it failed to do in 2000.
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FindLaw columnist and Cardozo law professor Marci Hamilton contends that while legislators have the power to go beyond what the Free Exercise and Establishment Clauses require to accommodate the exercise of religion, to do so can sometimes be a mistake. Hamilton offers two detailed examples: The first is the federal government's decision to offer religious "comp time" to employees and pay them for unused hours upon retirement. The second is a bishop's proposal to revive the doctrine of charitable immunity, which once held that the Church could not be held liable for torts.
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FindLaw columnist, Rutgers law professor, and visiting Columbia law professor Sherry Colb discusses an Oregon case involving divorced parents' dispute over whether their twelve-year-old son may be circumcised in accordance with his converted Jewish father's wishes. Colb considers the specific questions the case poses, and also addresses a related presumption that she contends is implicit in American law: If a couple's beliefs, stemming from their adherence to a mainstream religion, require them to inflict what could be seen as harm on their child, then the law will not interfere. Colb considers why we generally are loath to intervene when it comes to parental decisions of this kind.
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FindLaw guest columnist and Syracuse law professor Aviva Abramosky discusses a recent ruling by a California Court of Appeal that Scott Peterson, who was famously convicted of murdering his wife Laci, will not recover insurance proceeds as a result of her death, though he was the named beneficiary of her policy. Abramosky explains the California Probate Code provision preventing murderers from inheriting their victims' estates, and the complexity introduced by the fact that the appeal of Peterson's conviction has not yet concluded.
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FindLaw columnist and Hofstra law professor Joanna Grossman discusses a recent federal appellate decision rejecting a man's claim that he was denied Equal Protection when state law imposed parental responsibilities on him for his unplanned biological child. The man claims his ex-girlfriend, the child's mother, falsely told him that she was infertile and, in any case, using birth control when the child was conceived, and that he had made very clear beforehand that he did not want to be a father. Grossman explains why the man's case, trumpeted as the "Roe v. Wade for men," did not convince the appeals court.
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FindLaw columnist and human rights attorney Joanne Mariner discussses a new book entitled Crimes of War: What the Public Should Know. As Mariner explains, the book covers questions such as these: What is the responsibility of military commanders for crimes committed by their subordinates? When is the killing of civilians a war crime? What do the Geneva Conventions say about terrorism? It also covers the accomplishments and limits of international tribunals addressing violations of international human rights law and the law of war.
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U.C. Davis professors Vikram Amar, a FindLaw columnist, and Alan Brownstein, a FindLaw guest columnist, discuss the controversial recent verdict against a church group that protested at the funeral of a soldier who died in Iraq; the group claimed that American soldiers are dying as punishment for Americans' tolerance for homosexuality. The soldier's father successfully sued on claims of invasion of privacy and intentional infliction of emotional distress, receiving almost $3 million in compensatory damages and $8 million in punitive damages from a jury. Should the jury verdict be reversed on the ground that it violates the First Amendment? Amar and Brownstein debate the possibility that to carve out a First Amendment exception for cases like this one may have broader ramifications for other, more sympathetic kinds of protests.
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FindLaw guest columnist and U. Richmond law professor Carl Tobias discusses a number of encouraging decisions regarding the federal judiciary that were recently made by Congress and the courts, which, he contends, truly merit our giving thanks. Tobias covers issues ranging from the regulation and self-regulation of the judiciary, to the standard for sanctioning frivolous filings, to the challenge of filling seats on courts currently understaffed to cope with heavy workloads and likely to become even more so. In addition, he contends that bipartisanship will be the key to continued progress.
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FindLaw columnist and Cardozo law professor Anthony Sebok and FindLaw guest columnist and Fordham law professor Benjamin Zipursky comment on the agreement that settles a large number of cases arising from the dangerous side effects of Vioxx, which caused the drug to be pulled off the market. Sebok and Zipursky explain why plaintiffs deciding whether to join the agreement are in a difficult position, for several reasons-- including uncertainty as to how much each plaintiff will receive, and the problems such a settlement inherently raises by potentially interfering with attorneys' traditional duties to their clients. They also explain the significance, here, of the fact that this set of cases is not certified as a class action, as many mass tort cases are.
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FindLaw guest columnists Mark Allenbaugh, a former Staff Attorney for the U.S. Sentencing Commission, and Paul Hofer, an attorney who is a former Special Projects Director and Senior Research Associate with the Commission, discuss the proposal before the Commission to abolish the long-criticized disparity between sentences for crack and powder cocaine offenders who were sentenced based on equal amounts of cocaine. Allenbaugh and Hofer focus, in particular, on the possibility that the elimination of the disparity will be retroactive, thus leading to the early release of a number of crack cocaine offenders, whose sentences would be revised to be more comparable to those powder cocaine offenders have served.
