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May 2008 - Posts
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I ended my last column by raising the question of why, for decades, Americans have consistently elected the less intelligent of the two presidential candidates between whom they have been asked to choose, and by asking how the Democrats might deal with the fact that they have two highly intelligent potential candidates in this years presidential race. Since then, the New York Times has also addressed this issue. With the headline The Snare of Privilege: Elitist is the label they all run from. But why, exactly, are Americans so allergic to it?, the Times noted, ironically, that the least privileged of the contenders in the 2008 presidential race, Barack Obama, will still have to fight being tagged as privileged, and so ensnared. ...
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Last week, the Third Court of Appeals in Austin, Texas, issued a very significant and very seriously mistaken ruling, In re Sara Steed et al. The case involved 38 women from the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS), who challenged the states removal of all the children from their FLDS compound in Eldorado, Texas when authorities entered on the basis of reports that a 16-year-old girl was being physically and sexually abused.
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Last month, in the case of Stevens v. Publicis, a New York intermediate appellate court held that a series of emails was sufficient to modify an employment contract, because the emails (which included signature lines) counted as signed writings, provided details as to the contract modifications and clearly expressed both parties' unqualified acceptance of the modifications. ...
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Last month, the U.S. Supreme Court heard argument in Giles v. California. The case presents the question whether the introduction of a murder victims prior police statement against a defendant on trial for her murder violates the Confrontation Clause of the Sixth Amendment. The Confrontation Clause provides every criminal defendant with the right to be "confronted" with the witnesses against him, which includes the right to cross-examine them. ...
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Recently, the California Supreme Court cleared the way for same-sex couples to marry, ruling that the states current ban violates both the equal protection and due process guarantees in the California constitution. Importantly, the court held that same-sex couples must have access to marriage, rather than to some alternative, but equivalent legal status such as the civil union or the domestic partnership. ...
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Last month, Yale University was caught up in a controversy over the senior art project of senior Aliza Shvarts. Shvarts first confirmed, then denied, then once again confirmed, that, over a period of nine months, she had repeated the following procedure: First, she inseminated herself. Then, two or three weeks later, at the end of her menstrual cycle, she took an abortifacient, to ensure that, had she become pregnant, the pregnancy would be terminated. She planned to use the blood resulting from the use of the drug in her department's end-of-the-year art exhibit. Soon, Shvarts was in the ...
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In its recent 4-3 decision, In re Marriage Cases, the California Supreme Court invalidated two state laws that had limited marriage to opposite-sex couples. To exclude same-sex couples from the right to marry, the court held, infringes both the due process and equal protection guarantees in the California constitution. Unless the decision is stayed, gay and lesbian couples can begin applying for California marriage licenses in thirty days. In this column, Part One in a two-part series, we will discuss how the California decision affected the national legal landscape in this area; explain the evolution of California's ...
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Whenever a court hands down a decision on a controversial issue, and in so doing overturns either a popular vote or the judgment of an elected legislature, the question arises whether the court has overstepped the proper role of a judicial body. The California Supreme Court's recent decision in In re Marriage Cases, declaring that the right to marry must extend to same-sex couples, puts this question into sharp focus. The Tenuous Line Between Courts' Legitimately Protecting Rights, and Illegitimately Setting Policy On one hand, judges have a duty to enforce constitutional commands even if that means striking ...
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In a highly-publicized ruling last week, the California Supreme Court required the State to offer marriage to gay and lesbian couples on the same terms as those enjoyed by opposite-sex couples. That decision will undoubtedly prompt volumes of analysis and commentary. In this column, I will offer a few preliminary perspectives and thoughts on the aftermath the ruling might generate. The People of California Can Negate the Court's Decision, But Should That Power Be Considered Routine or Somewhat Disturbing? First, as has been noted by my fellow FindLaw columnist Michael Dorf and others, the California high court ruling might ...
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In the more than six years since President George Bush first announced the creation of military commissions to prosecute detainees allegedly responsible for terrorism, war crimes, and other misdeeds, there has not been a single full-blown military commission trial. (An Australian prisoner accepted a plea bargain last year and received a short sentence, which he served back in his home country.) This should change in the next few months. The trial of Guantanamo detainee Salim Hamdan is now set to start on July 21, with motions hearings beginning on July 14. A few other detainees have already been ...
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Last week, hundreds, if not thousands, of Wall Street analysts, business journalists and lawyers listened, either in person or via webcast, to a fascinating, historic four-hour oral argument at the Rhode Island Supreme Court. The argument concerned whether the lead paint industry will have to pay up to $2 billion to remove lead paint from 180,000 homes in the state. (Interested readers can find the webcast at http://198.7.228.139/content/RI_Courts/Lead_Paint_Appeal_2008_05_15/msh.htm.) In this two-part series of columns, I will discuss the core legal issue at the heart of the appeal. The Context: Lead Paint Litigation and Its Origins ...
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Last week, the California Supreme Court handed down a landmark ruling legalizing same-sex marriage in the nation's most populous state. With the decision in In re Marriage Cases, California becomes only the second state in the country to grant same-sex couples the right to enter into marriages that are in name as well as substance the full equal of opposite-sex couples' marriages. Like the ruling by the Massachusetts Supreme Judicial Court in the 2003 case of Goodridge v. Dep't of Public Health, last week's California ruling rested in part on the fact that the state already provided ...
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In an earlier column, I raised the matter of whether, and how, Senator Barack Obama's conspicuous intelligence may act as a barrier to his being elected president. I am returning to that subject now because it is clear, as the presidential primaries come to a close and the presumptive nominees – Obama for the Democrats, and Senator John McCain for the Republicans – begin their efforts to define each other for the general election, that this is going to be an issue. As I noted in my prior piece, Republicans have consciously and consistently run presidential campaigns ...
