|
|
 |
|
|
July 2008 - Posts
-
|
Some critics of the state Supreme Court rulings in Massachusetts and California that recognize the right of same-sex couples to marry have suggested that these cases create a conflict between religious believers and proponents of religious liberty, on one side, and gay men and lesbians and supporters of gay rights, on the other. Their argument is more practical than normative. The rulings' critics maintain that recognizing same-sex marriages will inevitably lead the state to interfere with and burden the religious liberty of faith communities that hold traditional beliefs deeming homosexual conduct immoral. ...
|
-
|
Yesterday, the House of Representatives passed a non-binding resolution apologizing for the nation's history of slavery, as well as for the "injustice, cruelty, brutality, and inhumanity" of Jim Crow, the system of law that pervaded the South between 1875 and 1965, segregating public life and denying blacks the right to vote and other basic liberties. In decrying this history, the House recognized that "African-Americans continue to suffer from the consequences of slavery and Jim Crow -- long after both systems were formally abolished -- through enormous damage and loss, both tangible and intangible, including the loss of human dignity and liberty, the frustration of careers and professional lives, and the long-term loss of income and opportunity... ." The House also committed itself to stopping future human rights abuses. ...
|
-
|
By now, most Americans are well aware of America's difficulties with ensuring the safety of imported products - a problem that a string of high-profile product recalls highlighted. The recalls sparked government scrutiny, but are imports today any safer than when the recalls some, disturbingly, of children's products -- occurred? In this column, I'll consider that important question. ...
|
-
|
Last week, California became the first State in the Union to ban trans fats in foods sold in restaurants. With the ban, which is set to go into effect in 2010, California joins New York City and a handful of other jurisdictions that forbid trans fats. Critics of the ban will no doubt decry it as one more example of "nanny state" excesses. Proponents, by contrast, will point to the positive health effects for the millions of peopleincluding minors, who cannot be expected to make responsible nutrition choicesin the nation's most populous state. In this column, however, I will put to one side the question of whether the trans fat ban is wise social policy, in order to consider a broader phenomenon that the ban represents: the impossibility of following the Framers' original vision of federalism in a highly-integrated national economy. ...
|
-
|
It is not just in the United States that aggressive counterterrorism measures have raised serious human rights concerns. This month, the U.K. House of Lords began debating a draft counterterrorism law that would institute a number of harmful proposals, including granting police the power to detain terrorism suspects for up to six weeks without charge. While the bill garnered a narrow government majority of only nine votes, the government managed to get it passed last month in the House of Commons (the lower house of Parliament). Much of the debate around the bill so far has focused on the British government's effort to extend pre-charge detention beyond the already-excessive 28-day period allowed under existing law. But the bill contains other worrying provisions as well.
...
|
-
|
Before I found myself wrestling with a nasty summer cold/flu bug, I had planned to travel to Washington to testify before the House Judiciary Committee, which is holding a hearing today on "Executive Power and Its Constitutional Limitations." While this was not billed as an impeachment hearing, it was my understanding that I would follow the testimony of Congressman Dennis Kucinich of Ohio, who introduced a new impeachment resolution on July 10. The resolution states that President Bush "deceived Congress with fabricated threats of Iraq Weapons of Mass Destruction to fraudulently obtain support for an authorization for the use of force against Iraq and [he] used that fraudulently obtained authorization" to proceed to war in Iraq. ...
|
-
|
The tide is turning in favor of protecting children in polygamous communities - as several new developments evidence. First, the Senate Judiciary Committee is holding hearings on the crimes that occur in polygamous communities today. I have submitted written testimony to the Committee regarding this matter, which is reproduced below. As regular readers of this column know, I have been very concerned about the plight of children in these communities and, most recently, in the issues arising out of the Texas authorities' rescue of children from the FLDS compound in Eldorado, Texas. In prior columns, I covered both the initial Texas decision in that case, and the decision of the Texas Supreme Court. ...
