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By TOM MELSHEIMER and CRAIG SMITH
Businesses' Fear of U.S. Jury System Is Irrational
Attorney Tom Melsheimer and Judge Craig Smith comment on the pervasive yet irrational fear of juries that plague businesses in litigation. Tuesday, August 2, 2011By CARL TOBIAS
Confirming Circuit Judges in the 112th Senate
FindLaw guest columnist and University of Richmond law professor Carl Tobias comments on the numerous vacant judge seats in the Federal Judiciary. He also advocates Senate confirmation of Bernice Donald before the August recess. Monday, August 1, 2011By MARCI A. HAMILTON
The Progress We've Made -- and Haven't Yet Made -- on Child-Sex-Abuse Statutes of Limitations: 2010, the Year in Review
FindLaw columnist and Cardozo law professor Marci Hamilton comments on ten developments, in ten different states across the nation, regarding statutes of limitations in child-sex-abuse cases. As Hamilton explains, states are considering issues such as whether to create a "window" in which child-sex-abuse cases can be brought despite the expiration of statutes of limitations; whether to lengthen existing statutes of limitations; and whether the recovery of repressed memories should affect statutes of limitations. Hamilton contends that -- because victims typically take many years to come forward -- unless there is statute-of-limitations reform, there will be no justice. Thursday, December 30, 2010By ANITA RAMASASTRY
Are Online Screen Shots Electronic Receipts for Purposes of the Federal Law Known As FACTA? Why the Right Answer Is "No"
FindLaw columnist and U. Washington law professor Anita Ramasastry discusses two recent judicial decisions that address the question whether the Fair and Accurate Credit Transactions Act of 2003 (FACTA) applies to online screen shots. FACTA prohibits merchants that accept credit cards or debit cards for payment from printing more than the last 5 digits of the card number or the card's expiration date upon any receipt provided to the cardholder at the point of the sale or transaction -- but only if the receipt is “electronically printed." The question the courts addressed was whether an online screen shot of credit-card information counts as being "electronically printed," and thus comes within FACTA. Wednesday, December 29, 2010By JULIE HILDEN
The "I (Heart) Boobies!" Bracelets Controversy Goes to Court: Why the Students Are Right and the Schools Are Wrong
FindLaw columnist, attorney, and author Julie Hilden comments on a controversy that has recently divided students, parents, and administrators in public schools in a number of states -- and that, in at least one state, has led to an ACLU lawsuit: Students are wearing bracelets, purchased from a public-interest foundation, that bear the message "I (Heart) Boobies!" The foundation is selling the bracelets to convey the point that although many people believe that breast cancer is a disease afflicting only women over 40, it is also the largest cause of cancer deaths in women under 40-- and can even affect young girls. Wearing the bracelets has become a popular trend among teens, but some school administrators have banned them, on the grounds that they are vulgar, lewd, and/or disruptive. Hilden argues that such bans should be held to violate the First Amendment -- but she also notes that some prior Supreme Court precedent may support the schools' decisions. Tuesday, December 28, 2010By JOANNE MARINER
The Year in Counterterrorism
FindLaw columnist and human rights attorney Joanne Mariner looks back on 2010 to survey developments relating to counterterrorism. Mariner covers leading cases, relevant books, and WikiLeaks's release of a series of cables from U.S. diplomatic representatives in Spain and Germany that revealed sharp tensions based on those countries' negative views of Bush Era counterterrorism measures. Overall, Mariner notes that recent developments illustrate how elements of the post-9/11 world are still very much in flux. The court cases Mariner considers raise issues such as whether U.S. courts can hear habeas corpus petitions from detainees arrested far from any battlefield; whether speech deemed to constitute "material support" of a terrorist group can constitutionally be banned; and whether decisions regarding targeted killings of alleged Al Qaeda members should be resolved by the courts or the executive branch. Monday, December 27, 2010By ANITA RAMASASTRY
Twitter in the Court: How the WikiLeaks Controversy Brought the Micro-Blogging Service Into a UK Courtroom
FindLaw columnist and U. Washington law professor Anita Ramasastry comments on a recent interim guidance document issued by Igor Judge -- the Lord Chief Justice of England and Wales -- that allows reporters to use the micro-blogging service Twitter in UK courtrooms. Ramasastry explains the import of the interim guidance document; explains how the document's issuance resulted from the high-profile UK WikiLeaks case; and describes how, despite the guidance, individual judges still retain power over micro-blogging in their own courtrooms. In addition, she describes earlier UK law that may affect micro-blogging in the courtroom. Finally, Ramasastry points to the irony that -- while in general, the US has much more liberal press freedoms than the UK -- on the Twitter issue the UK may well be ahead of the US from a free-speech perspective. Ramasastry contends that more courts and judges should allow services such as Twitter to be used in courtrooms. Thursday, December 23, 2010By SHERRY F. COLB
Prison as the Default Option: The U.S. Supreme Court Considers a California Case
