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December 2007 - Posts
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FindLaw guest columnist and U. Richmond law professor Carl Tobias considers the prospects for Judge Alex Kozinski's tenure as the new Chief Judge of the U.S. Court of Appeals for the Ninth Circuit, which is famed for being the country's largest, most highly political federal judicial circuit. Tobias covers the track record of Kozinski's esteemed predecessor, Judge Mary M. Schroeder, and discusses Kozinski's reputation and jurisprudential views. Judge Kozinski identifies himself as possessing "conservative instincts," but offers a nuanced definition of his views, which mix libertarianism, conservatism, and constitutionalism. Will the judge, once a Circuit renegade, smoothly become a Circuit leader? Tobias thinks so, and explains why.
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FindLaw columnist and U. Washington law professor Anita Ramasatry discusses interesting developments in the virtual world Second Life, and their potential legal ramifications. Second Life has recently experienced a run on one of its virtual "banks," instances of virtual pickpocketing, and even a virtual "bank robbery." These events had real-world consequences as its "Linden dollars" are convertible into U.S. dollars. Can real-world prosecutors or regulators intervene? Ramasastry describes which laws would and would not apply, and cautions that real-world authorities may be well-advised to start paying attention to Second Life.
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Who really wrote Barry Goldwater's landmark political tract "The Conscience of a Conservative"? FindLaw columnist and former counsel to the president John Dean says the answer is simple and straightforwad: none other than Goldwater himself. Based on his research into the Goldwater archive, conducted jointly with Barry Goldwater, Jr., Dean cites specific, powerful evidence that rebuts widespread claims that Goldwater did not write the book that bore his name.
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FindLaw columnist, visiting Princeton Law and Public Affairs professor, and Cardozo law professor Marci Hamilton discusses the recently-released report of the U.S. Conference of Catholic Bishops. Hamilton explains why she had mixed feelings after reading the report and reflecting on the past five years and the clergy child abuse scandal. In the end, she contends that private institutions, public institutions, and legislatures must all take action if we are to end child sex abuse.
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FindLaw columnist, visiting Columbia law professor, and Rutgers law professor Sherry Colb discusses a recent decision by the Minnesota Supreme Court interpreting the Fourth Amendment to the U.S. Constitution to suggest that searches conducted by the police at night at citizens' homes should be subject to stricter standards than searches conducted in the daytime. Colb argues that this analysis -- grappling with a question the U.S. Supreme Court has not resolved conclusively -- is the correct one.
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FindLaw columnist, attorney, and author Julie Hilden discuss a little-discussed but, she contends, very significant New York case. As Hilden explains, the case involves what is arguably an instance of "libel tourism" -- the phenomenon of plaintiffs choosing to sue in the United Kingdom (U.K.), as opposed to the U.S., whenever possible, because law in the U.K. on defamation is dramatically more pro-plaintiff than law in the U.S. Hilden suggests that a treaty might resolve the problem, protect First Amendment interests, and honor the different privacy/free speech balances the U.K. and the U.S. each strike.
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FindLaw guest columnist, visiting St. Louis University law professor, and FIU law professor Howard Wasserman weighs in on the possible legal and other consequences of the recent blockbuster report by former Senator Mitchell on the use of steroids in Major League Baseball. The reports both chronicles past use by particular players, and offers recommendations to stop use of steroids in the future. Wasserman takes on interesting questions such as: Does the report fairly allocate blame as between individual players and MLB itself? Is it true that the Report relies on hearsay, and thus is less convincing? If Mitchell genuinely does not want MLB to punish past users, as he claims, then did he have another good reason for naming names? Could the named players sue for defamation? And, is it true that racial discrimiation is behind the differing treatment Barry Bonds, who is African-American, and Roger Clemens, who is white, have been accorded?
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FindLaw columnist and U.C. Davis law professor Vikram Amar discusses the question whether California's proposed President Election Reform Act (PERA), if approved by voters on Election Day in November 2008, could also immediately take effect that same day, to alter California's allocation of electoral votes in the November 2008 presidential election. PERA would replace California's winner-take-all approach with an approach giving two electoral college votes to the candidate who received the most votes statewide, and then awarding one electoral college vote to each candidate for each of the 53 California congressional districts in which he or she received the most votes. If PERA is approved, however, would it first take effect in 2008 or 2010? Amar contends that there is a clear answer.
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FindLaw columnist and human rights attorney Joanne Mariner recommends, and offers brief descriptions and evaluations of, key war-on-terror books, ranging from accounts by Bush Administration insiders, to personal stories by detainees. Several of the books directly take on the issue of the Administration's use of torture. While this won't be easy or pleasant holiday reading, it will prove rewarding and informative, and essential to understand war-on-terror policies and facts.
