National Law Journal

FCPA OPINION PROCEDURE: DOJ's speed improves

2008-08-05T13:48:01Z

A year and a half ago, I wrote here about how the Department of Justice's Foreign Corrupt Practices Act (FCPA) opinion procedure was cumbersome, slow and ripe for reform. I'm writing now to correct the record and give DOJ its due for proving me wrong. The department's most recent FCPA opinions were done in record time and on expedited schedules. But DOJ's sprint in issuing those releases only highlights the lingering question of whether this useful tool is reaching its full potential....(read more)

INTERNAL INVESTIGATIONS: End the outsourcing

2008-08-05T13:48:01Z

DOJ has wielded enormous leverage over companies whose employees are suspected of criminal activity. There have been calls for legislation prohibiting DOJ from considering a company's agreement to waive privilege when deciding whether to indict it. Deputy Attorney General Mark Filip recently wrote a letter to Senator Arlen Specter, R-Pa., asking that the Senate hold off while DOJ (again) modifies its guidelines. Specter has indicated reluctance to wait any longer. He's right. It's time for Congress...(read more)

MANDATORY ARBITRATION : Big business acts the bully

2008-08-05T13:48:00Z

These days, when things do not work right, Americans are being bullied. Faceless, soulless "customer service" departments steal our dignity while pretending to pay attention to our complaints. Increasingly, we cannot do that other American thing: sue 'em. Mandatory arbitration takes care of that. The U.S. Supreme Court, expanding a 1925 law to places no member of Congress intended it to go, has allowed corporate bullies to limit their liability and hide their dirty linen through privatized "justice....(read more)

THE KOZINSKI FLAP: Chill out, it's just sex

2008-07-28T00:59:17Z

What surely will pass as one of the summer's richer ironies is the scene that unfolded in a Los Angeles courtroom where a respected federal judge presided over an obscenity trial, all the while keeping a substantial stash of porn on his personal Web site. Without question, Judge Alex Kozinski is a bright light on the federal bench. Just because a person looks at pornography for fun does not mean that that person, even a federal judge, cannot perform his job duties in a professional and competent...(read more)

LAW SCHOOL CLINICS: Helping our troops

2008-07-28T00:59:17Z

Law schools have a unique potential in helping members of the armed forces: forming clinics to provide them with legal assistance. Only one initiative has emerged so far to fulfill that potential: the Clinic for Legal Assistance to Servicemembers at George Mason University School of Law. This clinic has received many inquiries from law schools (and others) about launching a similar program. There are a number of key elements underlying a successful program that interested law schools should keep...(read more)

LAW SCHOOL RANKINGS: Say 'enough' to 'U.S. News'

2008-07-28T00:59:17Z

As almost all, if not all, law school deans now take for granted, the U.S. News & World Report law school ranking methodology is susceptible to manipulation and remarkably poor as a measure of a school's quality of education and contribution to the healthy development of the law. Gary Simson, dean of Case Western Reserve University School of Law, proposes that law school faculties and administrations everywhere finally say "enough" and stop participating in a ranking system that has done substantial...(read more)

OUR VIEW: Teaching future lawyers

2008-07-05T22:36:17Z

Legal education has been in the news lately. In this weeks' opinion section, the deans of two leading law school discuss curriculum changes to make legal education more relevant to how law is practiced. But what works for top law school may not be ideal for so-called lower tiers. The skills a new lawyer needs for a mega firm are significantly different from those bound for smaller firms, solo work, public interest or the public sector....(read more)

LEGAL EDUCATION: Beyond the first year

2008-07-05T22:36:17Z

A principal problem identified by the Carnegie Foundation is that law schools do not focus enough on what it means to be a lawyer. While schools are very effective in teaching abstract concepts, particularly in the first year, once students have learned how to think like lawyers, they are not trained in the skills or culture so necessary to be lawyers. To meet this challenge, schools are urged to experiment with substantive specializations in the second and third years and to increase clinical offerings...(read more)

LEGAL EDUCATION: Stress core competencies

2008-07-05T22:36:17Z

Northwestern University School of Law recently undertook a comprehensive analysis of what capabilities today's law students will need to excel in their careers. The school, with the assistance of a consulting firm, gathered extensive research on legal education and legal profession trends; received input from faculty, alumni and students; and talked to the lawyers affecting the trends. The outcome is a major new plan to screen for and develop the core competencies that are at the heart of our analysis...(read more)

GAY MARRIAGE: Voting is not final say

2008-06-26T19:51:46Z

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...(read more)

DISABILITY DISCRIMINATION: Enact the ADAAA

2008-06-26T19:51:45Z

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...(read more)

FCC RULES AND TOWN HALL PLANS: Equal time for the forums?

2008-06-26T19:51:45Z

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...(read more)

OUR VIEW: Habeas corpus rights

2008-06-20T21:23:39Z

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...(read more)

HOUSING DISCRIMINATION: Landmark case at 40

2008-06-20T19:53:13Z

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...(read more)

PARTIAL-MATCH DNA: Privacy invasion has no end

2008-06-20T19:53:13Z

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...(read more)