FindLaw columnist and Cornell law professor Sherry Colb comments on Plata v. Schwarzenegger, a prisoners' rights case in which the U.S. Supreme Court recently heard oral argument. As Colb explains, the state of health care in California's prisons is appalling, largely due to overcrowding that strains resources to the breaking point. Accordingly, a specially-convened three-judge federal court invoked its authority under the Prison Litigation Reform Act to order a remedy that will -- if implemented -- likely mean that California will release tens of thousands of prisoners over the next two years. Colb explains the issues that the case raises under the Eighth and Fourteen Amendments -- which prohibit cruel and unusual punishment -- and explains the ways in which some of the Court's Justices seemed to be thinking about these issues at oral argument. In addition, she considers how this case puts at issue the assumption that -- even when non-violent offenders are at issue -- prison terms are necessary to protect the public. Colb asks, do prisons need to be as crowded as they are? For certain non-violent offenders, Colb points to alternatives to imprisonment such as fines, probation terms that can be revoked if their conditions are violated, house arrest, and monitoring via GPS implant. Colb suggests that we see imprisonment for non-violent offenders as an extreme remedy, and investigate other possible alternatives. Wednesday, December 22, 2010By JOANNE MARINER
Civil Society and Counterterrorism
FindLaw columnist and human rights attorney Joanne Mariner comments on a key issue that was raised by the recent conference that launched the International Centre for Counter-Terrorism – The Hague ("ICCT--The Hague"). As Mariner explains, ICCT-- The Hague is a think tank that will carry out research and analysis relating to counterterrorism. The conference focused upon post-September 11th counter-terrorism measures. Mariner considers one issue that it raised, in particular: Can civil society efforts play a role in counter-terrorism by resolving potentially violent conflicts, remedying underdevelopment, calming religious tensions, or addressing other conditions conducive to the spread of terrorism? Mariner notes that some government actually may see civil society organizations as more of a hindrance than a help, when it comes to counterterrorism efforts. She recalls, in particular, post-9/11 Bush Administration suggestions that civil society groups whose members criticized Administration measures were aiding terrorism and eroding national unity. Given America's free-speech tradition, Mariner notes, the U.S. groups that faced government criticism still kept speaking out independently. But in other countries, she warns, the same may not be true; civil society organizations may end up being subject to sanctions, or else being co-opted by the government. Tuesday, December 21, 2010By JULIE HILDEN
Can a High-School Cheerleader Be Required to Cheer For a Player She Says Assaulted Her? The U.S. Court of Appeals for the Fifth Circuit Says Yes
FindLaw columnist, attorney, and author Julie Hilden comments on a decision issued by a three-judge panel of the Fifth Circuit this Fall, rejecting a cheerleader's contention that she should have been allowed to stay silent rather than be required to cheer for a basketball player who she claims assaulted her. (She cheered for the team, but not for this player individually.) Hilden describes several Supreme Court cases regarding the right not to speak, and contends that the three-judge panel ought to have taken these precedents into account. Hilden also expresses doubt as to whether -- prior to fact discovery -- the panel correctly decided that the cheerleader's silence created "substantial interference with the work of the school," as it held that Supreme Court precedent required. Monday, December 20, 2010By VIKRAM D. AMAR
An Additional Post-Mortem on the Ninth Circuit Oral Argument in the Proposition 8 Case
FindLaw columnist and U.C., Davis law professor Vikram Amar comments on the recent oral argument regarding Proposition 8 -- California's anti-same-sex-marriage ballot initiative -- that was presented before a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit. (Professor Michael Dorf also wrote on that argument recently for this site, and Amar contrasts his view with Dorf's on certain points.) Amar comments on a set of key issues: Did the initiative sponsors have standing (that is, the legal right) to defend Prop. 8? Should the Ninth Circuit "certify" the standing question to the California Supreme Court, on the ground that it is a disputed issue of California law? What happens if no party that is currently defending Prop. 8 has standing to do so? How relevant is the U.S. Supreme Court's Romer precedent to this case? Will it -- and should it -- matter to the U.S. Supreme Court, if it takes this case or another gay-marriage case, that more than 40 states still refuse to recognize gay marriage? Friday, December 17, 2010By CHRIS ELMENDORF
Voter Confusion and the Single-Subject Rule: Prop. 26 as a Test-Case-in-Waiting, Part Two in a Two-Part Series
In Part Two in a two-part series of columns regarding California's Proposition 26, FindLaw columnist and U.C., Davis law professor Chris Elmendorf provides additional commentary as to why Prop. 26 may be invalid. As Elmendorf explains, under California's Constitution, constitutional amendments that are effected via ballot initiative must comply with a single-subject rule -- that is, they must address only one subject, in order to avoid voter confusion. However, Prop. 26 appears to address two separate subjects: reclassifying regulatory fees as taxes, and changing the trigger for the supermajority/referendum requirement. Here, Elmendorf considers the merits of possible tests that would ascertain whether the single-subject rule has been violated by a given Proposition, and endorses a test that looks to voter confusion. He also looks to Prop. 26 itself, and concludes that it should fail the voter-confusion test. Friday, December 17, 2010By NEIL H. BUCHANAN
Opportunism and the Debate about Deficits and Debt: Why Democrats Should Not Use Republicans' Hypocrisy as a Weapon
