|
|
 |
|
|
January 2009 - Posts
-
|
Many companies have privacy polices in which they promise to keep safe any confidential information they collect from Social Security numbers, to personal financial information, and even sexual history. Given such promises, is your information safe? The answer is a resounding no. The headlines are full of stories of security breaches, stolen company laptops, and even untrustworthy employees who steal customer data. Such stories raise an important legal question: Does a company face any legal consequences if it breaks a confidentiality promise? The answer is: Not necessarily. Indeed, a recent Louisiana case highlights how current law is inadequate to deal with the growing problem of security breaches and the insecurity of confidential customer data....
|
-
|
In this column, I will examine a middle-school drug-search case on which the Supreme Court recently granted review. As I will explain, the case will give the Justices another chance to demonstrate that a so-called "reasonableness" approach to the Fourth Amendment need not be toothless and, indeed, can serve to vigorously safeguard the interests the Fourth Amendment should protect. However, we probably won't know until the summer whether the Court will seize that opportunity, or instead uphold school authority in the name of the war on drugs....
|
-
|
In December 2006, the New Jersey Legislature adopted a civil union law, permitting same-sex couples to enter into a legal alternative to marriage. The legislature acted in the wake of a ruling from the New Jersey Supreme Court, holding that it did not violate the state constitutions guarantees of equal protection or due process for the state to exclude same-sex couples from marriage, as long as it offered them the benefits of marriage. In its recently-released final report, however, the New Jersey Civil Union Review Commission unanimously concluded that the alternative status is simply not as good. Rather, the report concludes, because the civil union alternative "invites and encourages unequal treatment of same-sex couples and their children," the legislature and governor should change the law to permit same-sex couples to marry. Moreover, the Commission implored the state to act "expeditiously because any delay in marriage equality will harm all the people of New Jersey."...
|
-
|
President Barack Obama delivered an Inaugural Address that will survive and continue to resonate, as the best speeches do. His wisest tactic was to point his listeners to a new horizon, creating a single new America out of the two racial Americas that had been in existence since the beginning. Rhetorically, he did it by invoking "our founding fathers," "our forebears," and "our founding documents." In a brilliant move, he relegated the extraordinary fact that he is our first African-American President to the background. More important, he suggested, was the reality that he noted early in his speech: He is the 44th American President, who traces the legacy of his power and his Presidency back to America's founding....
|
-
|
Last week, the federal district court judge who is handling all the remaining 9/11 litigation dismissed some of the claims that had been brought by plaintiffs whose property was destroyed in the attack. The ruling, in In re September 11 Litigation, while minor in its practical impact, provides a fascinating glimpse into the difficult tort issues this case has raised. In this column, I will praise the decision and explain why Judge Alvin Hellerstein got it right....
|
-
|
Within hours of taking office last week, President Barack Obama ordered government prosecutors to seek a halt to the military commission proceedings at Guantanamo. Less than two days later, he signed four historic executive orders that mark a sharp break from the Bush administration's legacy of arbitrary detention, cruel treatment, and unfair trials....
|
-
|
Through a combination of poor coordination and bad luck, the Inauguration Day administration of the Presidential oath of office by Chief Justice John Roberts resulted in Barack Obama's stating the substance, but not the exact wording, of that oath. To remove any doubt about the result, the Chief Justice and the President conducted a "do-over" the next day. Meanwhile, however, Obama had been acting as President for over a day. Were his actions during that interval valid? Although the question certainly will not have any immediate practical consequences, answering it may shed considerable light on the meaning of the Constitution--and on the different approaches that Roberts and Obama take towards legal interpretation....
|
-
|
Remarkably, the confirmation of President Obama's Attorney General nominee, Eric Holder, is being held up by Texas Republican Senator John Cornyn, who apparently is unhappy that Holder might actually investigate and prosecute Bush Administration officials who engaged in torture. Aside from this repugnant new Republican embrace of torture (which might be a winning issue for the lunatic fringe of the party and a nice way to further marginalize the GOP), any effort to protect Bush officials from legal responsibility for war crimes, in the long run, will not work....
|
-
|
Last week, the U.S. Supreme Court decided the case of United States v. Herring. Herring addressed the question whether police officers may rely in good faith on erroneous information (inaccurately alleging the existence of an outstanding arrest warrant against a suspect) without compromising the resulting evidence, when the source of the error is another law enforcement agency. The Court held that the answer is yes, provided the error is not sufficiently deliberate and culpable to justify suppression of the evidence. In this column, I will examine the question and conclude that the Court erred in further extending the "good faith" exception to the exclusionary rule of evidence....
