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March 2008 - Posts
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The next time you are online, you may come across an ad from Alaska Airlines offering you a really good deal - perhaps a roundtrip ticket to Hawaii for $200. Your neighbor might also be surfing online, but Alaska Airlines might offer her a significantly different deal -- perhaps a roundtrip ticket to Hawaii for $400. The reason for the difference will be that each of you is receiving an offer targeted specifically at you - even if the offer appears in a banner ad on a webpage. Currently, this type of advertising - which falls into the ...
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Last week, the Wall Street Journal reported a surge in pregnancy discrimination complaints filed with the EEOC. Meanwhile, a recent article noted a trend among the nation's largest law firms of extending paid leave for new mother and fathers. And, finally, a pair of Canadian sociologists just published a study finding that the productivity of women lawyers drops dramatically after they have children. These stories come from varied sources and address different issues, but they tell pieces of the same story: the story of the continuing struggle to ensure pregnant women and mothers are integrated fully into the ...
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Recently, observers have voiced their fears that the Supreme Court will uphold a new Federal Communications Commission (FCC) policy, despite the fact that the policy threatens First Amendment rights. For instance, a March 23 editorial in the New York Times commented that "[w]e hope the Supreme Court does not authorize the F.C.C. to return to its censorial policies," but conveyed a strong fear that the Court would do just that. The Times's fear is quite well-grounded. The best explanation for why the Court has decided to review the new FCC policy -- which addresses the ...
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On March 10, the United States House of Representatives attempted to enforce its contempt of Congress citation against upper-echelon White House officials in court. The basis for the citation was that the officials had asserted Executive Privilege to resist congressional subpoenas that had sought information on the controversial dismissals of numerous U.S. Attorneys when Alberto Gonzales was the U.S. Attorney General. To enforce its subpoenas, the House filed suit in the U.S. District Court for the District of Columbia. It asked the Court for a declaratory judgment that the officers must comply with the subpoenas. In this ...
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In this column, I'll explain why certain key 2008 battleground states for the general election - such as Ohio, Virginia, and Florida - could eliminate the relevance of electoral college math for the current Democratic primary. The Shadow the Electoral College Is Casting on the Democratic Primary The Democratic contest between Senators Clinton and Obama has highlighted the issue of "electability" like never before. Granted, analysts and voters in prior presidential election years talked a fair amount about the electability of various primary contestants. In 2000, for example, George Bush's perceived "electability" advantage helped him secure ...
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As the election approaches, the campaign is certain to focus more intently on the future of the Supreme Court and, in particular, on the issue of who might replace Justice John Paul Stevens, the oldest justice at 88 years old. Yesterday's decision in Medellin v. Texas, however, provided an opportunity to put aside the crystal-ball-gazing and enjoy the fact that, after 33 years on the Court, Stevens, who penned a trenchant concurrence in the case, remains a vital force - full of insight and clear thinking. The Facts, Rulings, and Executive Decision in the Medellin Case The ...
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Last Tuesday, the Supreme Court press focused on oral arguments over the constitutionality of the DC gun ban. But the same day the Court also issued a barely-noticed, but quite significant election law opinion. The opinion, unfortunately, could lay the groundwork for upholding a host of draconian laws making it harder for some people to vote. Granted, the result in Washington State Grange v. Washington State Republican Party is a good one: Voters will have more choice over the kinds of primaries they want in their states. However, the reasoning by which the Court got to that result ...
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"Was George Washington a terrorist?" asked Bill Frelick, Human Rights Watch's refugee policy director, only semi-facetiously. What sparked his question was the exceedingly broad definition of terrorist activity employed in U.S. immigration law. That definition, as expanded in the USA PATRIOT Act and REAL ID Act, applies to "any activity which is unlawful under the laws of the place where it is committed," when that activity involves the use of a weapon or "dangerous device" with the intent "to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property." The ...
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Last week, a state appellate court in New Jersey issued a remarkable decision: It held that a bar has a duty to make sure that an intoxicated person does not get into a car that is driven by another intoxicated person, even if the driver did not consume alcohol in the bar or appear intoxicated. The logic of this decision, Bauer v. Nesbitt, takes the use of tort law to regulate drunk driving into new and uncharted territory. The Facts of the Case The facts of Bauer are sad and all too familiar. James Hamby, age ...
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FindLaw columnist and visiting Princeton law and public affairs professor Marci Hamilton cites a protest at a recent Federalist Society syposium as providing a strong illustration of how direct democracy can sometimes fail. Protesters expressed their opposition to the views of Ward Connerly, who has prominently supported initiatives at the state level to ban affirmative action. One of their key points was that the Michigan's initiative's wording was misleading, and thus easily misunderstood by voters. Hamilton argues that, due in part to this potential for misunderstanding, direct democracy is very often a poor substitute for representative democracy.
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FindLaw columnist, attorney, and author Julie Hilden continues her two-part series of columns analyzing the pending federal district court case involving the website Wikileaks. Wikileaks aims to become "an uncensorable Wikipedia for untraceable mass document leaking and analysis." However, a bank is now challenging the site's right to host an employee's posting of confidential internal bank documents. Hilden evaluates the analogy between the First Amendment issues in this case, and those the Supreme Court faced when it allowed the New York Times to publish the "Pentagon Papers," a confidential government history of the Vietnam War.
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FindLaw columnist and Hofstra law professor Joanna Grossman and FindLaw guest columnist and Boston University law professor Linda McClain consider what significance the Eliot Spitzer scandal should have for feminists. Grossman and McClain begin by discussing the details and philosophy of the anti-prostitution law Spitzer signed while in office, noting that he even insisted a particular provision be added to toughen the law. They then consider how Spitzer's hypocrisy might fit into the contrasting perspectives of second-wave and third-wave feminists, respectively.
