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March 2009 - Posts
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In 2006, Sycloria Williams went to a clinic in Florida to have an abortion. At that time, she was evidently between 21.5 and 23.5 weeks pregnant. As part of the procedure, the doctor Pierre Jean-Jacque Renelique inserted laminaria sticks inside Williams's cervix to cause dilation and gave her a prescription for a drug she should later take to begin inducing labor. The next day, Williams appeared, as instructed, at a different clinic for the completion of the abortion procedure....
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On February 13, a three-judge panel of the U.S. Court of Appeals for the First Circuit issued a ruling that, one might say, took the "lie" out of libel law. On March 18, the First Circuit denied en banc rehearing (rehearing by a larger panel) in the case. The three-judge panel wrote, "under Massachusetts law, even a true statement can form the basis of a libel action if the plaintiff proves that the defendant acted with 'actual malice.'" Moreover, the panel added, Massachusetts defines "actual malice" as "actual malevolent intent or ill will."...
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In my most recent column for this site, I (joined by my former student Michael Schaps) analyzed a constitutional amendment being urged by (among others) Senator Russell Feingold in the wake of recent controversies surrounding gubernatorial temporary appointments to the United States Senate. Of these controversies, perhaps the most notorious was that involving embattled former Illinois Governor Rod Blagojevich's appointment of embattled Senator Roland Burris. Senator Feingolds proposal would constitutionally end gubernatorial appointments of replacement Senators altogether. This proposal was the subject of Congressional hearings earlier this month at which I and a number of others gave our views....
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My last column began to sketch out the global human rights impact of the U.S. "war on terror." It described how U.S. abuses such as torture, enforced disappearance, and arbitrary detention, were, in many instances, carried out in collaboration with other governments. Indeed, without foreign support and assistance, the human rights violations of the past eight years would not have been possible. Today's column gives some examples of this abusive collaboration. Among the dozens of countries that supported abusive U.S. counterterrorism efforts are Egypt, Ethiopia, Gambia, Indonesia and Jordan....
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Two 2008 federal appeals court rulingsone that may be on its way to the U.S. Supreme Court, and another that is already thereraise thorny questions of the extent to which schoolchildren enjoy the protections afforded by the Constitution to adults....
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Once upon a time, it was the received wisdom that American Indians always won their cases at the Supreme Court. And if one looks back at the opinions from the 1970s and 80s, the record will reflect that this is only a mild exaggeration. Justices Thurgood Marshall and Harry Blackmun wrote dozens of opinions rectifying historical wrongs, liberally construing the powers of tribal self-government, broadly defining the federal government's "trust responsibility" vis-à-vis the tribes, and upholding preferential treatment of Indians in everything from employment to how statutes should be interpreted. The winning streak for tribal interests began to wane in the mid-1980s. But now it's gotten to the point of a complete reversal of the historical pattern. Today, the tribes rarely win at the Court, and these losses have cut back sharply on their power of self-government and diminished the positive aspects of their relationship with the federal government....
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In 1989, the U.S. Supreme Court held in Price Waterhouse v. Hopkins that Title VII the main federal anti-discrimination statute -- prohibits employers from penalizing employees for failing to conform to the gender stereotypes associated with their sex. Yet, two decades later, courts continue to show ambivalence in sex-stereotyping cases.....
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Recently, the Supreme Court decided an interesting case that will confound Free Speech and Establishment Clause jurisprudence for years to come. Pleasant Grove City v. Summum presented the Court with a case at the intersection of three dubious doctrines: the government speech doctrine, the public forum doctrine, and the doctrine that uses the Free Speech Clause to suppress Establishment Clause values. In this column, I'll analyze and critique the Court's decision....
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In Part One in this two-part series of columns on the litigation assessing the validity of Proposition 8 in California, I explained how a constitution places even "the People," exercising initiative power, under the rule of law. Having established the framework of government and the basis for express and implied rights, and having allocated certain interpretive issues about both structure and individual rights to the state's high Court, the people of California are no longer free to changethe Constitutional terms of the bargain at will. They purposely ceded that freedom in favor of other important values such as institutional and precedential continuity. A constitution that can be erased each year at the polls is no constitution at all. In this column, Part Two in the series, I will elaborate on a proposed resolution to the Proposition 8 litigation. Unlike the remedies advocated by either side, this resolution would vindicate both sets of fundamental principles -- of equality and religious liberty -- that are inescapably intertwined with the same-sex marriage question....