|
-
|
Increasingly, print journalism is struggling, as advertising dollars move to the Internet, subscriptions decrease, and newspapers find themselves competing with their own websites - which offer much of the same content the print editions do, free of charge - as well as other websites and blogs. Ironically, too, one common way in which newspapers have responded to money pressures is to make cuts in newsroom staff - and thus to decrease their comparative advantage vis-a-vis bloggers when it comes to offering high-quality content. As a result, it is now quite easy to imagine a near-future world in which print newspapers do not exist at all. ...
|
-
|
It may sound strange to say my solo practice was born by accident, but it's true. I do not mean to imply that one day I simply landed in my new office space -- in much the same way John Cusack's character was suddenly spit out onto the New Jersey Turnpike in the film "Being John Malkovich." My story, however, is not that far off from that scenario. ...
|
-
|
Last month, the environmental committee of the Spanish Parliament passed several resolutions embracing the principles of the Great Ape Project ("GAP"), which hold that Great Apes - including Chimpanzees, Bonobos, Gorillas, and Orangutans are entitled to the same basic rights as human beings against being held captive, killed, and tortured. Soon, the Parliament is expected to approve the resolutions. In this column, I will consider and evaluate some responses to the resolutions, both favorable and critical. ...
|
-
|
Where does opinion end, and fact begin? That was the question U.S. District Judge Peter K. Leisure of the Southern District of New York had to answer when contending with a motion by journalist Dominick Dunne to dismiss a defamation suit by former Congressman Gary Condit. Condit argued that Dunne had falsely insinuated that Condit had played a role in the 2001 murder of Washington, D.C. intern Chandra Levy. Dunne argued, in response, that what he had said was First-Amendment-protected opinion. On July 8, Judge Leisure ruled in favor of Dunne.
...
|
-
|
In looking over the recent coverage and commentary dealing with the just-concluded Supreme Court term, it is abundantly clear that this has been a particularly difficult Term to describe and characterize. A number of commentators have suggested that this Term is notable for Chief Justice John Roberts's success in creating greater consensus and collegiality. But this theme runs into some inconvenient truths. While there were fewer 5-4 decisions than last year (which yielded a record percentage), a number of the most important cases were decided by a single vote. And while the overall tone of discourse improved from the 2006-Term nadir, the dissents in several of this term's blockbuster cases were bitterly accusatory. Just read Justice Antonin Scalia's dissent in Boumediene, the Guantanamo detainee case. ...
|
-
|
Earlier this week, Luis Moreno-Ocampo, the Prosecutor for the International Criminal Court (ICC), issued a request for an arrest warrant for the President of the Sudan, Omar Hassan Ahmad Al Bashir. Al Bashir stands accused of committing genocide, crimes against humanity, and war crimes, in the conduct of his military and paramilitary campaign against much of the civilian population of the Darfur region of the Sudan. Article 63 of the Statute of Rome, which governs proceedings before the ICC, requires that the accused be present for trial. Yet there is no reason to believe that Al Bashir will voluntarily appear before the ICC or, for that matter, travel outside the Sudan and risk arrest. Accordingly, barring his military overthrow, Al Bashir will likely elude justice. ...
|
-
|
When real estate mogul and hotelier Leona Helmsley died last summer at the age of 87, the public was treated to a variety of tidbits of information regarding her estate, many of which seemed to confirm earlier reports about her well-known, though not necessarily well-liked, personality. As I described in more detail in a previous column, Helmsley disinherited two of her four grandchildren, despite having an estate of 5-8 billion dollars to go around. She left money to other relatives on the condition that they visit her gravesite on a particular schedule and record their visit by signing a mausoleum guest-book. She left money in trust to make sure the family mausoleum was exquisitely cared for in perpetuity. And she left 12 million dollars in trust, purportedly for the care and feeding of her dog, Trouble. ...
|
-
|
Last Thursday, July 10, former White House Chief of Staff Karl Rove refused to honor the subpoena of a House subcommittee looking into whether or not wrongful pressure was brought upon U.S. Attorneys in connection with the prosecution of a former Democratic governor of Arkansas. The subcommittee had subpoenaed Rove in May to explore what, if any role, he played in the prosecution of former Alabama Governor Don Siegelman or in the unexplained dismissal of US Attorneys. In spurning the subpoena, Rove indicated that he was following the instruction of the White House not to appear before the committee on the grounds that this would interfere with the president's internal communications. The full committee and ultimately the full House must now decide whether to hold Mr. Rove in contempt. ...
