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January 2008 - Posts
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FindLaw columnist and U.C. Davis law professor Vikram Amar discusses a recent, 5-2 decision by the California Supreme Court affirming a California company's right to fire an employee for testing positive for marijuana. The employee had contended that the firing violated California antidiscrimination law in light of the circumstances: He was a disabled veteran, injured during his military service; he used the drug at a doctor's suggestion, to treat pain arising from his injury; and his use of the drug neither occurred on the job nor interfered with his on-the-job ability to function. Amar contends that the court's decision went astray in a number of ways, and concludes that the employee's argument was much stronger than the majority suggested.
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FindLaw guest columnists Scott Gerber and Kevin Hawley -- a professor and a distinguished practitioner in residence, respectively, at Ohio Northern University law school -- weigh in on the current controversy over federal judges' salaries. Gerber and Hawley draw upon the parallel controversy over Canadian judges' salaries -- considering, for example, Canadian Karen Selick's essay contending that judges in Canada do not require raises in light of generous pensions and that the top private practice attorneys who would only be lured by high salaries may not have judical temperaments in any case. With Canada poised to approve judges' raises regardless, they point out, arguments like Selick's may not prevail even if they should.
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FindLaw columnist, attorney, and author Edward Lazarus joins the ongoing debate over how much blockbuster Supreme Court decisions such as Roe v. Wade and Brown v. Board of Education truly have influenced American society, in light of the backlash they evoked, the possibility that similar legislative action would have been taken instead, and the intransigence of factors such as residential segregation. Lazarus discusses the candidacies of Senators Clinton and Obama, as well as the prior candidacy of former Senator Edwards, as evidence that such Court precedents may have unexpected positive ramifications, and thus be more influential than they might seem.
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FindLaw columnist and Columbia law professor Michael Dorf argues that President Bush is right on the merits with respect to his opposition to "earmarking" -- the practice by which Congresspersons use legislative history to direct funds to particular programs not specified in the text of an appropriations bill -- but hypocritical in combining this stance with other views the President also holds. In particular, Dorf contends, the amount of money expended through earmarking is dwarfed by the revenue lost by Bush tax cuts, and cost by the Iraq War. In addition, Dorf argues, the President cannot both use signing statements to put his own gloss on legislation, and object to Congresspersons' doing the same through earmarking.
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FindLaw guest columnist and Pepperdine law professor Douglas Kmiec contends that the new, revised version of FISA should immediately be enacted into law by Congress. Kmiec notes that three essential elements of the new revision to FISA have already been agreed upon by Senators Rockefeller and Bond, the Democratic and Republican leaders of the Intelligence Committee. He also expresses concern that if the law is not renewed, the U.S. will be left vulnerable to terrorism while Congress continues to negotiate over the law's terms. Finally, he argues that the law's essential elements are correct, and should not be controversial.
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FindLaw columnist and Cardozo law professor Anthony Sebok discusses a possible Takings Clause problem that will arise if the Senate goes through with its plan to provide immunity to telecommunications companies that illegally provided information about customers' communications to the government. Sebok notes that in other contexts, such as that of the 9/11 Victims Compensation Fund, the government would never consider taking away rights to sue without affording compensation, in part because there would be a Takings Clause barrier to doing so. Is this case different? Sebok considers precedent as to whether the customer privacy rights that were allegedly compromised by the telephone companies count as property rights that have properly vested and accrued.
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FindLaw columnist and human rights attorney Joanne Mariner discusses the post-9/11 global trend of punishing speech that, while not directly inciting terrorism, is seen as justifying, defending, glorifying, or enabling it. Drawing upon examples from the U.N. Security Council, the Council of Europe, and individual countries around the world, Mariner comments on particular resolutions and laws. She contends that the laws' broad language may sometimes reach legitimate political speech, and gives prosecutors disturbingly great discretion in deciding whom and whether to prosecute. Mariner questions whether such laws are being enforced against those who are a true danger, and whether prosecutorial resources would be better focused on action, as opposed to speech.