|
-
|
FindLaw columnist and Hofstra law professor Joanna Grossman discusses a recent, significant decision from the Iowa Supreme Court regarding prenuptial agreements (commonly nicknamed "prenups"). Grossman also explains, more generally, how such agreements have developed in America, and the different approaches regarding how they should be interpreted, and how far they can go. In addition, she proposes a hybrid approach to interpreting prenuptial agreements that borrows elements from two popular approaches -- including the one the Iowa Supreme Court adopted....
|
-
|
Children's interests often intersect with adults' religious beliefs, and too often, the children suffer. The events of 2008 confirmed this ugly truth, though they also evidenced some emerging signs that our society is capable of protecting children by invoking science and law. There is a long road to follow, but the signs that we have a chance to begin the necessary journey are already there....
|
-
|
As George Bush and Dick Cheney take victory laps, in order to pretend nothing is amiss because of the way they have governed for the past eight years, they are claiming to have strengthened the institution of the presidency. Needless to say, they are wrong. Even Chris Wallace of Fox News Sunday, a Bush/Cheney cheerleader, had his doubts about this claim, so he asked Cheney during an exit interview, "Did you overreach? Did you end up making the presidency weaker, not stronger?" Not surprisingly, Cheney responded, "I don't think so." When Wallace then mentioned all those Supreme Court decisions overruling Bush and Chene's actions, Cheney employed his usual hubris and, with a straight face, explained that he and Bush were correct, and the Court was wrong....
|
-
|
The California Supreme Court recently held that a person rendering nonmedical aid is not immune from liability in tort under the state's "Good Samaritan" law, which the Court held applies only to persons providing medical aid. The decision has garnered a significant amount of commentary, most of it negative. In this column, I will defend the policies that lay behind the Court's decision....
|
-
|
At this point, it is simply a myth that the term conservative has any coherent meaning, whether the arena in which the term is used is political, or judicial. In this column, Ill consider how the term has lost meaning and suggest that a new paradigm is upon us....
|
-
|
This week, Democratic Senators (apparently at the urging of President-elect Obama) did an about-face and decided they would seat Roland Burris, the 71-year-old veteran African-American politician whom embattled Illinois Governor Rod Blagojevich had craftily selected to fill the vacancy created by Obama's resignation from the Senate. In this column, I will discuss some of the legal issues surrounding this episode, and mention at least one cautionary lesson the episode teaches that the Senate majority party (and the President himself) may want to heed....
|
-
|
The problem of Guantanamo is being solved. According to press accounts, President-elect Barack Obama will issue an executive order on his first full day in office mandating the detention center's closure. Shutting down this most notorious of prisons will be a crucial symbolic step, signaling a rejection of the Bush administration's lawless approach to fighting terrorism. The prison's seven-year existence has been a long affront to the country's constitutional values. Yet it would be wrong to consider Guantanamo alone. The use of long-term detention without chargethe reason for Guantanamo's notorietyis not limited to Guantanamo. Hundreds of prisoners are currently being held at the U.S. air base in Bagram, Afghanistan, and some of these men have been in custody for years....
|
-
|
Security experts and legal advisers have urged President-elect Barack Obama to give up his beloved Blackberry. Obama is reluctant. "Im still clinging to my BlackBerry," he said last week. "Theyre going to pry it out of my hands."...
|
-
|
A recent lawsuit is seeking damages for defamation based on a posting on the popular site Yelp.com, where consumers rate products and services. However, as I will explain, the suit is unlikely to succeed unless the plaintiff can show both that the posting was untrue, and that its content was not of public interest....
|
-
|
This year in the Cornell Law Review, Professors Theodore Eisenberg and Valerie Hans will be publishing an illuminating and important article demonstrating the impact of introducing prior convictions against a criminal defendant. Their findings show, among other things, that when revealed to a jury, a defendants record of prior convictions can, in marginal cases, significantly increase the odds of a guilty verdict....
|
-
|
FindLaw columnist, attorney, and author Julie Hilden discusses a defamation suit that was recently brought by lobbyist Vicki Iseman against the New York Times, for a February 2008 article that many read to suggest that Iseman was having an affair with then-presidential candidate John McCain. Hilden explains the issues that may come up if the Iseman suit moves forward, including those relating to public-figure versus private-figure intent standards, defamation law's requirement of a "statement of fact," and the Times's use of confidential sources. She also suggests that problems with the case -- and with the article, as the Times's own public editor admitted -- should cause the Times to make a high settlement offer to Iseman....
|
-
|
California Attorney General Jerry Brown caught many observers off guard with the brief he recently filed with the California Supreme Court in the case concerning Proposition 8, the initiative and purported constitutional amendment banning the marriage of same-sex couples. The Attorney Generals brief was offered in response to Petitioners arguments that Proposition 8 was invalid....
|
|
|
|