|
|
 |
|
|
April 2008 - Posts
-
|
Recently, Texas authorities entered the Yearning for Zion (YFZ) Ranch, which is one of the Fundamentalist Latter Day Saints (FLDS) compounds, with a warrant based on calls from a person who alleged that she was an underage girl being subjected to physical and sexual abuse, including rape, at the Ranch. Once the authorities entered, though, they discovered pregnant underage girls, girls with more than one child, papers indicating that rampant polygamy was occurring at YFZ, and even a document involving cyanide poisoning. The authorities then intelligently made the decision that they had to remove all of the children from a ...
|
-
|
On April 16, the U.S. Supreme Court heard argument in Kennedy v. Louisiana, a case challenging the constitutional validity of a death sentence imposed for the rape of a child. In this column, I will take up some of the intriguing ideas that emerged from the questions that various Justices posed to the attorneys arguing before them. In particular, Justice Ruth Bader Ginsburg and Chief Justice John Roberts, in their efforts to understand the force and content of earlier Court precedents, revealed important clues to their respective views on a variety of issues. Precedent on Point: Coker v. Georgia ...
|
-
|
It is old news to say that America has begun to have second thoughts about its relatively liberal rules of civil litigation. Tort reform has been the order of the day at both our state and federal legislatures. Meanwhile, the federal courts, led by the Supreme Court, have made it more difficult for consumers and workers to sue by limiting class actions, heightening pleading requirements, and expanding the scope of federal preemption. Ironically, while the United States is trying to make it harder to sue, the European Union ("EU") is trying to make it easier to sue, at least ...
|
-
|
Recently, Harry Potter author J.K. Rowling and Warner Brothers sued a small publisher that is planning to sell a lexicon/encyclopedia of her work. Commentary on the suit - such as Joe Nocera's February piece, supporting the small publisher, for the New York Times -- has played upon themes that have become increasingly familiar lately: the right of the original author to control her creative work, versus the supposed right of others to freely make use of it. The problem with these themes, however, is that the first is a constitutional and statutory reality, and the second still ...
|
-
|
This week marks the end of the Supreme Court's oral argument calendar for the 2007-2008 Term. Although many of this Term's blockbuster cases haven't yet been handed down (and won't be issued until May and June), it's not too early to begin looking ahead to the 2008-2009 Court session, and the important cases and issues the Justices will take up then. One noteworthy case on which the Court granted review a few weeks ago is Summum v. Pleasant Grove City. As fellow FindLaw columnist Michael Dorf noted earlier this month, the case lies at the intersection of a number ...
|
-
|
These days, when one speaks of a "war without end," the reference is usually to Iraq. But in the legal world, the phrase also provides an apt description of the five-decade-long fight over the constitutionality of the death penalty. Last week's decision in Baze v. Rees, in which the Court rejected a challenge to Kentucky's three-drug protocol for carrying out lethal injections, is just the latest painful yet inconclusive battle. Like the Court's many dozens of death penalty decisions, issued over the last 45 years, the decision in Baze ensures only that the larger war will continue and ...
|
-
|
"It's Malaysia's Guantanamo," the woman told me. I was visiting Kuala Lumpur, Malaysia, last week, to talk to an activist from a local human rights group. The group, SUARAM, has been leading a fierce campaign to abolish Malaysia's Internal Security Act (ISA), a law under which more than 70 men are currently held in preventive detention. Some of the men are suspected of belonging to Jemaah Islamiyah, a militant Islamist group responsible for terrorist bombings in Bali and elsewhere. Others are accused of common crimes like forgery. What they have in common--and what links them to detainees at Guantanamo--is ...
|
-
|
The voluntary public financing system for U.S. presidential candidates, established in the post-Watergate era, is in its last throes. As it collapses, presidential candidates have been calculating--and recalculating--the advantages of opting in or out. Sen. John McCain, the presumptive Republican presidential nominee, has accused Sen. Barack Obama, the likely (though not certain) Democratic presidential nominee, of going back on his word; according to McCain, Obama had said he would participate in the public financing program in the general election. Democrats, meanwhile, have gone to federal court for permission to sue McCain for improperly trying to opt ...
|
-
|
Last week, in Baze v. Rees, the U.S. Supreme Court rejected a constitutional challenge to Kentucky's administration of the death penalty via lethal injection. To say that the case divided the Justices would be a gross understatement. There was no opinion for the Court as a whole, and the nine Justices wrote a total of seven separate opinions. In the short term, the Baze decision will result in the resumption of executions, which had been subject to a de facto moratorium since the Court agreed to hear the case. In the long term, the decision's likely impact is ...
|
-
|
This column is Part Two in a two-part series on this subject. Part One appeared recently on this site. - Ed. At the outset of the Summer 2008 travel season, as many readers will be well aware, airlines left countless thousands of passengers stranded. The delays and cancellations occurred because airlines had unconscionably failed to keep planes in compliance with safety regulations, and the Federal Aviation Administration (FAA) had finally been embarrassed by whistleblowers into taking action. Debacles like this remind us that this deregulated industry cares little about its cargo. Indeed, in this series of ...
|
-
|
Yesterday, Wednesday, April 16, the Supreme Court heard oral argument in Kennedy v. Louisiana, on the question whether Louisiana may constitutionally impose the death penalty on an offender convicted of committing child rape. The Court had previously ruled in Coker v. Georgia that the rape of an adult (though, in that case, it was the rape of a sixteen-year-old) could not be punished with death. In this case, the question is whether a stepfather can constitutionally be put to death for the brutal rape of his eight-year-old stepdaughter. The Court's decision, which is likely to appear in ...