FindLaw columnist, Cornell Visiting Scholar, George Washington law professor, and Economics PhD Neil Buchanan critiques a frequently-heard argument that is made by Democrats. The argument goes as follows: The Republicans are hypocrites in that they purpose to oppose deficit spending, yet they also support low tax rates on taxpayers whose Adjusted Gross Income is over $250,00o -- a position that will inevitably require deficit spending. Buchanan contends that the Democrats are unwise to make this argument, because it plays into a greater fallacy: that deficit spending, and debt generally, are inherently bad. Buchanan discusses the history that has convinced many Americans that deficits are, by nature, bad; discusses deficits as a leading issue in 2010 electoral debates; considers why Democrats and Progressives are now embracing anti-deficit rhetoric; and argues that their doing so is a grave mistake. Thursday, December 16, 2010By CHRIS ELMENDORF
Voter Confusion and the Single-Subject Rule: Prop. 26 as a Test-Case-in-Waiting, Part One in a Two-Part Series
In Part One in a two-part series of columns regarding California's Proposition 26, FindLaw columnist and U.C., Davis law professor Chris Elmendorf comments on why Prop. 26 may be invalid. As Elmendorf explains, under California's Constitution, constitutional amendments that are effected via ballot initiative must comply with a single-subject rule -- that is, they must address only one subject, in order to avoid voter confusion. But Prop. 26 appears to address two separate subjects: reclassifying regulatory fees as taxes, and changing the trigger for the supermajority/referendum requirement. In addition, Elmendorf notes, voters may not have focused on -- or even known about -- the "trigger change" aspect of the proposition. Thursday, December 16, 2010By MICHAEL C. DORF
A Viewer's Guide to the Ninth Circuit Oral Argument in the Proposition 8 Case
FindLaw columnist and Cornell law professor Michael Dorf comments on the recent oral argument, before a three-judge panel of the Ninth Circuit, in the case involving a challenge to Proposition 8, California's anti-same-sex-marriage ballot initiative. Dorf covers the issue of standing (that is, whether the initiative sponsors were the legally-appropriate persons to defend Prop. 8 and if not, who is); explains an interesting argument that was raised, as to whether taking away a right is different and perhaps worse than not granting it in the first place; and considers the initial issue that the panel faces as to what level of judicial scrutiny ought to be employed in evaluating Prop. 8. Finally, Dorf considers the role that specific prior precedents may play in the panel's decisionmaking. Monday, December 13, 2010By JOHN W. DEAN
WikiLeaks: For Better or Worse -- or Both?
FindLaw columnist and former counsel to the president John Dean comments on the WikiLeaks controversy, which culminated this week with the arrest of WikiLeaks Editor-in-Chief Julian Assange. Dean argues that the best attitude toward WikiLeaks is a moderate one, contending that "those who see Assange and other WikiLeaks members as evil and horrifying are just as wrong as those who find them heroic and praiseworthy." In making his case, Dean draws upon the work of philosopher Sissela Bok, who argues that societies need some level of secrecy, and that there is a critical difference between leakers and whistleblowers, who act for altruistic reasons to ferret out societal ills. Dean urges WikiLeaks to adopt a stringent set of criteria for when disclosure is appropriate (one that goes much further than simply prohibiting disclosures that will lead to deaths), and to consider that the site's disclosures may become a tool for wrongdoing governments and individuals to exploit. Friday, December 10, 2010By MARCI A. HAMILTON
The Catholic League, the American Atheists, and the Spirit of Christmas
FindLaw columnist and Cardozo law professor Marci Hamilton comments on the recent billboard back-and-forth between the American Atheists and the Catholic League; and on the controversy over the inclusion, in a Smithsonian display, of a video by the well-respected artist David Wojnarowicz depicting an image of a crucifix covered with ants. Hamilton contends that there shouldn't be a controversy over the Wojnarowicz video, which has been pulled from the show, because the Constitution provides definitive answers: We are -- and are guaranteed the right to be -- a religiously-diverse population, with agnostics and atheists also in the mix; and the government cannot constitutionally censor art. She thus calls for the Smithsonian to restore the Wojnarowicz video to its rightful place in the exhibit. Thursday, December 8, 2010By SHERRY F. COLB
The U.S. Supreme Court Considers Whether Police Can "Make Their Own Exigency" in the Fourth Amendment Context
FindLaw columnist and Cornell law professor Sherry Colb comments on a case in which the Supreme Court granted review earlier this year, Kentucky v. King. As Colb explains, the case involves the "exigent circumstances" exception to the Fourth Amendment's requirement that, before conducting a search, police must first procure a warrant from a neutral magistrate. In the case before the Court, police knocked on the door of an apartment that smelled of marijuana (and that they had misidentified as being the apartment where a drug dealer they were chasing had taken refuge) and announced their presence. Then, the police heard movement inside the apartment -- which they interpreted as the sound of evidence being destroyed. The police thus forced their way into the apartment. Later, in court, the police invoked the "exigent circumstances" exception to the Fourth Amendment to justify their conduct, on the ground that if they had not entered when they did, the evidence would have been gone by the time that they could return with a warrant. The Fourth Amendment issue here arises because, had the police not knocked and announced their presence, the evidence might never have been destroyed at all. Colb considers two possible tests that courts have used to determine whether a police-created exigency like this one can fit the exigent circumstances exception, and contends that one is superior and should be adopted by the Supreme Court. Wednesday, December 8, 2010By JOANNA L. GROSSMAN & DEBORAH L. BRAKE