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FindLaw columnist, attorney, and author Edward Lazarus weighs in on the lessons we should take from the Bush v. Gore Supreme Court decision, and which way these lessons should cut in the controversy about whether Michigan and Florida delegates will vote at the Democratic Convention. Although the Clinton campaign has argued that Bush v. Gore counsels in favor of counting the delegates' votes, Lazarus argues that the decision's true message concerns integrity, consistency, and setting clear, fair rules ahead of time that are later neutrally and fairly enforced.
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FindLaw columnist Vikram Amar and FindLaw guest columnist Alan Brownstein, both U.C. Davis law professors, discuss a recent ruling by a California appellate court upholding a law that effectively prohibits home schooling. Amar and Brownstein note that the court properly applied the applicable constitutional standard -- which asks only for a "rational basis" for the law. However, they contend that, especially given the magnitude of the liberty interest involved, the distinctions the California law makes are troublingly weak and inconsistent.
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In the wake of New York Governor Eliot Spitzer's decision to resign in light of revelations that he used the services of high-end prostitutes, FindLaw columnist and Columbia visiting law professor Sherry Colb contrasts the scandal with another from ten years ago. In 1998, the world was shocked to learn of President Clinton's inappropriate sexual conduct with White House intern Monica Lewinsky but of course, unlike Spitzer, Clinton did not resign. Colb offers a provocative analysis of possible parallels and contrasts between the two high-profile scandals.
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FindLaw columnist and human rights attorney Joanne Mariner discusses the ongoing trial, in Milan, of twenty-six Americans who are alleged to have kidnapped an Egyptian imam known as Abu Omar. The Americans are being tried in absentia, and are virtually all claimed to be CIA operatives. Mariner, who interviewed Abu Omar in his home in Egypt last December, recounts his remarks regarding his case. She also discusses the highly controversial practice of rendition -- which occurs when the U.S. turns suspects over to foreign governments for interrogations that would be illegal if directly conducted by the U.S. In Abu Omar's case, it is alleged that the CIA kidnapped him in Italy, then turned him over to Egypt for brutal interrogation that included torture.
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FindLaw columnist and Cardozo law professor Anthony Sebok contrasts two recent Oregon Supreme Court decisions relating to the proper ratio between punitive and compensatory damages, and the requirements of the U.S. Constitution's Due Process Clause. In last month's decision, Sebok explains, the Oregon Supreme Court had seemed to defy the U.S. Supreme Court's guidance. In this month's decision, Sebok argues, the Oregon Supreme Court may well be acting more like a legislature than it should.
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FindLaw columnist and Columbia law professor Michael Dorf responds to Justice Antonin Scalia's attack, in a speech last week, on the concept of a "living Constitution." Dorf argues that, properly understood, the metaphor of the "living Constitution" reflects a sensible interpretive method -- one that simply holds that, while Framers' intent and original understandings do carry some weight as we decide what a particular constitutional provision means today, they are not the end of the story.
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FindLaw columnist and former counsel to the President John Dean offers an interesting, provocative take on the Clinton/Obama battle for the Democratic nomination, placing it into the classical five-act dramatic structure. Dean suggests that we are currently in the fourth act -- and predicts that the remaining primaries will fail to select a nominee. He also envisions a momentous and potentially suprising fifth act, at the convention, that may well result in an Obama/Clinton or Clinton/Obama ticket.
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FindLaw columnist and visiting Princeton law and public affairs professor Marci Hamilton discusses a challenge faced by presidential candidates John McCain and Barack Obama: how to handle the endorsement of religious leaders whose preachings including messages of hate. Hamilton calls upon both McCain and Obama to reaffirm First Amendment values by emphasizing all Americans' freedom of speech and religion, yet exercising their own freedoms by decrying and repudiating messages of hate.
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FindLaw columnist, attorney, and author Julie Hilden comments on the case pending in federal district court in San Francisco against Wikileaks, a website with the mission of "developing an uncensorable Wikipeida for untraceable mass document leaking and analysis." The plaintiff is a Cayman Islands banks whose employee posted confidential documents on Wikileaks. Hilden explains why the judge, whose initial order seemed to side with the bank, later rescinded that order, so that the documents at issue now continue to be accesssible on Wikileaks.
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FindLaw columnist and Hofstra law professor Joanna Grossman discusses a recent Supreme Court decision regarding the Age Discrimination in Employment Act (ADEA). As Grossman explains, the Court took a substantive -- rather than a formalistic -- approach in deciding what kind of document, submitted to the EEOC, can count as an employee's "charge." The issue matters greatly because a "charge" is necessary to start the clock on the 60-day period that must expire before an employee can validly file an ADEA suit. Grossman contrasts this ruling favorably with other recent Court anti-discrimination law rulings that, she argues, have caused employees to lose based on technicalities.
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FindLaw columnist and visiting Columbia law professor Sherry Colb discusses an Arizona Supreme Court decision that the Supreme Court recently opted to review. The decision regards whether police, consistent with the Fourth Amendment, can search an arrestee's car under the "search incident to arrest" doctrine, even when he or she is already secured within a police car. Colb explains the evolution of the Supreme Court's Fourth Amendment doctrine regarding the search that can accompany a lawful arrest. In particular, she focuses on the reasons why the Court has sometimes allowed police to conduct such a search even when it was not necessary to ensure that the suspect was fully disarmed or to preserve evidence.
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