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In this space, over the span of many years, I have written often about the long shadow that the Civil War, now more than 140 years behind us, still casts over contemporary lawmaking. The events of this week have brought fresh reminders of how true this is how legal arguments that one might have thought had been safely buried under the bloody fields of Gettysburg are now being resurrected as if unsullied by a Confederate history and how, no matter how much progress we make as a nation, old ideas and bad ones still find their way forward in difficult times. In the wake of the passage of the stimulus bill, it was widely reported that a bevy of states, many of them so-called "red" states, entertained legislation purporting to declare the federal legislation "unconstitutional" as, allegedly, a violation of rights guaranteed the states under the Tenth Amendment and asserting a right of individual states to ignore the law. Stripped of the rhetoric about the immorality of the stimulus package, what these states are proposing is plain and simple a constitutional scheme under which states have a right to "nullify" any federal laws that they deem to intrude on their prerogatives.
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The Supreme Court's decision in Wyeth v. Levine was eagerly awaited, and it sorely disappointed the pharmaceutical industry. By a vote of 6-3, the Court held that a Vermont products liability suit was not preempted by the fact that the FDA had approved the label that a jury in that state had deemed inadequate. In this column, I will consider Levine's ruling and ramifications....
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A considerable body of research shows that eyewitness identifications of a criminal defendant the gold standard in courtroom theatrics are, in reality, quite unreliable. The courtroom setting itself offers a very strong "suggestion" to witnesses about who the perpetrator might be the man (or woman) sitting with his (or her) lawyer at the defendant's table. More importantly, the identifications that happen prior to trial, when witnesses look at live lineups or at pictures from "mug books," can also be quite suggestive, in ways that might not be immediately obvious....
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Yesterday, March 18, the New York Assembly Rules Committee passed the Child Victims Act (Assembly Bill A02596/Senate Bill S02568), which will extend the criminal and civil statute of limitations for child sex abuse by five years. It will also open a one-year window of opportunity for child sex abuse victims to go to court even if their statute of limitations already had expired. The next stop is the full Assembly and then on to the Senate....
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Howard Fineman, Newsweek's senior Washington Correspondent and an NBC news analyst, understands the ways of the nation's capital and its politics. His new book, The Thirteen American Arguments: Enduring Debates That Inspire and Define Our Country, has been on my reading list for months, so it struck me as a good potential read to give my new Kindle (the Kindle 2) a first test. In light of my overloaded book shelves, not to mention an expensive book-reading addiction, the idea of building an electronic library has long appealed to me. However, the inability to highlight passages, search that library easily, and cut and paste from the books made the early electronic readers hardly worth the savings in cost and shelf space, notwithstanding my equal interest in saving trees. In sharp contrast, the Kindle 2 reading experience was superb overall, with the notetaking and highlighting functions solid and satisfactory, though they could also be improved upon....
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On February 27, the Maryland Court of Appeals - the state's highest court -- set down some clear rules for when, in that state, a plaintiff challenging an anonymous online posting as defamatory can find out the poster's identity from an Internet Service Provider (ISP). In so doing, the court considered both the poster's right to free speech including the First Amendment right, recognized by the U.S. Supreme Court, to speak anonymously and the plaintiff's right to seek a legal remedy for defamation....
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Martin and Melissa Nussbaum have written an indefensible and disingenuous review of my book, Justice Denied: What America Must Do to Protect Its Children (Cambridge University Press 2008), entitled "MarciWorld." It appeared in the Catholic publication First Things. In this column, I will offer a point-by-point refutation of some of their many scurrilous statements, which reveals that "MartyWorld" is a world filled with misrepresentations....
