|
|
 |
|
|
February 2009 - Posts
-
|
In this column, we will examine an important initiative proposal that emerged from the California Legislature last week and that, if approved by voters, would fundamentally change the way officials in the Golden State are elected. The proposed state constitutional amendment, which one key Republican state senator insisted upon as a condition for his approving a contentious budget package, would require the use of so-called "open primaries" in elections for state and federal officials (except the President and Vice President). (Some analysts argue over the meaning of the term "open primary" as compared to "blanket primary," "modified blanket primary," etc., but we use the term "open primary" here because that is the label used by the California legislature). In particular, we will discuss how the proposed California open primary scheme would operate, and whether it might be struck down as violating the United States Constitution...
|
-
|
The U.S. Supreme Court will decide in the coming weeks whether to take up an important and interesting case from the U.S Court of Appeals for the Ninth Circuit involving religious liberties and the seminal federal statute the Religious Freedom Restoration Act (RFRA) designed to safeguard them. In this column, we will discuss the issues the case raises; the reasons why the Ninth Circuits resolution of these issues, while understandable, might not do justice to the complex and competing interests involved; and the problems that both the Supreme Court and lower courts face when trying to implement this well-meaning but imperfectly-drafted Congressional statute....
|
-
|
Last week, British authorities turned Dutch legislator Geert Wilders away from their borders because of his extremist views on Islamicism. Wilders is responsible for the short film Fitna, which juxtaposes verses from the Koran with images of terrorist bombings and violence. In the Netherlands, he would like to ban the Koran as a "fascist book" and forbid the construction of mosques. British authorities explained their action by saying that allowing him to enter would "threaten community harmony and therefore public safety." There is no question that Wilders's views are disgraceful and offensive, but the British decision is a serious blow to global liberty. Britain admitted that it acted as it did because it feared upheaval from the Islamicist community in response to Wilders and his far-right views. This is the epitome of the "heckler's veto," where those offended by the message are permitted to use their disapproval to prevent speech they do not like....
|
-
|
Last week, former Baltimore Orioles shortstop Miguel Tejada pleaded guilty to federal charges of lying to congressional investigators about the use of performance-enhancing drugs in baseball. According to prosecutors, congressional staff members interviewed Tejada in 2005 in a hotel room and asked him whether there had been discussions among the players about steroids and whether he knew of other players using steroids, and Tejada responded (through a Spanish-language translator) that he had not heard such discussions and that that he did not know of any players using performance-enhancing drugs. After the interview, evidence surfaced that Tejada did in fact have discussions with a teammate about such drugs and purchased them as well. Tejada, who now plays for the Houston Astros, could face up to a year in jail for his crime....
|
-
|
In the Supreme Court blogosphere this week, there was some speculation that, in the wake of pharma giant Pfizers purchase of Wyeth, Chief Justice John Roberts might be forced to recuse himself from one of the biggest cases of the term. The case is Wyeth v. Levine, in which the Court will tackle the very significant question of whether the FDA's labeling requirements pre-empt state consumer protection laws designed to ensure product safety....
|
-
|
Using a different pen for each letter of his name (to maximize the number of souvenir pens available for those involved in the bills passage), President Barack Obama signed the Lilly Ledbetter Fair Pay Act into law on January 29. (It became Public Law No. 111-2, 123 Stat. 5 (2009)). That the nations first African-American president was signing his first bill into law marked an important civil rights moment, but the bill itself marked another. Former President Bush had preemptively refused to sign such a law when it was first proposed almost two years ago, just as he had with a variety of other pieces of anti-discrimination legislation....
|
-
|
Less than a month into President Obama's term, many of the Bush Administration's worst counterterrorism policies have been left behind. Guantanamo has a set date for closure; CIA "black sites" have been banned; and the unfair military commission proceedings at Guantanamo have been suspended. But there have already been disappointments. On Monday, in appellate argument in the case of Mohamed v. Jeppesen Dataplan, Inc., the new administration stuck with an indefensible Bush Administration position on the state secrets privilege. In urging the court to uphold the dismissal of a lawsuit challenging CIA flights that brought suspects to be tortured, the Justice Department acknowledged that the new administration was taking "exactly" the same position as the previous one had....
|
-
|
Chief Justice John Roberts and President Barack Obama have more in common than sharing an awkward recitation of the Oath of Office on Inauguration Day. Both, at the very outset of their tenures, set for themselves the ambitious agenda of changing the nature and tone of decision-making in their respective spheres....
