This week, Senator John McCain sought to shore up his support among conservatives by talking about what kinds of judges he would nominate if elected President. In one sense, McCain's remarks were completely predictable. For as long as I can remember, GOP candidates have used attacks on the judiciary as a bloody shirt to galvanize a right-wing base for which overturning liberal precedents, especially Roe v. Wade and decisions excluding prayer from public schools, remain passionate priorities. In a speech that could just as easily could have been given by any GOP presidential nominee since Barry Goldwater, ...

One of the most viable challenges to the Bush Administration's warrantless wiretapping program is a lawsuit brought in federal court in Oregon by an Islamic charity,the Al-Haramain Islamic Foundation, that alleges that it was subject to secret surveillance. In this case, unlike in the other National Security Agency (NSA) cases, the plaintiffs can demonstrate that the government actually listened to their conversations. That's because, as the Treasury Department was preparing to freeze the organization's assets, it inadvertently sent Al-Haramain attorneys an NSA log, classified as "Top Secret," of intercepted calls. The case involves the controversial and much-discussed "state secrets ...

Last week's decision by the Supreme Court in Crawford v. Marion County Election Board was an important election law ruling. But it was also much more. In today's column, I will discuss at least three noteworthy aspects of the opinions handed down by the Justices that reveal significant features of the emerging Roberts Court. What the Court Held and Its Importance for Political Contests Let us start by recapping the case. Plaintiffs challenged a 2005 Indiana law enacted on completely partisan lines (with Republicans in favor, and Democrats against) that required citizens voting in person on election day ...

Presidential candidates John McCain and Hillary Clinton have both recently endorsed a ìgas tax holidayî—a temporary suspension of the federal 18.4 cents per gallon excise tax on gasoline and 24.4 cents per gallon on diesel fuel—during the summer months, as a means of affording working Americans some relief from high fuel costs. The proposals differ in one important respect: Clinton would couple the temporary suspension of the tax at the pump with a windfall-profits tax on oil companies. Nevertheless, with or without an accompanying windfall-profits tax, the gas tax holiday is unjustifiable as a matter of policy, and ...

Last week, the Manhattan-based First Department of New York's Appellate Division sustained a jury's finding that the Port Authority of New York and New Jersey was liable in connection with the 1993 World Trade Center (WTC) attack. Now, unless the New York Court of Appeals -- New York's highest court – reverses that decision, the Port Authority will be required to pay up to $100 million in damages to 55 attack victims (or, if the victims are deceased, to their families). In this column, I will focus on how the court dealt with the most difficult issue ...

In September 2001, five days after the terrorist attacks that shocked the nation, Vice-President Dick Cheney announced on "Meet the Press" that the US government would need to start working "the dark side." "We've got to spend time in the shadows in the intelligence world," he explained. "A lot of what needs to be done here will have to be done quietly, without any discussion, using sources and methods that are available to our intelligence agencies, if we're going to be successful. That's the world these folks operate in, and so it's going to be vital for us to ...

Arizona Senator John McCain recently completed a "biographical" tour of the country in an effort to keep his name in the media as the presumptive GOP presidential nominee, given the fact that Senators Hillary Clinton and Barack Obama are currently consuming much of the newsroom oxygen. McCain ended that tour in Prescott, Arizona. A Prescott newspaper noted the symbolism of McCain's final speech at the historic Yavapai County Courthouse. This was the location where McCain's Republican predecessor, Barry Goldwater, started all his bids for office. McCain likes to refer to himself as a Goldwater Republican. Accordingly, the McCain campaign ...

Recently, Texas authorities entered the Yearning for Zion (YFZ) Ranch, which is one of the Fundamentalist Latter Day Saints (FLDS) compounds, with a warrant based on calls from a person who alleged that she was an underage girl being subjected to physical and sexual abuse, including rape, at the Ranch. Once the authorities entered, though, they discovered pregnant underage girls, girls with more than one child, papers indicating that rampant polygamy was occurring at YFZ, and even a document involving cyanide poisoning. The authorities then intelligently made the decision that they had to remove all of the children from a ...

On April 16, the U.S. Supreme Court heard argument in Kennedy v. Louisiana, a case challenging the constitutional validity of a death sentence imposed for the rape of a child. In this column, I will take up some of the intriguing ideas that emerged from the questions that various Justices posed to the attorneys arguing before them. In particular, Justice Ruth Bader Ginsburg and Chief Justice John Roberts, in their efforts to understand the force and content of earlier Court precedents, revealed important clues to their respective views on a variety of issues. Precedent on Point: Coker v. Georgia ...

It is old news to say that America has begun to have second thoughts about its relatively liberal rules of civil litigation. Tort reform has been the order of the day at both our state and federal legislatures. Meanwhile, the federal courts, led by the Supreme Court, have made it more difficult for consumers and workers to sue by limiting class actions, heightening pleading requirements, and expanding the scope of federal preemption. Ironically, while the United States is trying to make it harder to sue, the European Union ("EU") is trying to make it easier to sue, at least ...

Recently, Harry Potter author J.K. Rowling and Warner Brothers sued a small publisher that is planning to sell a lexicon/encyclopedia of her work. Commentary on the suit - such as Joe Nocera's February piece, supporting the small publisher, for the New York Times -- has played upon themes that have become increasingly familiar lately: the right of the original author to control her creative work, versus the supposed right of others to freely make use of it. The problem with these themes, however, is that the first is a constitutional and statutory reality, and the second still ...

This week marks the end of the Supreme Court's oral argument calendar for the 2007-2008 Term. Although many of this Term's blockbuster cases haven't yet been handed down (and won't be issued until May and June), it's not too early to begin looking ahead to the 2008-2009 Court session, and the important cases and issues the Justices will take up then. One noteworthy case on which the Court granted review a few weeks ago is Summum v. Pleasant Grove City. As fellow FindLaw columnist Michael Dorf noted earlier this month, the case lies at the intersection of a number ...

These days, when one speaks of a "war without end," the reference is usually to Iraq. But in the legal world, the phrase also provides an apt description of the five-decade-long fight over the constitutionality of the death penalty. Last week's decision in Baze v. Rees, in which the Court rejected a challenge to Kentucky's three-drug protocol for carrying out lethal injections, is just the latest painful yet inconclusive battle. Like the Court's many dozens of death penalty decisions, issued over the last 45 years, the decision in Baze ensures only that the larger war will continue and ...

"It's Malaysia's Guantanamo," the woman told me. I was visiting Kuala Lumpur, Malaysia, last week, to talk to an activist from a local human rights group. The group, SUARAM, has been leading a fierce campaign to abolish Malaysia's Internal Security Act (ISA), a law under which more than 70 men are currently held in preventive detention. Some of the men are suspected of belonging to Jemaah Islamiyah, a militant Islamist group responsible for terrorist bombings in Bali and elsewhere. Others are accused of common crimes like forgery. What they have in common--and what links them to detainees at Guantanamo--is ...

The voluntary public financing system for U.S. presidential candidates, established in the post-Watergate era, is in its last throes. As it collapses, presidential candidates have been calculating--and recalculating--the advantages of opting in or out. Sen. John McCain, the presumptive Republican presidential nominee, has accused Sen. Barack Obama, the likely (though not certain) Democratic presidential nominee, of going back on his word; according to McCain, Obama had said he would participate in the public financing program in the general election. Democrats, meanwhile, have gone to federal court for permission to sue McCain for improperly trying to opt ...