Protection Against Workplace Retaliation: The Supreme Court Hears Argument in Thompson v. North American Stainless, Part Two in a Two-Part Series
In Part Two in a two-part series of columns, FindLaw columnist and Hofstra law professor Joanna Grossman and FindLaw guest columnist and University of Pittsburgh law professor Deborah Brake continue their commentary on an employment-discrimination case in which the Supreme Court will hear argument this week, Thompson v. North American Stainless. As Grossman and Brake explain, it is well-established that it is illegal for a company to fire an employee for filing a charge alleging employment discrimination with the Equal Employment Opportunity Commission (EEOC). The Thompson case raises a related issue: Is it also illegal for a company to fire the person to whom the person who filed the EEOC charge is engaged to be married, in retaliation for the filing of the charge? In this second column in the series, Grossman and Brake preview the arguments that each side is likely to present before the Supreme Court, and explain the core issues that are at stake in the case. Tuesday, December 7, 2010By JOANNA L. GROSSMAN & DEBORAH L. BRAKE
Protection Against Workplace Retaliation: The Supreme Court Hears Argument in Thompson v. North American Stainless, Part One in a Two-Part Series
In Part One in a two-part series of columns, FindLaw columnist and Hofstra law professor Joanna Grossman and FindLaw guest columnist and University of Pittsburgh law professor Deborah Brake comment on an employment-discrimination case in which the Supreme Court will hear argument this week, Thompson v. North American Stainless. As Grossman and Brake explain, it is well-established that it is illegal for a company to fire an employee for filing a charge alleging employment discrimination with the Equal Employment Opportunity Commission (EEOC). The Thompson case raises a related issue: Is it also illegal for a company to fire the person to whom the person who filed the EEOC charge is engaged to be married? In this first column in the series, Grossman and Brake cover the facts of the case, the anti-retaliation provision of Title VII, the main federal anti-employment discrimination statute, the relevant Supreme Court precedents, and the relevant decisions from the U.S. Courts of Appeal. Monday, December 6, 2010By VIKRAM D. AMAR
Now That the Proposition 8 Appellate Judges Are Known, What Is The Likely Outcome?
FindLaw columnist and U.C., Davis law professor Vikram Amar continues his series of columns commenting on the litigation involving Proposition 8, California's anti-same-sex-marriage initiative. As Amar explains, the identities of the three judges who will make up the panel of the U.S. Court of Appeals for the Ninth Circuit that will hear the case are now known. Amar comments on the political leanings of each of the three panel members; explains the two big questions relating to Proposition 8 that the panel will face; and cites several factors that make the outcome here especially difficult to predict. In addition, he focuses in particular on the role that veteran jurist and old-school liberal Stephen Reinhardt may play. Friday, December 3, 2010By NEIL H. BUCHANAN
Financial Fraud, Ponzi Schemes, and Legitimate Economic Policies: Misunderstandings of, and Overreactions to, the Financial Crisis and the Great Recession
FindLaw columnist, Cornell Visiting Scholar, George Washington law professor, and Economics PhD Neil Buchanan argues that commentary and reportage on the financial crisis and the recession have, in many cases, led to common and dangerous misunderstandings about what actually occurred, and why. In particular, Buchanan focuses on a number of popular beliefs that he contends are clear fallacies: Debt, he contends, is not inherently bad, and certain policy choices (such as Social Security and monetary policy, including the policy of "Quantitative Easing") have lately been falsely characterized as Ponzi schemes. Buchanan warns that baleful consequences may ensue if Americans continue to opposite needed policy measures based on a misunderstanding of their nature. Thursday, December 2, 2010By MICHAEL DORF
What Hal Steinbrenner and Kim Jung-Il Have in Common: Lessons in Brinksmanship
FindLaw columnist and Cornell law professor Michael Dorf examines two very disparate situations and considers what they have in common, as a matter of strategic thinking. The first situation is the current, tense standoff between North Korea, on one hand, and South Korea and its allies, including the U.S., on the other. The second situation is the contract negotiation with longtime Yankees shortstop and team captain Derek Jeter. At first glance, the two situations could hardly seem more dissimilar. But, as Dorf explains, they share the vital element of brinksmanship, and the context of each may make it difficult for the parties to act rationally. Wednesday, December 1, 2010By ANITA RAMASASTRY
The FBI's Alert Regarding "Sextortion": Why Cyber Blackmail, Though Illegal, Is Difficult to Stop and What Computer Users Can Do
