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February 2008 - Posts
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FindLaw book reviewer, attorney, and author Elaine Cassel weighs in on journalist Anthony Lewis's new work on the First Amendment. As Cassel explains, while Lewis is a strong believer in First Amendment rights, he also discusses certain scenarios in which he believes the First Amendment does not apply, or applies but only in a limited way. Moreover, Lewis covers not just First Amendment law, but also the Amendment's "life" -- consisting of the stories of litigants and judges who invoked it.
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FindLaw columnist and National University of Ireland-Galway visiting law professor Anita Ramasastry discusses the social network site Facebook's recent decision to allow users to easily delete -- not just deactivate -- their profiles. Ramasastry explains why the prior policy was so harshly criticized, warns users of social networking sites that they still cannot count on permanent deletion of information from the Web, and describes several related Facebook policies that also arguably compromise user privacy.
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FindLaw columnist, attorney, and author Edward Lazarus points out an interesting irony: Retired Justice Sandra Day O'Connor is actively publicizing the problems plaguing state judicial election campaigns, yet it is largely because she retired, and was replaced by Justice Alito, that the current Supreme Court is hostile to campaign finance reform. Lazarus argues, in addition, that while O'Connor is correct to target the problems raised when judges are elected, her proposed solution -- making initial appointments based on merit, and then having judges' terms renewed by election -- is less than ideal.
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FindLaw columnist and human rights attorney Joanne Mariner discusses the situation of the detainees who have recently left, or are soon to leave, the detention facility at Guantanamo Bay. For many Afghan detainees, Mariner explains, the departure is only a transfer -- for they are being moved to a prison in Afghanistan called the Afghan National Detention Facility (ANDF). Mariner raises important questions about the status of the ANDF. While the ANDF is putatively under the control of the Afghan government, the U.S. says it retains a "mentoring" relationship with those who are in charge. Mariner discusses what, exactly, this may mean.
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FindLaw columnist and Cardozo law professor Anthony Sebok discusses a significant new Supreme Court decision that held that the federal Medical Devices Amendments (MDA) of 1976 completely preempted the New York tort claims brought by a man who suffered severe injuries during his coronary angioplasty when his doctor overinflated a medical device called the Evergreen Balloon Catheter, causing it to burst. Sebok explains why a prior MDA case reached a different result regarding preemption, and describes the general trend of the Court's recent preemption cases.
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FindLaw columnist and Columbia law professor Michael Dorf offers an in-depth analysis of a recent Supreme Court decision regarding the constitutional right of criminal defendants to confront their accusers. The case raises both an issue of retroactivity and an issue regarding whether a state court may protect criminal defendants' rights even more avidly than the Supreme Court does. As Dorf explains, the way the Justices divided in this case seems puzzling at first glance, but the pivotal role Justice Stevens played may offer an explanation.
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FindLaw columnist and former counsel to the president John Dean discusses yesterday's controversial New York Times story quoting sources claiming that U.S. Senator and presidential candidate John McCain engaged in inappropriate conduct with respect to lobbyist Vicki Iseman. Dean raises questions about the Times's decision to publish the story. However, Dean also questions why, given that both McCain and Iseman have denied the story's claims, neither has sued for defamation or demanded a retraction to date.
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In Part Two of a two-part series of columns, FindLaw columnist, attorney, and author Julie Hilden discusses the different ways reputation is protected online and in the real world. Hilden focuses on the problems online anonymity poses for the would-be plaintiff who would like to sue someone who has posted damaging content about him or her. In particular, she discusses a recent California appellate case that provides insight into how courts cope with the decision whether to unmask an anonymous online writer -- and illustrates how libel cases regarding online statements may be dismissed before the writer's identity is ever revealed.
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FindLaw columnist and visiting Princeton law and public affairs professor Marci Hamilton takes strong issue with a recent Op Ed by Catholic priest Andrew Greeley that stated that the problem of clergy child sex abuse "will be solved only when priests assume full responsibility for self-policing." Hamilton argues that not only is self-policing doomed to fail, but that sweeping change is needed to truly work to solve child sex abuse throughout society -- both within the Catholic Church and in many other contexts. Most important of all, Hamilton contends, is to abolish the relevant statute of limitations that prevent victims from confronting their abusers and seeking justice.