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FindLaw columnist and Columbia law professor Michael Dorf discusses a recent decision by the U.S. Court of Appeals for the Ninth Circuit that dismissed a challenge to warrantless wiretapping, citing the "state secrets" privilege. Dorf discussess the details of both the warrantless wiretapping program and the privilege, and explains why it's possible that, on remand, the district court will find for the plaintiffs on an issue the Ninth Circuit did not address: whether the Foreign Intelligence Surveillance Act supersedes the state secrets privilege.
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FindLaw columnist and former counsel to the president John Dean explains the disturbing situation regarding the presidential papers of the George W. Bush Administration. Dean notes that through Executive Order 13233, President Bush negated key provisions of the 1978 presidential records law enacted in the aftermath of Watergate. Now, Dean explains, President Bush and Vice President Cheney seem poised to take advantage of the Executive Order to erect a shield of secrecy around their key papers. Dean explains that, while a future president's revised Executive Order would likely not be able to reach the Bush/Cheney papers, Congress still may be able to influence Bush and Cheney to turn them over, if Congress makes the government's funding of the administration of the future library contingent on the full inclusion of all presidential papers.
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FindLaw columnist and Cardozo law professor Marci Hamilton takes strong issue with a recent decision by a U.S. District Court in Washington State that indicated that pharmacies have a Free Exercise Clause right to seek exceptions to a law that requires them to fill prescriptions for the emergency contraception method "Plan B." Hamilton argues that Washington State's law, as a matter of policy, is a reasonable compromise, as it leaves individual pharmacists free to refuse to fill Plan B prescriptions, even as pharmacies must do so. She also contends that the decision contravenes strong Supreme Court precedent regarding both the right to procure contraception and the government's power to enforce neutral, generally-applicable laws despite their effect on religious exercise.
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FindLaw guest columnist Scott Moss asks whether law schools can continue to charge such high tuition in light of the modest salaries some graduates can expect to command, and some schools' poor bar passage statistics. Moss notes that if applications decline, some law schools will predictably draw weaker students who will likely have difficulty with bar passage, which could, in turn, lead to the schools' losing their accreditation. He also suggests that, in light of market forces, we are likely to see either lower tuition, or some law schools closing their doors.
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FindLaw columnist and U. Washington law professor Anita Ramasastry discusses a new, controversial feature planned for the social networking site Facebook.com. As Ramasastry explains, after a Facebook user registers as a "fan" of a particular band or brand, Facebook plans to generate ads that display the user's photo alongside product endorsements, and show those ads to the user's Facebook friends.
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FindLaw columnist, Rutgers law professor, and visiting Columbia law professor Sherry Colb discusses a complex, important case that the U.S. Supreme Court will hear this Term. As Colb explains, the case asks the following question: If state law prohibits arrest for a given offense, may police nonetheless arrest a suspect for that very offense and search him, without violating the Fourth Amendment? (In the case before the Court, the offense was driving with a suspended license, and Virginia law directed that this offense must lead to citation, not arrest.) Colb untangles the complex intersection of federal constitutional law and the law of the various states in this context.
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FindLaw columnist and Hofstra law professor Joanna Grossman discusses the passage by the House of Representatives of the Employment Non-Discrimination Act of 2007 (ENDA), which would provide anti-discrimination protections for gay and lesbian employees, but which President Bush has promised to veto. Grossman notes the very limited and indirect protection that current federal law provides for gay, lesbian, and transgender employees who experience discrimination. She also explains why ENDA has faced criticism from both the right and the left: The right contends that ENDA's religious exemption is not large enough, while the left contends that ENDA should also have covered transgendered individuals.
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FindLaw columnist, attorney, and author Julie Hilden contends that while the newly-agreed-upon guidelines for User-Generated Content (UGC) services such as MySpace have some good points, they also will predictably cut down on the prompt availability of user-uploaded material that is covered by the "fair use" exception to copyright law. In particular, Hilden criticizes two features of the guidelines: their imposition of filters before uploads occur, and their use of a "sweep in" system, under which a copyright own must actively "white list" uses it considers to be "fair use," rather than a "black list" system.