FindLaw columnist and U. Washington law professor Anita Ramasastry comments on an increasingly common crime about which the FBI recently issued an alert: "sextortion." As Ramasastry explains, "sextortion" begins when the culprit either hacks into a person's computer or impersonates one of the person's friends online, in order to gain access to sexually-explicit photos or videos of that person. The crime continues when the culprit then threatens to disseminate the compromising photos or videos, unless the victim provides money or sends more compromising photos or videos. Ramasastry discusses the major "sextortion" plot that led to the FBI alert; explains why current federal and state criminal laws are applicable in "sextortion" cases; and offers advice on how parents can avoid having their teens (who are typical victims) fall prey to such schemes. Tuesday, November 30, 2010By MARCI A. HAMILTON
So Who Is the Enemy, Exactly? A Portland Plot Should Remind Us of Crucial Questions We Need to Ask and Answer
FindLaw columnist and Cardozo law professor Marci Hamilton comments on America's approach to terrorism, in the wake of the recent plot by teenager Mohamed Osman Mohamud to set off a bomb at a crowded Portland, Oregon tree-lighting ceremony -- which was followed by what appears to have been an act of arson at the mosque Mohamud had attended. Hamilton contends that, while it's obvious that culprits like Mohamud and the arsonist belong in jail, it's less obvious what general strategy America should take toward homegrown terrorism. She also contends that the foiled plot should help teach us valuable lessons, such as (1) that we are not very good at identifying homegrown terrorists, especially when they have a westernized appearance; (2) that we are not well-aware of the activities and doctrine taught in the extremist subset of American mosques; and (3) that, more generally, the public needs more information on jihadism within America's borders. While Hamilton sharply challenges the claim that all Muslims are necessarily extremists, she calls for more information on, and investigation of, genuine extremists and the nature of their beliefs. Tuesday, November 30, 2010By JOHN W. DEAN
Sarah Palin and The Dumbing Down of the American Presidency
FindLaw columnist and former counsel to the president John Dean comments on the possible prospect of a Sarah Palin presidency. Dean's view is that it is unlikely that Palin is currently prepping, with her sixteen-state book tour, for a 2012 presidential run, but he believes we may well see her run in 2016. Dean also comments on a number of related topics : (1) a recent New York Times Magazine profile on Palin; (2) Nixon biographers' views of Palin as Nixonian; and (3) the chance that-- if Palin did run in 2012 -- President Obama would swap Joe Biden for Hillary Clinton in choosing a running mate. Dean sees a possibility that Palin might transform herself into a viable candidate for 2016, but not for 2012 -- noting that right now, polling shows that an overwhelming majority of Americans see her as unqualified to be president. Finally, Dean raises a strong concern that the presidency is being "dumbed down" over time, and explains the basis for that concern. Monday, November 29, 2010By JOHN W. DEAN
Sarah Palin and The Dumbing Down of the American Presidency
FindLaw columnist and former counsel to the president John Dean comments on the possible prospect of a Sarah Palin presidency. Dean's view is that it is unlikely that Palin is currently prepping, with her sixteen-state book tour, for a 2012 presidential run, but he believes we may well see her run in 2016. Dean also comments on a number of related topics : (1) a recent New York Times Magazine profile on Palin; (2) Nixon biographers' views of Palin as Nixonian; and (3) the chance that-- if Palin did run in 2012 -- President Obama would swap Joe Biden for Hillary Clinton in choosing a running mate. Dean sees a possibility that Palin might transform herself into a viable candidate for 2016, but not for 2012 -- noting that right now, polling shows that an overwhelming majority of Americans see her as unqualified to be president. Finally, Dean raises a strong concern that the presidency is being "dumbed down" over time, and explains the basis for that concern. Monday, November 29, 2010By SHERRY COLB
Does Denying Opposite-Sex Couples Access to Civil Partnership Violate Their Equality Rights?
FindLaw columnist and Cornell law professor Sherry Colb comments on an unusual type of lawsuit that is being brought in the U.K., and that could be brought in some states in the U.S., as well. The plaintiffs in the suit are a straight U.K. couple who seek access to the civil-partnership status that was enacted in the U.K. as an alternative to gay marriage. In the U.K., as Colb explains, the benefits of marriages and civil partnerships are identical; all that is different is the name. Is the straight couple correct that equality necessitates that straight couples have access to civil partnership, even though they already have access to marriage, which carries the same benefits? Colb examines a variety of interesting arguments that might cause us to answer "Yes" or "No," respectively, to that question. Wednesday, November 24, 2010By JULIE HILDEN
Should Juvenile Plaintiffs Who Fear Reprisals Be Able to Keep Their Identities Secret? The Question Divides the U.S. Court of Appeals for the Ninth Circuit
FindLaw columnist, attorney, and author Julie Hilden comments on the controversial issue of whether juvenile plaintiffs should be able to keep their identities hidden, on the ground that they fear retaliation based on the nature of the suits they and their parents have brought. As Hilden explains, this issue arose before the U.S. Court of Appeals for the Ninth Circuit this month -- in a case involving claims that the admissions practices of a unique set of private schools for Native Hawaiians violate race-discrimination laws. The appellate panel decided that the juveniles had to reveal their identities, but two of the Circuit's most respected judges dissented from the denial of a request that that the panel decision be reheard. Tuesday, November 23, 2010By JULIE HILDEN
Litigating the Stolen Valor Act: Do False Claims of Heroism in Battle Harm Genuine Heroes?
