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June 2008 - Posts
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The next round in the culture wars is scheduled for this fall in California. Voters will decide on a measure to ban — actually reban — same-sex marriage. Yet the actual "decider" may be the U.S. Supreme Court. Should the ballot measure pass, it will immediately be under a federal constitutional cloud. As Justice Robert Jackson wrote, "Fundamental rights may not be submitted to a vote, they depend on no elections." If the measure passes, it should be struck down. But Californians should vote it down instead.
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Seventeen years after the passage of the Americans With Disabilities Act (ADA), Representative Stenny Hoyer, D-Md., introduced the ADA Restoration Act (ADARA). (Its clone is pending in the Senate.) Happily, the ADARA seems to be on the legislative front burner. Indeed, it is high time that Congress give back what the U.S. Supreme Court has taken away. As a result of grudging construction, the ADA's workplace provisions fall far short of furnishing the protective umbrella envisioned by the act's architects.
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The recently discussed plan by the McCain and Obama campaigns to stage televised town hall forums before either candidate is formally nominated may not comply with the Communications Act of 1934 and FCC decisions applying it. Under the "equal time" rule, each "legally qualified" candidate is entitled to precisely the same amount of air time as any other. The FCC deems debates to be "on-the-spot coverage of a bona fide news event," — an exception to the rule; the FCC has not yet ruled on town hall forums.
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The U.S. Supreme Court ruled, 5-4, in Boumediene v. Bush that detainees at Guantánamo Bay, Cuba, "are entitled to the privilege of habeas corpus to challenge the legality of their detention." The majority held that the Military Commissions Act of 2006, which denied the writ of habeas corpus to alien detainees whom the government claims to be enemy combatants, "operates as an unconstitutional suspension of the writ." Specifically, the decision ruled that the suspension clause of the Constitution applies to the detainees and that the tribunal procedures for combatant status review under the Detainee Treatment Act of 2005 are not an adequate substitute for habeas
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On June 17, 1968, the U.S. Supreme Court held in Jones v. Alfred H. Mayer Co. that Congress had the power to outlaw private housing discrimination. It based its decision on the 13th Amendment, which empowered Congress to "pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States." Today, its holding is worth re-examining. The court found that 42 U.S.C. 1982 clearly extended to private action, and Congress had the constitutional power to enact such a statute.
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The granting of a warrant for DNA testing differs from the granting of a more traditional sort of warrant. The invasion of privacy involves the permanent recordation of someone's unique genetic code, with the consequence that at any moment, unknown and unknowable hands and eyes may subject that code to analysis and reanalysis. A partial DNA match says nothing more than that someone who may have committed a crime is related to someone who didn't commit the crime. Whatever that is, it isn't probable cause.
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Although newly minted male law school grads are happy to celebrate their accomplishments, many also worry about their future. They worry whether they will be able to find a healthy balance between their careers and family life. We recently surveyed students at NYU School of Law about work/family issues. We expected women to be worried, but we found men to be equally concerned. Such concerns are not a passing trend. Firms that wish to stay competitive must pay attention and adapt their policies accordingly.
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Great cases, like hard cases, make bad law, because those cases involve some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. And so one of the greatest recent cases of such distortion of well-established law was the tragic one of Terri Schiavo, a disabled woman clinging to life in Florida medical facilities and courtrooms.
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On May 27, the U.S. Supreme Court took the right approach to retaliation in the workplace by recognizing that the employment discrimination statutes should be read broadly to encompass retaliation claims. The court correctly found that retaliation against an employee for complaining about discrimination is itself discriminatory conduct. Yet the court's expansive reading of retaliation claims contrasts sharply, and unsupportably, with its cramped approach to other types of discrimination claims.
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D.C. v. Heller, Justice Anthony Kennedy invoked the remote settler defending "himself and his family against hostile Indian tribes and outlaws, wolves and bears, and grizzlies." At stake was whether the Second Amendment protects an individual right to keep and bear arms. Proponents of an individual right claim that the amendment reflects a deeper constitutional principle - the individual right of self-defense. This invocation stops well short of the broader and more apt Second Amendment principle of protection.
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Our nation has one set of assumptions and rules for helping our fellow humans free themselves from political repression, but we hesitate and then do not act when our global neighbors are subject to genocide or a natural disaster's equivalent. Borders are important to all countries, but there should be a more consistent understanding of when a country, by its membership in the U.N. or participation in the global economy, has agreed that its borders are not sacrosanct in all circumstances.
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It may seem strange that although survey after survey indicates that a majority of barristers and members of the British public favor continuing the 300-year-old-tradition of wigs and gowns in court, the lord chief justice of England and Wales remains implacable. He has decreed that, starting in October, the wigs will disappear from judges in civil and family cases. But why? I think I know why. In fact, I believe I can claim a small but critical role in planting the seed of Lord Phillips's revolution.
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