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FindLaw guest columnist and attorney Mark Allenbaugh assesses two new proposals regarding import safety -- an issue that is all the more important in the wake of yet more recent recalls of products imported from China. Allenbaugh contends that neither the Action Plan of the President's new Interagency Working Group on Import Safety, nor the Consumer Product Safety Commission Reform Act of 2007, will effectively address the key objective here: preventing dangerous merchandise from reaching our stores and shelves
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FindLaw guest columnist and Loyola Los Angeles law professor Richard L. Hasen uses the Stephen Colbert "Hail to the Cheese" candidacy for President as a lens to examine the intersection between two key legal principles: First, corporate spending on campaigns can constitutionally be limited. Second, the First Amendment protects certain spending for news stories, commentary, and editorials from falling within those limits. Hasen considers whether Colbert's campaign falls within the spending limits, or the news/commentary exception.
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FindLaw columnist and U.C. Davis law professor Vikram Amar discusses a California Supreme Court case and a federal prosecution that both implicate the tension between the federal marijuana ban and California's law permitting the sale of "medical marijuana." The California Supreme Court case concerns an employee who was fired for using medical marijuana; the employee contends that this was illegal, for he needed to use the marijuana to treat a disability. The federal prosecution concerns two brothers who sold about $49 million of what they say was medical marijuana in the San Francisco Bay area over three years.
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FindLaw columnist, attorney, and author Edward Lazarus argues that the Senate should vote to confirm nominee and former U.S. District Judge Michael Mukasey as Attorney General, despite Mukasey's noncommittal stance on the use of "waterboarding" in interrogation. In support of his position, Lazarus points out that Mukasey has said that Congress has the power to outlaw waterboarding on the grounds that it is torture, and that, if Congress did so, the President would be bound to abide by the law Congress passed. In addition, Lazarus argues that from a pragmatic standpoint, Mukasey is a better Attorney General nominee than one might have expected from the current Administration.
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FindLaw columnist and human rights attorney Joanne Mariner offers an index, much like the famous Harper's Magazine "Harper's Index," that provides a quantitative perspective on the Guantanamo Bay detention facility and the fates of the detainees there. The figures she compiles range from the shocking (the total days of the longest detentions without charge; the age of the youngest prisoner), to the deeply upsetting (number of apparent and attempted suicides; estimated number of detentions of farmers, aid workers, missionaries, and refugees totally unconnected to terrorism), to the appalling (hours for which, according to an FBI agent, two detainees were left chained in a fetal position).
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As Senators vote today on whether to confirm former U.S. District Judge Michael Mukasey as the nation's new Attorney General, what considerations should they keep in mind? FindLaw guest columnist and U. Richmond law professor Carl Tobias argues that foremost in Senators' minds should be issues such as executive power, interrogation techniques that may constitute torture (especially waterboarding), and domestic surveillance. For each issue, Tobias suggests exactly what Senators should look for in Mukasey's oral and written responses, and in his career track record.
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In Part Two of a two-part series of columns, FindLaw columnist and Cardozo law professor Anthony Sebok offers additional commentary on a recent, interesting decision by a panel of the U.S. Court of Appeals for the Second Circuit, involving the Alien Tort Claims Act (ATCA). As Sebok explains, the decision raises the question whether the test for ATCA "aiding and abetting" liability should be derived from the Restatement of Torts, or the Rome Statute of the International Criminal Court. Sebok describes what is at stake, what methods may be used to answer this key question, what is likely to happen upon remand to the district court, and why this issue may ultimately interest the U.S. Supreme Court.
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FindLaw columnist and Columbia law professor Michael Dorf analyzes U.S. Supreme Court precedent to determine whether the Court would likely hold that the First Amendment allows protesters to disrupt funerals by picketing with placards bearing offensive messages. Dorf concludes that the Court would likely uphold as constitutional reasonable restraints on such picketing. This analysis, as Dorf explains, is relevant to the status of a recent $10.9 million federal civil jury award in a suit brought by the father of a Marine killed while serving in Iraq. The father sued picketers at his son's funeral, alleging that they disrupted the funeral by displaying highly offensive signs, and violated defamation law by posting related messages on their website.
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FindLaw columnist and former counsel to the president John Dean argues that a view that has become conventional wisdom inside the Beltway -- that American voters do not care about political-process issues such as secrecy, bipartisanship, or the violation of longtime procedures -- is dead wrong. Dean also applauds Michael Tomasky, editor of the UK Guardian's new online edition, for going where American journalists generally do not go, to ask candidates about issues of process and power, as Tomasky did in a recent interview with Hillary Clinton.
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