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FindLaw columnist and National University of Ireland - Galway visiting law professor Anita Ramasastry discusses the First and Fourth Amendment issues raises by U.S. government searches of laptops and other electronic devices at international borders and international airports. Ramasastry discusses the recent suit by two public interest groups to enforce a Freedom of Information Act (FOIA) request to disclose government policy regarding this category of searches. She also covers the handful of federal cases, in the U.S. Courts of Appeals for the Fourth and Ninth Circuits, that have taken on the First and Fourth Amendment issues involved when laptops are searched.
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FindLaw columnist and visiting Columbia law professor Sherry Colb discusses the recent film "4 Months, 3 Weeks and 2 Days," which illustrates the human cost of the abortion ban in Romania under Ceausescu, by depicting a woman's desperate search for an illegal abortion. Colb also considers, more generally, the role that the inevitability of a black market in abortions should play in our thinking about whether abortion should be legal. She suggests that for some, it may be a reasonable stance to be "pro-life and pro-choice" -- that is, to be pro-life, in very strongly opposing abortion, yet pro-choice, in accepting abortion's legality in order to prevent the horrors of the black market.
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FindLaw guest columnist John R. Steer, former Vice-Chair of the United States Sentencing Commission, in collaboration with FindLaw guest columnist Mark Allenbaugh, a former Staff Attorney for the Commission, discusses the current legal situation regarding federal cocaine sentencing policy. With the large disparity between crack and powder cocaine sentences the object of longstanding criticism, Congress has decided to close the gap with respect to offenders sentenced in the future. Now, the Commission is recommending that Congress address the gap retroactively as well. However, Attorney General Mukasey has opposed this measure, which would entail releasing some prior crack offenders, due to worries that the offenders may be dangerous. In response, Steer contends that in light of judges' discretion and input from probation officers and prosecutors, the few violent offenders surely will not be among those released.
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FindLaw guest columnist and William Mitchell law professor Donna Byrne discusses a recent, significant decision by the California Supreme Court. The decision allowed a suit to go forward that seeks to force farmed-salmon purveyors to disclose on labels when they have added colorants to turn gray salmon a more appetizing color. The purveyors had argued -- and a lower appeals court had ruled -- that federal law on food labeling preempted the relevant California law, but the California Supreme Court disagreed. As Byrne explains, the decisions is especially significant because the colorants at issue might turn out to be dangerous, and salmon farming is endangering wild salmon.
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FindLaw columnist and U.C. Davis law professor Vikram Amar contends that each of the current Presidential candidates should be asked his or her opinion on shifting from the Electoral College system to a system that would ensure that the President always will be the person who won the votes of the largest number of Americans in the election. Amar explains how this National Popular Vote system could be put into place either by the states (or simply eleven of the most populous) or by the President- and Vice President-elect, who could resign in favor of their popular-vote-winning counterparts
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FindLaw columnist Edward Lazarus discusses the role of the superdelegates -- the 796 individuals who have been put in the spotlight because they may well cast the deciding votes as to whether Barack Obama or Hillary Clinton will be the Democratic presidential nominee. Lazarus begins by considering whether, as some have suggested, it will be a Bush v. Gore-like situation if Obama gets more votes (and thus more delegates) but Clinton is nevertheless the nominee because she is the superdelegates' choice. Lazarus then considers the superdelegates' role, argues that they should not make early commitments, and suggests which factors they may rightly take into account in choosing between the two candidates.
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FindLaw columnist and Columbia law professor Michael Dorf discusses the Bush Administration's decision to seek the death penalty, via statutorily-authorized military commission proceedings, for Khalid Shaikh Mohammed and five others who allegedly played roles in the 9/11 attacks. Dorf considers the various arguments for the imposition of the death penalty, and explains why each might or might not apply in these extraordinary circumstances -- considering factors such as the difficulty of deterring someone on a suicide mission with the threat of the death penalty, and the possibility that executions could lead to the deaths of more innocent people.
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FindLaw columnist and Cardozo law professor Anthony Sebok discusses a surprising recent decision from the Oregon Supreme Court. The case was brought by the widow of an Oregon smoker who died from lung cancer. She alleged, and a jury found, that her husband was defrauded by the tobacco company Philip Morris and that the fraud led to his death. The jury therefore awarded her $79.5 million in punitive damages against Philip Morris. Philip Morris then challenged the jury instructions, and the U.S. Supreme Court struck them down as unconstitutional. Nevertheless, the Oregon Supreme Court let the original punitive damages award stand. Sebok critiques its reasoning.