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FindLaw columnist and former counsel to the president John Dean contends that the Republican Party is increasingly losing the allegiance of the business community, and for good reason. Offering a historical perspective, Dean notes that of the last eight recessions America has suffered, all but the first, in 1948, occurred during Republican presidencies. In addition, on a number of contemporary issues, Dean argues that the Republican Party's positions have skewed far from those of many in the business community, especially those who run small or mid-sized businesses.
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FindLaw columnist and visiting Princeton law and public affairs professor Marci Hamilton applauds the Supreme Court for its decision this month declining to interfere with New York's primary system. Indeed, she argues that the Court should have gone further, by overruling or strictly limiting a 2000 precedent that had opened the way for such challenges. Ideally, Hamilton argues, the Court should refrain from micromanaging states' primary systems, especially in light of the constitutional federalism concerns that are implicated when the nation's highest federal court intervenes in state
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FindLaw columnist and National University of Ireland-Galway visiting professor Anita Ramasastry discusses the recent move by the creators of the virtual world Second Life to ban from the site any bank that is not subject to a real-world regulator. Second Life's currency is Linden dollars, but Linden dollars can be converted into U.S. dollars. Accordingly, when people deposited Linden dollars into a Second Life bank that then closed, real U.S. dollars were lost -- and this and other problems motivated Second Life to institute the ban. Ramasastry points out, however, that the ban was not the only option; Second Life users could also have created their own Second Life regulatory bodies. She also notes that the ban may open up its own can of worms, regarding how much real-world regulators can and should intervene in Second Life.
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FindLaw columnist and visiting Columbia law professor Sherry Colb discusses the difficult issue of whether public high schools should grant maternity leave to students who become pregnant, above and beyond the leave required simply to give birth. Recently, a Denver public high school faced a request from pregnant students for a four-week leave, and had to decide whether to grant it, or to allow students to suffer unexcused absences that could delay their graduation dates. Colb covers both sides of the argument and comes down in favor of granting leave, but she notes that the leave question should be revisited if the grant of leave were to itself be connected to a rise in teen pregnancy rates.
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FindLaw columnist and Hofstra law professor Joanna Grossman considers a legal issue raised by in vitro fertilization technology: Can a child born from an embryo that was created before her father died, but that was implanted in her mother's uterus after he died, receive his "death benefits," such as Social Security benefits? Grossman explains how a number of states have answered this question, how the Arkansas Supreme Court ruled, and why that ruling was arguably in error.
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FindLaw guest columnist and U. Richmond law professor Carl Tobias criticizes the Bush Administration for failing to fill an open seat on the U.S. Court of Appeals for the Fourth Circuit, despite the fact that the state's two U.S. Senators have agreed upon five strong and reasonable candidates to occupy the seat. Tobias also notes that this is not an isolated instance of an appellate court seat remaining open due to a failure on the Administration's part to consult with home-state Senators and nominate consensus candidates; the situation has been repeated with the First, Third, Fourth, and Sixth Circuits as well.
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FindLaw columnist, attorney, and author Julie Hilden considers a recent proposal by the Organization for Transformative Works. The proposal would change copyright law to fully protect fan fiction -- that is, works of fiction by fans of particular original works that employ those original works' characters, worlds, and potentially their plots -- from copyright infringement suits. Hilden suggests that a more moderate solution, such as a mandatory modest royalty, would benefit not only the original work's creator, but also fans. She suggests that, under a system with a mandatory modest royalty, fans would enjoy more original works from the same creator, and might even be able to act as patrons, banding together to sponsor a creator by pooling mandatory royalty fees to fund the creator's next work.
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FindLaw columnist, attorney, and author Edward Lazarus discusses the potential schism that may be created if a Democratic President is elected this year: For the first time in quite a while, Lazarus explains, the Supreme Court's ideological politics may soon be out of sync with popular political sentiment. Lazarus tracks the periods during which the Court has been famously in and out of step with popular opinion, beginning with the famous era when the Court for a time defied FDR in his attempt to put into place New Deal programs. He also explains why the views of all three of the leading Democratic primary candidates would make for a sharp contrast with those of the Roberts Court.
