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June 2008 - Posts
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Last week, in Exxon Shipping Co. v. Grant Baker, et. al., the Supreme Court gave the defendants, Exxon, a huge victory. It reduced a $2.5 punitive damages award-the largest ever awarded in a federal court-to $507 million. In this column, I will examine the lessons we can draw from the Court's decision. The real import of the decision, I shall argue, may not lie in what the Court said, but rather in the peculiar voting bloc of Justices that produced the ruling in favor of Exxon. ...
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In a ruling that is years late, but is nonetheless brave and important, a federal appellate court held last week that a prisoner at Guantanamo has been wrongly deemed an "enemy combatant." Huzaifa Parhat, the prisoner whose fate was at issue in the case, has been in US custody at Guantanamo for over six years. Parhat is an ethnic Uighur, part of a Muslim minority from western China. Like the 16 other Uighurs who remain in military detention at Guantanamo, Parhat claims that he was never a combatant and that he ended up in US custody by mistake. Parhat says that he was living with a group of other Uighurs in Afghanistan when the 2001 war started, that his group was led across the border to Pakistan, and that the Pakistanis sold them to the United States for a bounty.
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Before adjourning for the summer yesterday, the Supreme Court ruled, 5-4, that the Second Amendment protects a personal right to possess firearms for, among other purposes, self-defense. Accordingly, in District of Columbia v. Heller, the Court invalidated a D.C. law that bans private handgun possession and requires long guns (rifles and shotguns) to be stored either disassembled or under trigger lock. The majority opinion by Justice Scalia - joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Alito - expressed no doubt that the Second Amendment was originally understood to recognize a personal right (that is, not simply a right to use a gun while part of a militia). ...
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Recent reports indicate that the state of Texas spent many millions handling the events involving the FLDS compound in Eldorado, Texas. The money went to pay for attorneys' fees for the state's lawyers and the private lawyers appointed to represent the children, for DNA testing, and for the costs of overseeing foster placement for the over 400 children from the compound while they were being protected by the state. The implicit message of the headlines about these costs is that this is a large and perhaps unacceptable amount to spend in this context. But how much money would be too much to spend to protect hundreds of children from pervasive statutory rape, sexual abuse, underage polygamous marriage, and a system of grooming boys to participate in abuse? ...
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Five years after it first began, the legal dispute between former same-sex partners Lisa and Janet Miller-Jenkins over the custody of a now-six-year-old girl (known in court papers as "IMJ") has finally come to a close. Pursuant to the Virginia Supreme Court's recent ruling, Lisa, IMJ's biological mother, must honor a Vermont court's order granting Lisa custody and visitation. ...
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The latter half of the twentieth century witnessed a remarkable surge of concern for the rights and welfare of children. Parallel to this concern there has been unprecedented scholarly activity into the history of this subject. Though not as extensive as one would expect, the scholarship has revealed that children's rights and the very comprehension of the emotional, psychological and moral development of the child has been severely limited. The innocence of children and young adolescents was not presumed, in fact there is evidence that the canonists, perhaps the most significant group of lawyers in the middle ages, presumed that children and minors were always prone to do wrong. ...
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Earlier this month, the National Law Journal ran a story noting that a steadily increasing number of courts around the country are instituting bans on witnesses' use of loaded terms in criminal cases. Such forbidden words include "rape," "victim," "crime scene," "homicide," and "drunk." The trend appears to be a reaction to revelations about wrongful convictions of innocent people. Though understandable in some respects, this reaction is unreasonable and likely to frustrate, rather than enhance, the truth-seeking process. ...
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Recently, in United States v. Williams, the Supreme Court upheld a federal statute prohibiting the offering or seeking of child pornography. There is no question that Congress can make such behavior illegal, and punish it harshly. However, the statute in question was constitutionally problematic in several ways. The Court nonetheless upheld it, 7-2, rather than invalidating it and forcing Congress to draft and pass a more clearly constitutional version of the law. Yet that is something Congress surely could have done: What legislator wants to be on the record as voting against an anti-child-pornography law? ...
