FindLaw

A Federal Appeals Court Invalidates the Federal Communications Commission's Massive Fine for the "Nipplegate" Super Bowl Incident: The Decision and Its Implications

FindLaw Writ - Recent Articles — Mon, 04 Aug 2008 00:00:01 GMT

On July 21, a three-judge panel of the U.S. Court of Appeals for the Third Circuit issued its decision in a closely-watched case arising out of the infamous moment during the 2004 Super Bowl when Janet Jackson's breast was bared for a fraction of a second. The Federal Communications Commission (FCC) imposed a $550,000 fine on CBS, the broadcaster, based on Jackson's nudity. CBS then challenged the fine in court. The panel ruled in CBS's favor. Unfortunately, however, its ruling is largely limited to the particular context of FCC policy as it stood at the time of the Super Bowl. If the same kind of incident were to happen this year, the fine might be upheld - especially if the performer at issue were an employee of the broadcaster, rather than an independent contractor like Janet Jackson. ......(read more)

Does Recognition of the Right of Same-Sex Couples to Marry Impose Undue Burdens on People Who Reject Same-Sex Marriage on Account of Religious Convictions? An Evaluation of This Objection to the Massachusetts and California Same-Sex Marriage Decisions

FindLaw Writ - Recent Articles — Fri, 01 Aug 2008 00:00:01 GMT

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. ......(read more)

Congress Passes a Resolution Apologizing for America's History of Slavery and for the Jim Crow System: Why This Symbolic Gesture, like the Recent Senate Resolution Regarding Native Americans, Falls Woefully Short of True Justice

FindLaw Writ - Recent Articles — Thu, 31 Jul 2008 00:00:01 GMT

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. ......(read more)

Keeping Consumers Safe from Defective Imported Products: After a Year of Executive and Congressional Investigations, Testimony, and Posturing, Are We Any Safer?

FindLaw Writ - Recent Articles — Wed, 30 Jul 2008 00:00:01 GMT

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. ......(read more)

What California's Trans Fat Ban Teaches Us About Federalism

FindLaw Writ - Recent Articles — Tue, 29 Jul 2008 00:00:01 GMT

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. ......(read more)

Debating Human Rights and Counterterrorism in Britain

FindLaw Writ - Recent Articles — Mon, 28 Jul 2008 00:00:01 GMT

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. ......(read more)

Congressman Kucinich's Impeachment Resolution, the Parallel to Nixon, and Why Even Nixon's Defenders Finally Abandoned Him

FindLaw Writ - Recent Articles — Fri, 25 Jul 2008 00:00:01 GMT

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. ......(read more)

The United States Senate Judiciary Committee Holds Hearings on Polygamy Crimes: What Needs to Be Done at the Federal Level to Protect Children from Abuse and Neglect

FindLaw Writ - Recent Articles — Thu, 24 Jul 2008 00:00:01 GMT

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. ......(read more)

Defamation and the Internet: How the Law Effectively Allows Bloggers to Take Risks Big Media Companies Can't, and How Companies Can Work to Level the Playing Field

FindLaw Writ - Recent Articles — Wed, 23 Jul 2008 00:00:01 GMT

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. ......(read more)

Flying Solo: Five Key Lessons I Learned From Starting My Own Practice

FindLaw Writ - Recent Articles — Tue, 22 Jul 2008 00:00:01 GMT

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. ......(read more)

With the Spanish Parliament Poised to Extend "Human Rights" to Great Apes, What are the Implications for Human Beings and Other Animals?

FindLaw Writ - Recent Articles — Mon, 21 Jul 2008 00:00:01 GMT

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. ......(read more)

Why A Federal Judge Was Right to Dismiss Former Congressman Gary Condit's Most Recent Defamation Suit Against Journalist Dominick Dunne For Comments Relating to Chandra Levy's Murder

FindLaw Writ - Recent Articles — Fri, 18 Jul 2008 00:00:01 GMT

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. ......(read more)

What the Past Term Reveals About the Roberts Court: Evidence that the Court Is Disturbingly Elitist and Anti-Democratic

FindLaw Writ - Recent Articles — Thu, 17 Jul 2008 00:00:01 GMT

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. ......(read more)

The Application for an ICC Warrant to Arrest Sudanese President Al Bashir on Charges of Genocide: An Important But Potentially Counterproductive Symbolic Gesture

FindLaw Writ - Recent Articles — Wed, 16 Jul 2008 00:00:01 GMT

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. ......(read more)

Going to the Dogs? Leona Helmsley's Dog, Trouble, Has Her Trust Slashed, but the Rest of the Nation's Dogs May be Sitting Pretty

FindLaw Writ - Recent Articles — Tue, 15 Jul 2008 00:00:01 GMT

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. ......(read more)