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In Part One of a two-part series of columns, FindLaw columnist, attorney, and author Julie Hilden discusses both online and real-world ways in which we attempt to police and protect reputation without inhibiting free speech. Hilden begins her column by noting eBay's recent decision to tweak its feedback system, citing it as one example of many possible reforms to online reputation-based systems. She goes on to contend that while in the real world, libel law is slanted to favor plaintiffs, the situation regarding reputation online is very different -- favoring writers in certain ways, but also protecting non-public-figure targets of speech in some ways as well.
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FindLaw guest columnist and U. Richmond law professor Carl Tobias discusses the views of the three remaining candidates for the Republican Party's nomination for the presidency on one specific topic: the selection of Supreme Court Justices and federal judges. Tobias notes that while all three candidates -- John McCain, Mike Huckabee, and Ron Paul -- similarly decry judges who would depart from the Constitution's text, and express admiration for conservative judicial approaches, notable nuances do differentiate the candidates' positions from each other in important ways.
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FindLaw columnist and former counsel to the president John Dean contends that Republicans, once the proponents of fiscal austerity, have since the Reagan Administration been far more irresponsible when it comes to the economy than Democrats. He also argues that modern Republicans have betrayed the party's prior small-government, free-trade values.
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FindLaw columnist and Hofstra law professor Joanna Grossman and FindLaw guest columnist and U. Pittsburgh law professor Deborah Brake comment on a decision by the U.S. Court of Appeals of the Sixth Circuit that the Supreme Court has opted to review. As Grossman and Brake explain, the Sixth Circuit decision holds that employees who participate in good faith in a company's internal investigation of a sexual harasshment complaint are not protected from suffering retaliation from the company as a result of their doing so. Grossman and Brake argue that this holding is completely at odds with prior Supreme Court precedent rewarding employers for conducting such internal reviews by potentially limiting their legal liability when they do so.
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FindLaw columnist and Hofstra law professor Joanna Grossman discusses a recent and very significant New York appellate ruling holding that while New York law does not authorize same-sex marriages, it does authorize their recognition when the marriage occurs outside of New York. As a result of this holding, the court also reasoned that it was discriminatory for an employer to grant spousal healthcare benefits to opposite-sex, but not same-sex, spouses. The ruling opens the way for New York same-sex couples to marry elsewhere and have their marriages fully recognized by the state, so that they are on a par with opposite-sex couples when they return to New York.
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FindLaw guest columnist and U. Richmond law professor Carl Tobias contends that conservative commentators are off-base when they criticize Senator and presidential candidate John McCain for his willingness to participate in bipartisan efforts to select federal judges. Tobias contends that, even putting aside the inherent virtues of bipartisanship, in this context, McCain's willingness to take bipartisan action may actually help achieve conservatives' aims, by ensuring that the federal bench has the strong conservative representation they seek. Tobias cites, in particular, the way in which McCain's bipartisanship might have been superior to President Bush's uncompromising stance in ensuring that the U.S. Court of Appeals stayed solidly conservative even in the event that a Democratic president is elected this year.
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FindLaw columnist and Princeton visiting law and public affairs professor Marci Hamilton argues that the Connecticut Supreme Court made the right decision when it recently ruled against a religious landowner who was attempting to invoke the federal Religious Land Use and Institutionalized Persons Act (RLUIPA). The court held that the particular decision at issue was not the kind of "individualized assesment" that triggers strict scrutiny under RLUIPA, even though it was applied in an individual case. Hamilton applauds the decision as a victory for common sense, and praises the court for including in its decision the point that, before RLUIPA, the idea of religious exercise did not encompass church building projects.
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FindLaw columnist and visiting Columbia law professor Sherry Colb clarifies the complex law surrounding a difficult and significant question: Can a criminal suspect invoke his or her Fifth Amendment right against self-incrimination when asked for the password necessary to access his or her computer files? Colb discusses a recent ruling by a Vermont-based federal magistrate judge concluding that, indeed, the defendant's Fifth Amendment rights were implicated in a password request. However, she suggests that the better answer was that the right did not apply, because, under the factual circumstances of the case, the provision of the password was not "testimonial," as Fifth Amendment doctrine requires.
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