FindLaw columnist, attorney, and author Julie Hilden comments on the recent cases involving the Stolen Valor Act (SVA), a federal statute that criminalizes false claims that one has received certain medals from the U.S. government. Hilden explains the state of the current litigation regarding the SVA, and explains why the controversy over the statute -- which is now being litigated in the U.S. Courts of Appeals for the Ninth and Tenth Circuits -- may well make its way to the Supreme Court. Defenders of the SVA say it is necessary in order to keep medals sacred. Opponents say that criminalizing lies alone -- even when they are not intended to secure any concrete benefit, and do not cause any concrete harm -- is dangerous from a First Amendment perspective. Monday, November 22, 2010By VIKRAM D. AMAR
A Preview of Possible Outcomes of the Upcoming Proposition 8 Argument Before the U.S. Court of Appeals for the Ninth Circuit
FindLaw columnist and U.C., Davis law professor Vikram David Amar comments on the arguments that are expected to be made in the upcoming oral argument before the U.S. Court of Appeals for the Ninth Circuit, in the case involving Proposition 8, California's anti-same-sex-marriage initiative. Amar explains that, in addition to considering the merits of the case, the Ninth Circuit will very likely delve into the issue of standing -- that, the issue of whether the Proposition 8 sponsors had the legal right to defend Proposition 8. Amar also explains the circumstances under which the U.S. Supreme Court likely would -- or would not -- get involved in the Proposition 8 case. In addition, Amar addresses the question of what should occur if the initiative sponsors in fact lacked standing to defend Proposition 8, but California's Imperial County would have had standing to appear in the case to defend the Proposition, as it attempted to do. Finally, Amar notes how the outcome of the still-undecided California Attorney General race may matter to the case. Friday, November 19, 2010By NEIL H. BUCHANAN
The Draft Proposal from the Co-Chairs of the Deficit Commission: Cutting Spending Without Rhyme or Reason
FindLaw columnist, Cornell Visiting Scholar, George Washington law professor, and Economics PhD Neil Buchanan comments on the draft proposal that was issued last week (as a Power Point presentation) by the bipartisan Deficit Commission -- which is co-chaired by Alan Simpson, a long-serving former Republican U.S. Senator from Wyoming, and Erskine Bowles, a former Clinton White House Chief of Staff. Buchanan contends that if the proposal is adopted, it will be harmful to America, for cutting spending for the sake of cutting spending is no better than spending in an unprincipled way. Buchanan urges that the government should invest in future prosperity by being open to incurring debt for good reasons -- just as America's leading companies are open to that possibility, and often avail themselves of it. Thursday, November 18, 2010By JOANNE MARINER
Let's Talk About Waterboarding
FindLaw columnist and human rights attorney Joanne Mariner covers several developments that, she argues, together indicate that the U.S. government will continue to employ torture with impunity. Indeed, Mariner contends that the way America has embraced torture risks the "banalization" of the practice -- with former President George W. Bush expressing no remorse or even ambivalence about his waterboarding order; a U.S. Attorney's decision not to prosecute the CIA's destruction of videotapes of abusive interrogation practices; and the New York Times's acceptance of a piece co-authored by "torture memo" author John Yoo, whose legal work on the memos has been harshly criticized by the Justice Department's Office of Responsibility, and even by some fellow conservative attorneys. Mariner sees the current investigation of CIA crimes against detainees as a ray of hope in the midst of the other developments, but notes that the investigation is limited to interrogation practices that go further than even the "torture memos" authorized. Wednesday, November 17, 2010By ANITA RAMASASTRY
Facebook Can Legally Terminate Users -- as a Recent Lawsuit Explains -- But Cannot Violate the Covenant of Good Faith and Fair Dealing In Doing So
FindLaw columnist and U. Washington law professor Anita Ramasastry analyzes a case in which a prior Facebook user sued Facebook for terminating her from the site. Ramasastry notes that social-networking sites like Facebook have the right to terminate users, but adds that they must comply with their own Terms of Service and with the relevant state's law on the covenant of good faith and fair dealing that is held to be implicit in every contract. Ramasastry concludes that the court, in the case at issue, was right to hold against the Facebook user, but she notes that users may be more successful in convincing courts to order sites like Facebook to reinstate them as users in future cases involving different facts or different Terms of Service. Tuesday, November 16, 2010By MICHAEL C. DORF
A Supreme Court Arbitration Case Poses a Difficult Question of Federalism
FindLaw columnist and Cornell law professor Michael Dorf comments on a tricky and important case in which the Supreme Court recently held oral argument. As Dorf explains, the case presents the question whether the Federal Arbitration Act forbids California from overriding a contractual waiver of the right to bring a class action. Accordingly, the ruling will be important for consumers and businesses nationwide. Dorf also notes that the deeper issues of federalism that the case raises (such as how to determine if a state has consistently applied its own law) are mirrored in important precedents -- including Bush v. Gore. Monday, November 15, 2010By JOHN W. DEAN
The Tea Party's Apparent Willingness to Shut Down the Federal Government and What the Consequences May Be
FindLaw columnist and former counsel to the president John Dean comments on Tea Party candidates' plan to shut down the federal government in order to enforce spending limits. Dean describes how government-shutdown situations have historically played out, and contends that although such shutdowns are destructive overall, they have only advantages from the Tea Party's perspective. He notes that all those in Congress are oath-bound not to resort to shutdowns, and yet some do so anyway. Dean also predicts that it is possible that with a shutdown or shutdown threats, the Tea Party could successfully bully President Obama into complying with its demands. Friday, November 12, 2010By MARCI A. HAMILTON