|
-
|
In my last column, I analyzed the question of what relevance the humane killing of pet animals might have for assessing the constitutionality of execution by lethal injection - the method of capital punishment now facing a challenge before the U.S. Supreme Court in Baze v. Rees. In this column, I ask, and suggest answers to, a somewhat different question. The U.S. Constitution requires that if we impose the death penalty on a convicted criminal, we do so in a manner that is humane and that does not cause unnecessary pain or torment. On that test, the ...
|
-
|
This series considers the continuing struggle to ensure that pregnant women and mothers are fully integrated into the American workplace. A dramatic rise in pregnancy discrimination complaints and a recent study demonstrating the adverse effects of motherhood on the productivity of women lawyers together provide the occasion to revisit the state of the laws protecting pregnant women. Pregnancy is the first potential conflict between motherhood and work, one that sets the stage for a career-long struggle by mothers to succeed, despite shouldering the lion's share of the burden of childbirth and, typically, of childrearing. Part One of this ...
|
-
|
Recently, I discovered that a law school friend and I share one major regret: We both wish we had combined our law school education with a business school education. After all, we might have received both MBAs and JDs in just four years. Granted, our student loans would have increased accordingly -- but the increase probably would not have caused us to make different choices, in light of the large loan burden we already carried from law school alone. Interestingly, neither of us actually went into business; he's a public interest attorney and I combine writing and ...
|
-
|
Last week, the United States Court of Appeals for the Second Circuit decertified a nationwide class action that would have provided a single, massive vehicle for suing the tobacco industry in connection with its promotion of "light" cigarettes. The plaintiffs contended the tobacco company defendants had falsely advertised the purported health benefits of "lights," thereby inducing millions of consumers into using light cigarettes, rather than not smoking at all. The decision is noteworthy in and of itself, and also significant in what it says about the ability of courts to address this kind of nationwide issue of what ...
|
-
|
Constitutional lawyers and professors are not the only ones who write about improving our constitutional framework. And people who care about the Constitution (which should include all Americans) benefit by reading and considering the works of people from fields other than constitutional law, perhaps especially political science. In today's column, I'll discuss some ideas of University of Virginia Political Scientist Larry J. Sabato developed in his recently published book, A More Perfect Constitution: 23 Proposals to Revitalize Our Constitution and Make America a Fairer Country. In particular, I'll focus on Sabato's proposal to more than double the size of ...
|
-
|
"Why Jordan?" The question puzzled Abu Hamza al-Tabuki, a Saudi citizen who claims that US agents arrested him in Afghanistan in December 2001 and, after interrogating him in Pakistan, flew him in a private jet to Jordan. Because he was not Jordanian and had no past connection to Jordan, he did not understand why he was sent there. "Why wasn't I sent to America since I was arrested by Americans?" al-Tabuki asked, in a narrative he sent to contacts in Jordan after he was released. The best answer to al-Tabuki's question can probably be found in the ...
|
-
|
The reality is that it's extremely hard to do hands-on parenting and professional work at the same time - and that women, very disproportionately, are the ones who attempt it. Thus, it came as little surprise when a recent Canadian study by Jean E. Wallace and Marisa C. Young proved, among other things, that women attorneys with children rack up fewer billable hours than women attorneys without children. From a policy perspective, what should we make of this finding, and others that the study's authors made? The Study: Its Potential Flaw and ...
|
-
|
Last week, the U.S. Court of Appeals for the Second Circuit issued its opinion in McLaughlin v. American Tobacco Co. The decision constituted a major win for Big Tobacco - and a major loss for the plaintiffs. The theory behind the case - which was a class action -- was simple. The plaintiff class was composed of persons (and the estates of persons) who had smoked lights cigarettes and allegedly suffered harm. The plaintiff class alleged that the tobacco industry has known for years that "light" cigarettes are not safer than regular cigarettes. Therefore, the class ...
|
-
|
Last week, the Supreme Court agreed to review a ruling of the U.S. Court of Appeals for the Tenth Circuit, granting a small religious organization the right to place monuments in two city parks in Utah. The unusual case of Summum v. Pleasant Grove City sits awkwardly at the intersection of three First Amendment doctrines: (1) the doctrine establishing the rights of speakers, including religious speakers, in a so-called "public forum"; (2) the doctrine delineating government's ability, as a speaker itself, to control the content of its message; and (3) the doctrine concerning limits that the Establishment Clause places ...
|
-
|
This is the first in a two- part series of columns by the author on the lack of legal protection for airline passengers. -- Ed. Several years ago, I was stuck on an airplane that sat on the tarmac for just over three hours before taking off. As we waited, a flight attendant treated passengers just as a good Nazi might have. With this experience in mind, I applauded the fact that New York lawmakers recently took action to deal with the growing problem of imprisoning passengers upon planes from which, despite many-hour waits, they are forbidden to disembark. ...
|
-
|
Teenagers, even the ones who are stars at school and elsewhere, can be a challenge. Those who take a wrong turn toward drugs or gangs, to cite just two examples, can be very difficult to handle. Thus, it has not been uncommon in the United States for parents in such desperate straits to send their children to military schools or to wilderness camps. There is also a third choice, however, which was in the news last week: teen boot camps. This choice, as I will explain, should be made illegal around the globe -- with the U.S. State ...
|
-
|
In January, the U.S. Supreme Court heard arguments in the Eighth Amendment case of Baze v. Rees. There, Ralph Baze and Robert C. Bowling challenged their sentences of death by lethal injection as cruel and unusual punishment. The case is important because not only lethal injection itself, but the particular three-drug cocktail utilized in Kentucky and challenged by Baze and Bowling, is common to the federal government as well as to almost all of the states that have a death penalty. As a result, any ruling about the validity of Kentucky's execution protocols could have implications for ...
|
|
|
|