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FindLaw columnist, attorney, and author Edward Lazarus argues that, despite a spate of criticism, former Senator George Mitchell actually had a strong basis to include in his recent report the names of the baseball players his sources had named as using steroids. Lazarus contends that the common claim that the allegations against the players were mere hearsay is inaccurate, from a legal perspective, since some of the allegations fell into a long-established hearsay exception. He also notes a number of other factors that, he argues, made it reasonable for Mitchell to opt to rely on his sources' claims about players' steroid use.
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FindLaw guest columnist and former U.S. Sentencing Commission Staff Attorney Mark Allenbaugh discusses two Supreme Court decisions issued last week that enhance U.S. district judges' ability to employ their own discretion in sentencing. In particular, as Allenbaugh explains, the decisions together support judges' efforts to address the large disparity between sentences for equal amounts of crack and powder cocaine. Allenbaugh welcomes this as a positive development, noting the difficulty of defending the disparity, its disproportionate impact on African-American men, and the U.S.'s stunningly large percent of imprisoned citizens, compared to other countries.
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FindLaw columnist and Cardozo law professor Anthony Sebok discusses the possible legal implications of a widely-reported incident in Missouri in which a thirteen-year-old girl named Megan killed herself after her MySpace friend "Josh" harshly turned against her. "Josh" turned out to be the assumed MySpace name of the mother of a former friend of Megan's. Recently, authorities decided not to charge the neighbor with a crime; Sebok considers, however, whether Megan's parents could successfully bring a tort suit against the neighbor.
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FindLaw columnist and Columbia law professor Michael Dorf comments on two recent developments relating to environmental regulation -- a federal judge's decision upholding California's proposed carbon emissions standards for automobiles, and pending energy legislation including provisions that are, in effect, gas mileage requirements. Dorf considers how these developments relate to deeper questions regarding environmental and energy policy, such as whether different federal agencies' regulations should overlap, whether state and federal regulations should overlap, and the merits of gas mileage requirements versus gas taxes.
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FindLaw columnist and former counsel to the president John Dean considers what actions Southern District of New York federal judge Alvin Hellerstein may take regarding the CIA's reported destruction of tapes of detainee interrogations that employed torture. It appears that the CIA should have produced, or at least preserved, the tapes in response to a document request by the ACLU in a case before Judge Hellerstein investigating the treatment of detainees. Though there are ten or more ongoing investigations into the tapes and their destruction, Dean predicts the most fruitful avenue of inquiry of all will center on Judge Hellerstein's courtroom.
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FindLaw columnist, visiting Princeton Public Affairs professor, and Cardozo law professor Marci Hamilton discusses what was said, and not said, in presidential candidate Mitt Romney's recent speech about his religious faith. Hamilton contends that the press has failed to thoroughly and factually cover the subject of Romney's beliefs and how they might affect his service as President, and specifies three areas in which further inquiry is needed. She also suggests Romney must answer two crucial questions: What are the facts of his faith? And, how do these facts relate to his presidential ambitions?
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FindLaw columnist, attorney, and author Julie Hilden discusses a recent decision by the U.S. Court of Appeals for the Sixth Circuit that struck down federal recordkeeping requirements aimed at preventing child pornography, but applying to sexual expression involving only consenting adults as well. Invoking the First Amendment overbreadth doctrine, which holds that a law violates the First Amendment if it sweeps within its scope too many unconstitutional applications, the Sixth Circuit panel held that the statute could not stand. The three-judge panel was divided, however, on whether the court could narrow the statute itself or whether Congress had to do so; a majority said that it was up to Congress to reenact a narrow, constitutional version of the statute, but the dissenter thought a commercial-use limitation might save the statute.
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FindLaw columnist and Hofstra law professor Joanna Grossman discusses a recent decision from the Rhode Island Supreme Court denying two Rhode Island residents' request to end their Massaschusetts same-sex marriage in divorce. Grossman places the decision in the broader context of laws relating to same-sex marriage, civil unions, and divorce, and takes issue with the Rhode Island Supreme Court's decision to focus on definitions from dictionaries from 1961, the year jurisdiction was vested in the state's family court, rather than taking subsequent developments into account.
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FindLaw columnist, visiting Columbia law professor, and Rutgers law professor Sherry Colb discusses an issue the Supreme Court will confront this Term: the admissibility of "me too" evidence -- evidence that suggests that not only the plaintiff, but other employees as well, suffered employment discrimination perpetrated by the defendant corporation. Colb explores the idea that an institution itself (as opposed to an institution as represented by a single supervisor) can be guilty of discrimination, therefore making all its supervisors' employment decisions relevant in a discrimination case.