The Oklahoma Referendum Prohibiting State Courts from Applying International or Sharia Law
FindLaw columnist and Cardozo law professor Marci Hamilton comments on the controversial referendum passed by Oklahoma voters on Election Day, purporting to forbid Oklahoma courts from applying international law or Sharia law (Islamic law). Hamilton focuses, in particular, on the referendum's prohibition on the application of Sharia law, arguing that it is very constitutionally problematic. Hamilton explains the basis for a suit challenging the law, which was brought by a Muslim man who wants to ensure that his will is probated, and his body prepared, in accordance with the law of his religion. In addition, she notes that one can argue that the referendum is vague (Which version of the many versions of "Sharia law" is targeted?), and that it arguably violates the separation of church and state -- particularly in light of the fact that some legislators said they supported the referendum in order to protect the State's Judeo-Christian heritage. Thursday, November 11, 2010By SHERRY COLB
Does Routinely Sampling DNA From Arrested Felons Violate The Fourth Amendment?
FindLaw columnist and Cornell law professor Sherry Colb comments on a case that the U.S. Court of Appeals for the Third Circuit has set for oral argument before the entire 14-judge court. As Colb explains, the issue in the case is whether, consistent with the Fourth Amendment, the government can routinely collect DNA samples from arrestees (without any showing of probable cause, and without a warrant). Colb notes that this important issue is likely to eventually make its way to the U.S. Supreme Court, and she considers the arguments and precedents on both sides. She also notes that the issue is made more complex by the point that there are two arguable rights-infringements here -- the taking of a buccal (inside-of-the-cheek) swab, and the analysis of the DNA collected via that swab. Wednesday, November 10, 2010By JOANNA GROSSMAN
In United States v. Flores-Villar, The Supreme Court Will Hear Argument on the Citizenship Rights of Non-Marital Children: Part Two in a Two-Part Series
In the second in a two-part series of columns on the upcoming Supreme Court case of United States v. Flores-Villar, FindLaw columnist and Hofstra law professor Joanna Grossman concludes her commentary on the core question the case raises: Can the conditions for a parent's passing down U.S. citizenship to a child differ, depending on whether the parent is the child's mother or father? Or, is this a form of illegal sex discrimination? (Part One in the series appeared on this site yesterday, November 8). Tuesday, November 9, 2010By JOANNA GROSSMAN
In United States v. Flores-Villar, The Supreme Court Will Hear Argument on the Citizenship Rights of Non-Marital Children: Part One in a Two-Part Series
FindLaw columnist and Hofstra law professor Joanna Grossman comments on the upcoming Supreme Court case of United States v. Flores-Villar. As Grossman explains, the case raises the following question: Can the conditions for a parent's passing down U.S. citizenship to a child differ, depending on whether the parent is the child's mother or father? Or, is this a form of illegal sex discrimination? In this column, Part One in a two-part series on Flores-Villar, Grossman covers the leading precedent on this issue, Nguyen v. INS. In Part Two, appearing tomorrow, November 9, on this site, Grossman will complete her analysis of the issues raised before the Court. Monday, November 8, 2010By VIKRAM AMAR
Putting Politics Aside, One Thing About This Week's Election Is Clear: We Need and Deserve Better Candidate Statements
FindLaw columnist and U.C., Davis law professor Vikram Amar criticizes the quality of the statements that California candidates submitted for voters to review in deciding how to cast their votes in this past Tuesday's election. California's rule is to require candidates to submit statements of no more than 250 words for the State's official voter information guide. Amar faults candidates for either simply failing to submit such statements, or submitting statements that were ungrammatical, confusing, contradictory and/or uninformative. To illustrate his point, he uses two statements as examples, and points out the serious flaws in each. Friday, November 5, 2010By NEIL BUCHANAN
Do Voters Really Care About Deficits? Why They Don't, and Why They Should Be Much More Worried About What Might Be Done in the Name of Deficit Reduction
In the wake of Tuesday's election, FindLaw columnist, Cornell Visiting Scholar, George Washington law professor, and Economics PhD Neil Buchanan argues that -- while many successful Republican candidates took an anti-deficit stance -- that stance is unlikely to have been the true reason for their victories. Buchanan contends that the deficit is likely standing in for other concerns that voters do care about, such as concerns about unemployment and flagging economic growth. Thus, he suggests that victorious candidates should not be too fearful of deficit spending when in office, if the purpose of the spending is a worthy one, and one that is likely to serve purposes that are closer to voters' hearts and pocketbooks. Thursday, November 4, 2010By ANITA RAMASASTRY
Parenting in Cyberspace? Virtual Visitation and the Court-Ordered Use of Technology Become Realities In Tough Economic Times
FindLaw columnist and U. Washington law professor Anita Ramasastry comments on a new development in family law: the increasing court and/or legislative approval of the use of virtual technologies such as Skype to enable non-custodial parents to have "virtual visitation" with their children. Ramasastry notes that such virtual visitation may increase during the recession, as parents may have no choice but to accept jobs, or move in with family members, in faraway states. She discusses a New York case where a judge ordered virtual visitation due to a recession-driven move; lists the states that currently allow virtual visitation by statute; and describes the kind of analysis courts will likely perform when they consider whether to grant such visitation. Tuesday, November 2, 2010By MICHAEL DORF
The Supreme Court Considers Free Speech and Violent Video Games: A First Step Into the Brave New World of Virtual Reality?