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Rod Blagojevich's name no longer adorns state buildings in Illinois, but he may yet leave an indelible mark someplace even more impressive: the United States Constitution. The hash Blagojevich made of appointing someone to fill the Senate seat vacated by President Obama has helped inspire Wisconsin Senator Russ Feingold (among others) to propose a constitutional amendment to end gubernatorial appointments of replacement senators altogether. (To be fair, many other governors and former governors also share some responsibilityincluding Alaska's Frank Murkowski, who appointed his own daughter, and New York's David Paterson, whose selection of a replacement for Senator Clinton was a public relations fiasco.) In this column, after we assess the status quo and the proposed constitutional amendment, we endorse a third optiona Congressional statute....
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Since September 2001, the U.S. government has been directly responsible for a broad array of serious human rights violations in fighting terrorism, including torture, enforced disappearance, arbitrary detention, and unfair trials. In many instances, US abuses were carried out in collaboration other governments. To cite one examplealbeit a particularly notable onePakistan's intelligence agencies worked closely with the CIA to "disappear" terrorist suspects, hold them in secret detention, and subject them to torture and other abuses. With Barack Obama's term as U.S. president, the U.S. approach to fighting terrorism has changed. The scope of the Obama administration's reforms is not yet clear, but it is obvious that the new administration wants to rethink many of the policies that were instituted over the past eight years....
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Recently, the California Supreme Court heard oral argument on the validity of Proposition 8, an initiative California voters passed at the polls last November. As readers likely know, last year the California Supreme Court held that all couples in California, regardless of sexual orientation, have an equal right to have an intimate relationship officially acknowledged by the state. In addition, the Court found that if the state persisted in drawing distinctions on the basis of sexual orientation, that is a "suspect classification," which would be near-impossible to justify except with a showing of a most compelling governmental interest....
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Last week, in Wyeth v. Levine, the U.S. Supreme Court held that approval by the federal Food and Drug Administration (FDA) of the warnings on the packaging of the anti-nausea drug Phenergen did not invalidate a Vermont jury verdict. The jury awarded damages to Diana Levine for the loss of her arm, on the ground that the FDA-approved warnings were not adequate....
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On March 1, the Obama Department of Justice released nine memos written in the aftermath of 9/11 by the Office of Legal Counsel (OLC). Seven of these documents, written between 2001 and early 2003, outlined the authority of the president to fight terror, but they gave a misleading picture of that authority as virtually unlimited by ignoring treaties, statutes, and even the Constitution itself. (Others have summarized the content of these documents.) These documents are extraordinary, as were the previously-released OLC legal opinions justifying torture. Even the Bush Administration, at its very end, finally retreated from the seven memos conclusions. Memos dated October 6, 2008 and January 15, 2009, issued by the acting head of OLC, Steven Bradbury, in effect repeal, reject and repudiate the conclusions of the seven prior memos. The question for historians now is how the memos came about, and the issue for policymakers is how to avoid similar disgraces in the future....
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On February 17th, a pet chimpanzee living in Connecticut violently attacked his owner's friend. The attack ended in horrifying injury to the friend and in the chimpanzee's being shot by the police and eventually bleeding to death. In the wake of this disturbing event, the House of Representatives passed a bill called the "Captive Primate Safety Act," which would outlaw the interstate transport of nonhuman primates to be used as pets. The matter is pending in the Senate. The two stated rationales for the bill are to protect human beings from attacks by nonhuman primates, and to protect nonhuman primates wild, rather than domestic, animals from being held in captivity as pets. In this column, I will focus on the second rationale and note that this and most other "anti-cruelty" legislation does little to protect nonhuman animals from human cruelty. Moreover, I will propose that this inefficacy in curbing animal mistreatment is an essential, rather than accidental, feature of the legislation.
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On February 11, a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit dismissed a defamation lawsuit against Steven D. Levitt, one of the co-authors of the book "Freakonomics." (Levitt is an economist; his co-author, Stephen Dubner, is a journalist and was not a defendant in the suit.) The suit was brought by John Lott, a fellow economist whose work is discussed in the book. In this column, I'll explain why the suit proved unsuccessful, and why I think the panel's decision was right in one respect, but off-base in another...
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