|
-
|
FindLaw columnist and Hofstra law professor Joanna Grossman and FindLaw guest columnist and U. Pittsburgh law professor Deborah Brake comment on a recent, significant, unanimous Supreme Court decision in the area of employment discrimination. As Grossman and Brake explain, the Court held that when an employee conducts an internal investigation of sexual harassment charges, employees who participate (but have not themselves brought complaints) are protected from retaliation from their employer based on the evidence they provide. Grossman and Brake argue that the Court's decision is clearly correct, but also explain how the Court, by invoking a separate legal provision, could more fully protect employees in the future....
|
-
|
Recently, it was announced that Los Angeles United States Attorney Thomas P. O'Brien was starting a grand jury investigation into allegations of a child sex abuse coverup by the Catholic Church's Los Angeles Archdiocese. The announcement was met with consternation and defensive cries from various Catholic quarters. Before they drown out the larger public good, however it is worthwhile to spend some time with the facts which, I will argue, show that a grand jury investigation is exactly what should be occurring now....
|
-
|
At the moment, health care reform is going to have to wait for other, more pressing problems to be resolved by the Obama Administration. In my opinion, the loss of Tom Daschle is less important than many people seem to think, but any delay in getting a new health care czar will mean that real reform will be months, if not years, away....
|
-
|
|
What do Treasury Secretary Tim Geithner, Olympic gold medal record-holder Michael Phelps, and Illinois ex-Governor Rod Blagojevich have in common? Each has been involved in a recent scandal in which it can plausibly be argued that his prominence led to special treatmenteither favorable or unfavorable. Among other things, Geithner failed to make timely self-employment tax payments on salary he earned from the International Monetary Fund (IMF); Phelps was photographed apparently smoking marijuana from a bong at a University of South Carolina party; and Blagojevich was recorded scheming to shake down various Illinois figures. Each case raises the specter of special treatment. Were Geithner, Phelps, and Blagojevichas well as two Obama nominees who withdrew from consideration for administration positions because of tax issuestreated better or worse than the average person because of their prominence? Answering that question is harder than it may at first appear, because the average person is not under consideration for a Cabinet position, an Olympic champion, or governor of a state. Figuring out whether Geithner, Phelps, and Blagojevich have been treated equally may thus shed light on the meaning of equality for people in the public eye....
|
-
|
Former Bush II White House aide Karl Rove refused, while in office, to testify before the 110th Congress regarding the firing of U.S. Attorneys by the Bush Department of Justice. So did former White House counsel Harriet Miers and former chief of staff Josh Bolten. Miers and Bolten were found in contempt of that Congress, and are now fighting a civil lawsuit that would force them to appear. No doubt, they are hoping the U.S. Court of Appeals for the District of Columbia will declare the case moot since that Congress has expired. Meanwhile, Rove has once again been subpoenaed by the House Judiciary Committee of the 111th Congress....
|
-
|
In March of last year, an eleven-year-old girl died of untreated diabetes, while her parents prayed for her recovery and chose not to consult a medical professional. The medical consensus is that Madeline Kara Neumann (who was known by her middle name) probably took about a month to die in terrible pain, wasting away to 65 pounds by the end and that insulin and intravenous fluids would have saved her young life. Prosecutors subsequently charged Kara's parents with second-degree reckless homicide under Wisconsin law for failing to prevent her death. Last month, the judge in their case rejected the defense's argument that the prosecution was violating the couple's rights to religious freedom. As a matter of law, this ruling is uncontroversial. Yet the case raises the more difficult and broader question of how the law should treat anti-social behavior that is motivated by religious faith....
|
-
|
For two decades, accusations and recriminations, partisan sniping and incessant paybacks have punctuated federal judicial selection. The quintessential example is the still-unoccupied vacancy created in the summer of 1994, when J. Dickson Phillips, a distinguished jurist on the U.S. Court of Appeals for the Fourth Circuit, assumed senior status. A replacement has yet to be chosen for Phillips, so the fourteen-year opening in his judgeship is clearly the entire nation's most protracted....
|
-
|
This summer, in light of the recession, it is widely expected that summer associates at many law firms will not receive offers virtually automatically; instead, only some will receive them. Moreover, the work given to summer associates is likely to be much more challenging than in prior years in part so that firms can make smart decisions as to which summer associates to hire, out of a given class. Having been a summer associate twice, and then later an associate reviewing summer associates' work, I'd like to offer some advice to summer associates on how they can maximize their chances of getting an offer, even in a very difficult economy....
|
|
|
|