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IAs has been widely reported, on this website and elsewhere, the California Supreme Court held last month that, under the state's constitution, the right to marriage must be extended to gay and straight couples alike. One of the arguments that supporters of same-sex marriage made was that bans on gay marriage are similar to, and should suffer the same judicial fate as, the bans on interracial marriages that courts struck down in the Forties, Fifties and Sixties, during the heyday of the Civil Rights Movement. Although the analogy between racial minorities on the one hand, and gays and lesbians on the other, may not be perfect in the marriage context, a majority of California Justices embraced the comparison at least to some extent. ...
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In legal circles, the scandal du jour involves Judge Alex Kozinski, the flamboyant, controversial, and brilliant Chief Judge of the United States Court of Appeals for the Ninth Circuit. Over the last week, it has been revealed that a restricted-access website that was owned and operated by his family, and in which Judge Kozinski participated, contained what might best be described as smutty humor -- naughty pictures that were mostly intended to amuse. Some of the photos were arguably in very bad taste, and some were pornographic, but none were obscene. ...
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Google is attempting to create a comprehensive map of the world -- with photos of individual streets and even houses -- through Google Maps. Recently, however, the entire community of North Oaks, Minnesota -- which has 4,500 residents -- asked Google Maps to remove the images of all of its residents' homes from the website. ...
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About three months ago, I began to notice a new ad campaign in the newspaper and on the Web. Its graphics were sophisticated and self-assured, and the scale of the campaignone-and-a-half pages in the New York Timessuggested that it was not the work of a little company or group. The campaign is called "The Responsibility Project" and it is sponsored by Liberty Mutual, one of the nation's largest insurers. It can be seen online at: http://www.responsibilityproject.com/. To be honest, I wanted to hate this ad campaign. When I planned to write this column a few weeks ago, I assumed that I would read the ads, watch the videos, and figure out all the ways in which it was an example of corporate self-interest masquerading as serious moral engagement.
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Not surprisingly, last week's landmark 5-4 Supreme Court ruling in Boumediene v. Bush has already been decried by conservatives and hailed by liberals. Curiously, however, critics and admirers of the decision both appear to claim support from the same venerable principle: the balance of powers under the U.S. Constitution. Justice Anthony M. Kennedy's opinion, conservatives say, violated the Constitution by failing to provide adequate deference to the political branchesCongress and the Presidentin wartime. Not so, say liberals. The Court vindicated the Constitution by acting as a vital check on one of the worst abuses government can commit: detention without trial. ...
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Last week's landmark Supreme Court ruling in Boumediene v. Bush was a nail in Guantanamo's coffin. For the third time in four years, the Supreme Court sent a strong message that it disagrees with the Bush Administration's detainee policies. The Court's 70-page opinion, written by Justice Anthony Kennedy, holds that prisoners in US custody at Guantanamo have the right to challenge their detention via a fair process in federal court. ...
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Former Bush White House Press Secretary Scott McClellan has agreed to testify before the Judiciary Committee of the U.S. House of Representatives on June 20. He was invited, of course, because of his revelatory new book What Happened: Inside the Bush White House and Washington's Culture of Deception. Florida congressman Robert Wexler, a member of the committee, has succinctly explained why he and many others expect McClellans appearance to be potentially highly significant: "The allegations made by McClellan that Karl Rove, Scooter Libby, and possibly even Vice President Dick Cheney, together conspired to obstruct justice by lying about their role in the Plame case relates directly to the core of US executive power and the Constitution. If true, the allegations made by McClellan could amount to an obstruction of justice charge for Scooter Libby and Karl Rove." ...
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The Southern Baptist Convention (SBC) has recently proven why it is that children are at risk for sexual abuse in our society: It's easier not to protect them, and especially easy to issue ineffectual platitudes while looking the other way. According to the Associated Press, the SBC has concluded that its decentralized structure of independent churches makes it impossible for it to establish a website of pastors credibly accused of child sexual abuse, or even to require the reporting of such crimes to the police. Yes, you read that right: The SBC is citing these lame procedural reasons for not taking the most basic steps to protect children from devastating abuse that can have repercussions that leave victims suffering for a lifetime (and that severely taxes society in medical and other resources). ...