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How does one remove a frequently-used word from the discourse of politics and cleanse it of its negative meanings? It sounds impossible, if not outright foolish, but a group who identify themselves as evangelical Christians, and who have published "An Evangelical Manifesto," wants to do just that. Their goal is immensely difficult, if not impossible. But this move still may bode well for the future of discourse involving religion. What the Word "Evangelical" Has Meant in American Politics Over at Least the Last Sixteen Years The problem the group faces is ...
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Earlier this month, Congress sent the President a bill, entitled the "Genetic Information Nondiscrimination Act" (or "GINA"), which Bush is expected soon to sign into law. The law would prohibit employers, as well as insurance companies, from discriminating on the basis of a person's genetic test results showing her predisposition to illnesses, such as cancer or heart disease. Under GINA, employers' decisions about hiring, firing, and promotion, as well as insurance companies' decisions about subscriber eligibility and premiums, could not rest on genetic information of this sort. GINA has much to recommend it. It fights discrimination against vulnerable people, ...
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As has been widely reported, critically-acclaimed actor Heath Ledger recently died, at age 28, of an accidental drug overdose. He is survived by both of his parents, three sisters, a two-year-old daughter, Matilda, and, potentially, an 11-year-old child whom tabloids have suggested he fathered, with an older woman, while he was still in high school. Although Ledger's Will bequeathed everything to his parents and sisters, we argued in the first part of this series that his entire estate would pass to Matilda if New York law were applied. However, California or Australian law might, alternatively, apply. ...
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The death at age 28 of critically acclaimed actor Heath Ledger left Hollywood stunned. His body was found in a Manhattan apartment, surrounded by a number of prescription bottles. The cause of death, according to the report of New York's chief medical examiner, was the combined toxic effect of painkillers, sleeping pills, and anti-anxiety drugs. Before his death, Ledger had been catapulted to fame by his role in the acclaimed film Brokeback Mountain, in which he gave a heartbreaking performance as a rugged, but secretly gay cowboy. Fame was not the only outgrowth of Ledger's Brokeback Mountain ...
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This week, Senator John McCain sought to shore up his support among conservatives by talking about what kinds of judges he would nominate if elected President. In one sense, McCain's remarks were completely predictable. For as long as I can remember, GOP candidates have used attacks on the judiciary as a bloody shirt to galvanize a right-wing base for which overturning liberal precedents, especially Roe v. Wade and decisions excluding prayer from public schools, remain passionate priorities. In a speech that could just as easily could have been given by any GOP presidential nominee since Barry Goldwater, ...
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One of the most viable challenges to the Bush Administration's warrantless wiretapping program is a lawsuit brought in federal court in Oregon by an Islamic charity,the Al-Haramain Islamic Foundation, that alleges that it was subject to secret surveillance. In this case, unlike in the other National Security Agency (NSA) cases, the plaintiffs can demonstrate that the government actually listened to their conversations. That's because, as the Treasury Department was preparing to freeze the organization's assets, it inadvertently sent Al-Haramain attorneys an NSA log, classified as "Top Secret," of intercepted calls. The case involves the controversial and much-discussed "state secrets ...
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Last week's decision by the Supreme Court in Crawford v. Marion County Election Board was an important election law ruling. But it was also much more. In today's column, I will discuss at least three noteworthy aspects of the opinions handed down by the Justices that reveal significant features of the emerging Roberts Court. What the Court Held and Its Importance for Political Contests Let us start by recapping the case. Plaintiffs challenged a 2005 Indiana law enacted on completely partisan lines (with Republicans in favor, and Democrats against) that required citizens voting in person on election day ...
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Presidential candidates John McCain and Hillary Clinton have both recently endorsed a ìgas tax holidayî—a temporary suspension of the federal 18.4 cents per gallon excise tax on gasoline and 24.4 cents per gallon on diesel fuel—during the summer months, as a means of affording working Americans some relief from high fuel costs. The proposals differ in one important respect: Clinton would couple the temporary suspension of the tax at the pump with a windfall-profits tax on oil companies. Nevertheless, with or without an accompanying windfall-profits tax, the gas tax holiday is unjustifiable as a matter of policy, and ...
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Last week, the Manhattan-based First Department of New York's Appellate Division sustained a jury's finding that the Port Authority of New York and New Jersey was liable in connection with the 1993 World Trade Center (WTC) attack. Now, unless the New York Court of Appeals -- New York's highest court – reverses that decision, the Port Authority will be required to pay up to $100 million in damages to 55 attack victims (or, if the victims are deceased, to their families). In this column, I will focus on how the court dealt with the most difficult issue ...
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In September 2001, five days after the terrorist attacks that shocked the nation, Vice-President Dick Cheney announced on "Meet the Press" that the US government would need to start working "the dark side." "We've got to spend time in the shadows in the intelligence world," he explained. "A lot of what needs to be done here will have to be done quietly, without any discussion, using sources and methods that are available to our intelligence agencies, if we're going to be successful. That's the world these folks operate in, and so it's going to be vital for us to ...
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Arizona Senator John McCain recently completed a "biographical" tour of the country in an effort to keep his name in the media as the presumptive GOP presidential nominee, given the fact that Senators Hillary Clinton and Barack Obama are currently consuming much of the newsroom oxygen. McCain ended that tour in Prescott, Arizona. A Prescott newspaper noted the symbolism of McCain's final speech at the historic Yavapai County Courthouse. This was the location where McCain's Republican predecessor, Barry Goldwater, started all his bids for office. McCain likes to refer to himself as a Goldwater Republican. Accordingly, the McCain campaign ...
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