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FindLaw columnist Vikram Amar and FindLaw guest columnist Alan Brownstein, both U.C. Davis law professors, discuss the controversy over voters' potential reaction to the fact that Presidential candidate Mitt Romney is a Mormon. Noting that the Constitution expressly prohibits religious tests for officeholders, Amar and Brownstein consider whether voters may be violating that prohibition if they disqualify Romney from consideration because of his faith alone. Amar and Brownstein also contend that Romney's religious belief may prove to be properly relevant, as Romney himself has suggested, to the extent that it informs his moral and ethical sense, for the law can legitimately reflect morality.
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FindLaw book reviewer and Senate Antitrust Subcommittee Senior Counsel Seth Bloom reviews Edwin Rockefeller's new book, "The Antitrust Religion." Bloom takes sharp issue with Rockefeller's claim that antitrust law is so arbitrary, standardless, and highly-politicized, that it is more accurately described as religion than as law. In critiquing Rockefeller's claims, Bloom discusses the problems that liberal and conservative economists alike agree will occur in a completely unregulated market, and contrasts the governing standards of antitrust law with those that apply in other legal areas which, he contends, are also necessarily broad and imprecise.
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FindLaw columnist, attorney, and author Edward Lazarus argues that the current spate of criticism targeting Supreme Court Justice Anthony Kennedy is unfair. Lazarus notes that there is truth to some of the criticisms offered by leading commentators such as Jeffrey Rosen, Jeffrey Toobin, and Jan Crawford Greenburg, but also contends that these evaluations are far too extreme and ultimately unfair. Moreover, Lazarus notes that the trend of unjustly attacking Kennedy has been matched by a trend of overgenerously praising the Court's prior, now-retired "swing Justice," Sandra Day O'Connor. Lazarus suggests it is unfair to put O'Connor on a pedestal, as she had her own faults, and to deprecate Kennedy, ignoring his important strengths.
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Is Governor and Presidential candidate Mitt Romney's speech tomorrow regarding the topic of his faith a good idea? FindLaw guest columnist and Pepperdine law professor Douglas Kmiec, who serves as Romney's volunteer constitutional law advisor, believes the answer is a strong "Yes." Kmiec considers what roles Romney's faith may legitimately play in voters' assessments of his qualifications, and compares and contrasts Romney's situation to that of a past candidate, John F. Kennedy.
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FindLaw columnist and Columbia law professor Michael Dorf explains the importance of the issues raised by the "war on terrorism" case being argued at the Supreme Court today, which asks if Guantanamo detainees possess the right to habeas corpus. In his analysis, Dorf discusses whether the Constitution establishes a right to habeas corpus and if so, whether it means what it meant when the Constitution was ratified, or whether its meaning has evolved over time. Dorf also considers whether Congress provided an acceptable substitue for habeas corpus in the Military Commissions Act.
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FindLaw guest columnist and U. Richmond law professor Carl Tobias reflects on the changing of the guard at the U.S. Court of Appeals for the Ninth Circuit, where Judge Alex Kozinski is taking over for Judge Mary Schroeder as Chief Judge. Tobias considers the unique challenges of presiding over the large and ideologically-divided Ninth Circuit, and praises Chief Judge Schroeder for having done an excellent job of meeting those challenges, which included resisting calls for a break-up of the Circuit.
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FindLaw book reviewer, Ohio Northern law professor, and author Scott Gerber discusses the critical reaction in the wake of the publication of Justice Clarence Thomas's memoir, My Grandfather's Son. Gerber argues that the vitriol from the Left regarding Justice Thomas's book has been unwarranted, and contends that a more balanced view is called for. He also discusses an aspect of Justice Thomas's qualifications that he contends the Left has consistently overlooked: Thomas's scholarship on the Declaration of Independence, which Gerber, a scholar in the same area, esteems quite highly.
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FindLaw columnist and human rights attorney Joanne Mariner discusses in detail one key issue that will be covered at Wednesday's historic U.S. Supreme Court oral argument regarding "war on terror" judicial review: whether Combatant Status Review Tribunal (CSRT) proceedings, the Bush Administration's proposed alternative to the federal courts, are in fact an "adequate substitute." Mariner raises issues such as CSRTs' reliance on secret evidence that is presumed, not proven, to be valid; and official language suggesting that CSRTs effectively put the burden of proof on the detainee, not the government. She also notes other serious procedural defects that suggest that CSRTs are, in fact, no substitute for the courts. Drawing on transcripts of CSRT proceedings, Mariner points to concrete illustrations of the Catch-22s detainees have faced.
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FindLaw columnist and U. Washington law professor Anita Ramasastry discusses the recent federal raid upon the Indiana headquarters of NORFED, an organization that sells precious-metal coins bearing the likeness of Texas Congressman and Republican Presidential candidate Dr. Ron Paul. Federal authorities seized the coins on the ground that NORFED was selling an illegal currency. Will the allegation prove valid? Ramasastry considers applicable law relating to this situation, and also to the situation of barter-like local currencies such as Ithaca, New York's "Ithaca hours."
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