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Last month, Willie Campbell was sentenced to 35 years' imprisonment for spitting at Dallas police officer Dan Waller. The sentence was based in part on a jury finding that that because Campbell was HIV-positive, his spit qualified as a deadly weapon. As a result of the finding, Campbell will have to serve at least half his sentence before he is eligible for parole. The sentence is troubling, because it rests on fact-finding at odds with scientific evidence regarding the transmission of HIV. ...
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An interesting case that the Supreme Court recently resolved began when Hedrick Humphries, an African-American assistant manager at a Cracker Barrel restaurant, sued his employer for firing him. Humphries alleged that he had been fired in retaliation for his complaint about a fellow assistant manager's treatment of another African-American employee. Ultimately, the Supreme Court took the case and was confronted with the following question: Does Section 1981, a federal civil rights law that prohibits race discrimination in contracting, protect employees like Humphries against such retaliation? The Court ruled, in CBOCS WEST, Inc. v. Humphries, that it does. ...
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Last month, in United States v. Williams, the Supreme Court decided, 7-2, to uphold a federal statute criminalizing the offering or seeking (or, in the statute's language, the "pandering" or "solicitation") of child pornography. In this column, Part One in a two-part series on the Williams decision, I will take issue with the majority's and concurrence's approach here: resolving the constitutional problems with the statute by simply interpreting the statute as if it did not raise them. ...
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Although the Supreme Court has yet to decide some of the most important pending cases before it, it is not too soon to say that this has been a surprising term. Based on last term's record, most prognosticators (including me, I must confess) thought that this term would see another spate of hard-fought 5-4 decisions in which the Court split along its well-established ideological divide, with Justice Anthony Kennedy playing the role of swing justice, delivering victory to one side or the other. Instead, the Court has achieved a significantly higher degree of consensus in many cases that were good candidates for 5-4 battles with some liberal justices joining "conservative" decisions and some conservative justices joining in "liberal" ones. ...
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The blockbuster decision by the California Supreme Court to recognize gay marriage may have dominated the headlines, but it was not the only major gay rights judicial victory to emerge from the West Coast last month. In a less-noticed but also significant ruling in Witt v. Secretary of the Air Force, the U.S. Court of Appeals for the Ninth Circuit breathed life into an important constitutional challenge brought by a servicewoman to the militarys so-called "Don't Ask, Don't Tell" policy. The court held that the policy discriminates against gay and lesbian relationships in a way that requires a substantial government justification. In this column, I will analyze the Witt ruling and consider where it might lead. ...
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Speaking over the past weekend at the annual dinner of an Orthodox Jewish group, Agudath Israel of America, U.S. Supreme Court Justice Antonin Scalia claimed that the Establishment Clause of the First Amendment should not be construed to forbid government from favoring religion over nonreligion. Justice Scalia has made this point before, both on and off the bench, and he may be correct when he says, as he did before Agudath Israel, that such a prohibition does not . . . represent the American tradition, but only if one excludes from that tradition the last forty years of Supreme Court jurisprudence. ...
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In Part One of this series of columns on the historic lead paint argument before the Rhode Island Supreme Court last month, I set the stage for the case. I noted how the suit, which was brought by the State of Rhode Island against the largest members of the lead paint industry, was an innovative use of public nuisance law employing an approach with roots in earlier cases such as the state Medicaid cigarette litigation and asbestos litigation. In this column I want to focus on two points: First, I want to explain why, contrary to the impression of many observers, the defendants did not dominate the oral argument. Second, I want to explain why the defendants should win, and what it will take for the Rhode Island Supreme Court to give them a victory based on principled adjudication, as opposed to mere expediency. ...
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Recently, the Texas Supreme Court affirmed the states Third Circuit appellate courts ruling that Child Protective Services (CPS) lacked adequate evidence to justify taking all of the children from the FLDSs Yearning for Zion compound. However, as I will explain, there are significant differences between the two rulings, which bode well for the endangered children of the FLDS. ...
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We will send a clear message to those who kill Americans, President George W. Bush vowed on September 6, 2006, [No matter] how long it takes, we will find you and we will bring you to justice. Announcing that several detainees believed to be responsible for the September 11 terrorist attacks had been brought to Guantanamo, President Bush received a standing ovation when he said that they would soon be put on trial. The president was speaking to an audience that included relatives of the victims of the September 11 attacks, but also, via the television networks, to the broader American public and, indeed, the rest of the world. ...
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