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FindLaw columnist and U.C. Davis law professor Vikram Amar weighs in on three key pre-Presidential election developments. First, Amar notes which states have embraced the national popular vote plan, which Amar himself also supports, and contends that it should not be seen as a partisan issue especially since, in recent elections, it could have cut against either major party. Second, Amar considers how a Mississippi court resolved a case that asked whether the Governor's choice of a special election date was legally permissible. Third, Amar assesses the lawsuit challenging Nevada caucus procedures, and explains why it may be of legal significance that the suit was brought at the last minute.
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FindLaw columnist and human rights attorney Joanne Mariner offers a comprehensive look at all the options open to America for ways to legally treat detainees suspected of terrorism. She specifically focuses on how, according to each option, the process by which detention decisions are made should be. She also considers the "preventive detention" option, currently forbidden by U.S. law.
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FindLaw columnist, attorney, and author Julie Hilden discusses the recent lawsuit against famous comedian Jerry Seinfeld and his wife, Jessica. The suit was brought by a cookbook author, Missy Chase Lapine, who, like Jessica Seinfeld, wrote a 2007 cookbook on how to sneak healthy vegetables into treats that children love. Lapine claims Jessica's cookbook, which was published second, infringed Lapine's copyright in her prior cookbook and trademarks in the images on its cover. Lapine also claims that, after the controversy arose relating to the similarity between the two cookbooks, Jerry Seinfeld defamed her by calling her a "wacko" and making various other derogatory statements about her in an interview with David Letterman. Hilden contends that despite some strong parallels between the two books, Lapine's legal case is not as strong as it might seem.
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FindLaw guest columnist, attorney, and author Elaine Cassel discusses a Yale Law School clinic's decision to represent American citizen Jose Padilla, previously designated an "enemy combatant" by the Bush Administration, in a civil suit against former Administration attorney John Yoo. Yoo allegedly recommended Padilla for "enemy combatant" status, and wrote memoranda arguing in favor of the legality of the use of torture. Cassel details the facts of Padilla's case -- including his three-and-a-half year detention without charge, and the Administration's decision to drop the claim that Padilla was involved in a "dirty bomb" conspiracy, bringing instead another terrorism conspiracy charge, of which Padilla was convicted. She also explains why the Yale Law School clinic's suit, while it may bring needed publicity to credible allegations that Padilla was tortured, is unlikely to succeed as a legal matter in light of Yoo's ability to assert official immunity.
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FindLaw columnist and Columbia law professor Michael Dorf takes on an interesting question that some voters may be pondering with respect to the Democratic presidential primaries: Suppose you would like to vote for Hillary Clinton or Barack Obama, but you fear that other voters will not vote for these candidates for sexist or racist reasons, respectively, and thus, they will lose. Is it wrong for you to then switch your vote to another candidate -- say, John Edwards? Dorf parallels this question to an interesting question raised by a past Supreme Court decision: whether societal bias against interracial couples can constitutionally affect a family court's custody decision. The Court said no. Should voters also say no to casting their vote in a way that takes others' anticipated bias into account?
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FindLaw columnist and former counsel to the president John Dean comments on the problems plaguing our presidential nomination process. Dean criticizes the current process as being far too front-loaded and compressed, and giving undue influence to states whose populations do not accurately represent America as a whole. He also contends that this year's primary schedule could not have been worse if it had been designed by a madman, as it creates constant logistical problems for the candidates, forces them to depend on major donors, and fails to serve its purpose of allowing the parties to make reasoned, thoughtful, fair decisions as to who the best possible candidate would be. The solution, Dean contends, is rotating regional primaries.
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FindLaw columnist and visiting Princeton Law and Public Affairs professor Marci Hamilton details the probing questions she would ask each of the eight leading Democratic and Republican Presidential candidates regarding their views on what our Constitution's separation of church and state will specifically require from them, in practice, if they become President. Hamilton both challenges the candidates on their prior church/state records, and raises issues that, she argues, they still must publicly address regarding their willingness to separate religion from government.