|
-
|
Bob Bennett is one of the best-known attorneys in Washington, DC, a city with more lawyers per capita than any place in the United States, if not the world. Although I've never met Bennett, I suspect we must have passed one another in the halls at Georgetown University Law Center, where he graduated the year before I did. Bennett has had - and continues to have - a fascinating legal career in which he has represented the "who's who" of Washington (and elsewhere) in a steady stream of high-profile media-saturated cases. Recently, he has shared highlights from his career in his new book In The Ring: The Trials of a Washington Lawyer. For me, his memoir is more than a trip down memory lane, for he places a number of highly-political criminal prosecutions in which he lead the defense in appropriate historical perspective.
...
|
-
|
Among the Bush Administration's many problems, a primary fault has lain in its incessant deference to religious interests. From its promotion of funding for religious mission through the White House Office of Faith-based and Community Initiatives, to its creation of a special office in the Department of Justice to aggressively aid religious interests, it has been an administration deaf to Establishment Clause concerns. Traditionally, the Democrats had been more sensitive than the Republicans to the separation of church and state. However, southern evangelicals and Presidents Jimmy Carter and Bill Clinton turned the tide in a way that fed into the Bush Administration's uncritical support for religious agendas and interests. (I have no problem with religious entities lobbying for their interests; my concern arises when public officials do not carefully consider such requests and when they ignore constitutional boundaries in favor of those religious entities.) ...
|
-
|
A few weeks ago, an en banc panel of the U.S. Court of Appeals for the Eighth Circuit vacated a preliminary injunction in Planned Parenthood v. Rounds, a case involving both abortion rights and the First Amendment. The case arose because in 2005, South Dakota passed a new version of a statute that required abortion providers to convey specified information to patients who were about to receive an abortion. Under the new law, the doctor would have to inform the pregnant woman "that the abortion will terminate the life of a whole, separate, unique, living human being." ...
|
-
|
Imagine a world where your marital status changed when you moved to a new state. Imagine being denied insurance, medical decision-making authority, or even parental rights by bureaucrats who dismissed your marriage license as if it were some worthless foreign currency. Imagine a world where, with no due process, a state could effectively divorce you against your will. Absurd? Yes. Unimaginable? For most people it is, but not for gays and lesbians. ...
|
-
|
Supreme Court Terms, like the cases that comprise them, have winners and losers. Some are obvious, others less so. In this column, I provide one brief scorecard of the 2007-2008 Term that just wrapped up. ...
|
-
|
Last week, the Rhode Island Supreme Court reversed a massive verdict in a landmark public nuisance trial against the lead paint industry. The Court's opinion is significant for two reasons. First, it removes the threat of billions of dollars of liability that had been hanging over the heads of the lead paint industry's corporations. Second, the four Justices of the Rhode Island Supreme Court who joined in the decision (the decision was unanimous; one Justice did not participate) produced a rich and durable argument for their result, thus demonstrating, in my opinion, that common law courts can still decide hard cases on the basis of law, and not just political expediency. ...
|
-
|
Now that the Supreme Court has erupted, as it does every year, with a set of end-of-term blockbuster opinions, political pundits have started focusing on the potential consequences of the presidential election on the future of the Supreme Court. Interestingly, however, Barack Obama's reactions to these opinions have rendered predictions as to what kind of Justices he might appoint much more of a guessing game than one might previously have thought. While John McCain clearly will be toeing the party line, Obama has proved more independent-minded. ...
|
-
|
The Democratic Party's presumptive presidential standard-bearer, Senator Barack Obama, surprised many when he announced that he would support the legislation passed by the House of Representatives on June 20, 2008 amending the Foreign Intelligence Surveillance Act of 1978 (FISA). While the House legislation was called a compromise, it was virtually identical to the earlier, rejected proposals that the Bush Administration had requested and that organizations like the ACLU had fought for months and continue to fight to defeat. ...
|
|
|
|