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FindLaw columnist and visiting law professor at the National University of Ireland-Galway Anita Ramasastry discusses a Wisconsin federal magistrate judge's decision to uphold Amazon customers' First Amendment rights in the face of a federal government subpoena. The government sought the customers' information to prove its allegations that a person who sold used books through Amazon had failed to pay taxes on his earnings. The magistrate judge both identified a serious First Amendment harm, in the potential chilling effect on Amazon customers' book purchases, and also pointed to an alternative way in which the government could have contacted the customers, through Amazon, to seek their cooperation with the investigation.
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FindLaw columnist and visiting Columbia law professor Sherry Colb considers the division, in the "pro-life" movement, between those who condemn abortion clinic violence as reprehensible, and those who perpetrate it. Colb explains why even someone who deeply believes that a fetus is a person may not also support employing violence in an attempt to defend the fetus.
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FindLaw columnist and Hofstra law professor Joanna Grossman considers pop star Britney Spears's difficult current family law situation. Grossman summarizes the facts of Spears's past and current family law woes, and explains the legal rules that have recently led Spears to completely lose the right to visit her two sons. She also considers Spears's prospects of re-establishing visitation in the near future.
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FindLaw guest columnist and U. Richmond law professor Carl Tobias outlines seven steps he contends that new U.S. Attorney General Michael Mukasey should take in order to resolve problems still plaguing the troubled Department of Justice. Among the key topics Tobias raises are combatting the DOJ's improper prior politicization and the negative image it left behind, and either ending or placing limits upon controversial practices such as domestic surveillance, aggressive interrogation (including waterboarding), indefinite detention at Guantanamo, and the use of military tribunals.
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FindLaw columnist and Cardozo law professor Anthony Sebok discusses a jury's decision to award a sizable verdict to a plaintiff who properly reported to credit-rating services that her identity had been stolen, yet found it impossible to get one of the services to promptly correct the errors the identity theft had introduced into her credit history. Sebok explains the legal basis of the suit, and considers why the jury was so angered by the facts of this case, as the whopping "mental anguish" component of its verdict reflected.
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FindLaw columnist and U.C. Davis law professor Vikram Amar explains an initiative California voters will consider this summer or fall: The California Property Owners and Farmland Protection Act (CPOFPA). As Amar explains, the CPOFPA is, in part, a response to a controversial Supreme Court decision holding that the Constitution's Takings Clause, though restricted to "public use," does not prevent a government from transferring property from one private landowner to another. However, as Amar describes, the CPOFPA also does much more than respond to this controversial case, and in some areas, its potential application is quite uncertain.
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FindLaw columnist, attorney, and author Edward Lazarus focuses on two important Supreme Court decisions that will each turn 50 in 2008: Trop v. Dulles, and Cooper v. Aaron. Trop established that a military deserter could not be constitutionally stripped of his citizenship, but the Court split on the constitutional basis for the holding. Cooper established that when the Supreme Court told Southern public schools to allow African-American students to attend, it meant business, and thus substantially bolstered the Court's power. Lazarus explains why, fifty years later, both decisions still matter.
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FindLaw columnist and human rights attorney Joanne Mariner offers a 2007-retrospective legal quiz, inviting readers to test their knowledge of the presidential candidates' respective positions on Guantanamo, torture, and habeas corpus. What does Rudy Giuliani think about waterboarding? What does Mitt Romney believe about the future of Guantanamo? Which Republican candidates have spoken out against waterboarding and who favors interrogators' power to choose any method of interrogation they like? Who would close Guantanamo if elected, and who would keep it open? Readers are invited to pick their answers, then check the answer key, which may contain some interesting surprises.
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FindLaw columnist and Columbia law professor Michael Dorf considers how each presidential candidate with a law degree is spinning his or her legal background in the context of the campaign. Among the candidates with a plausible chance of winning the primaries, Dorf points out, only John McCain and Mike Huckabee are not attorneys. That leaves Mitt Romney, Rudolph Giuliani, Hillary Clinton, Barack Obama, and John Edwards -- yet each has an individual take on the significance of his or her legal degree. Dorf considers how each lawyer-candidate has dealt with America's skepticism about attorneys by attempting to turn the degree into an asset, or at least neutralize it.
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