FindLaw columnist and Cornell law professor Michael Dorf comments on the violent-video-game case in which the Supreme Court will hear oral argument tomorrow, November 2d. Dorf explains the two specific questions on which the Court granted review, and the key First Amendment precedents that relate to them -- including one very recent precedent from earlier this year. He also raises larger questions, such as whether video games should be considered to be different from other media for First Amendment purposes, and whether the enhanced virtual reality experiences that we will likely see in the future -- which will create a much more real-seeming virtual reality -- will require a different constitutional analysis than the games at issue here. Monday, November 1, 2010By JOHN DEAN
Miller v. Murkowski v. McAdams: The Tea Party's Marquee Election In Alaska Is An Upset In the Making
FindLaw columnist and former counsel to the president John Dean comments on next week's three-way Alaska Senatorial election. Dean cautions observers that there is a sharp disagreement between the views of the national media and bloggers, on one hand, and the views of in-the-know Alaskans, on the other, as to who will win this race. The candidates, as Dean explains, are Tea-Party-candidate-turned-Republican-nominee Joe Miller; incumbent Republican Senator and write-in candidate Lisa Murkowski; and Democratic Party nominee Scott McAdams. Though the election is a statistical dead heat in the polling, commentators and bloggers tend to favor Miller to win. Dean says the real candidate to watch is actually McAdams -- and explains why. Friday, October 29, 2010By MARCI HAMILTON
The Methodist Church Provides a Rare Example of a Religious Institution that Takes Clergy Sexual Abuse Seriously: Its Recently-Announced Position
FindLaw columnist and Cardozo law professor Marci Hamilton lauds the Methodist church's recently-announced position, supporting the National Organization of Women's view that clergy should be among the categories of professionals who can be charged with a crime for having unlawful sexual relations with those they are advising. Hamilton points to a recent case that illustrates the gravity of the problem that the resolution addresses; explains the Methodist Church's stance in the case; and points to Supreme Court precedents that, she argues, together establish that, despite the separation of church and state, courts have full power to punish proven cases of clergy sexual abuse. Thursday, October 28, 2010By SHERRY COLB
No Buying Soda with Food Stamps? Considering Mayor Bloomberg's New Health Initiative
FindLaw columnist and Cornell law professor Sherry Colb comments on New York City Mayor Michael Bloomberg's request that the USDA allow him to exclude sodas and other sugary drinks from the City's Food Stamp coverage, in an attempt to reduce high levels of obesity and Type 2 Diabetes. The proposed exclusion would be temporary, lasting two years, and its effect would be assessed at the end of that time. Colb contends that some of the most frequently-heard criticisms of Bloomberg's proposed exclusion are unconvincing. Some claim it is unfair that Bloomberg is limiting only Food Stamp recipients, but Colb points to other Bloomberg heath programs that affect all New Yorkers, such as the smoking and restaurant trans fat bans, and notes that a proposed Bloomberg soda tax would have affected every New Yorker. Colb also argues that objections that hold that the Food-Stamp soda exclusion is an unfair limitation on freedom ignore studies that show that sugary drinks are literally addictive. Wednesday, October 27, 2010By JOANNA L. GROSSMAN
Will Gays and Lesbians in Florida Finally Gain the Right to Adopt Children?
FindLaw columnist and Hofstra law professor Joanna Grossman explains the current situation regarding adoption by gays and lesbians in Florida. Grossman describes the Florida statute that categorically bans gays and lesbians from adopting; points out that Florida is the last state to have such a statute; and covers some of the laws relating to gay and lesbian adoptions in other states. Grossman also points out that the empirical, social-scientific evidence regarding children's welfare overwhelmingly favors permitting gay adoption; chronicles the past litigation over the Florida law and its genesis in the 1970s; and comments on the basis for a recent intermediate appellate court decision that struck down Florida's law -- a decision that the state reportedly is not appealing. Tuesday, October 26, 2010By NEIL BUCHANAN
The Public's Distrust of Public Employees: An Old Problem Has Become Much Worse in the Great Recession
FindLaw columnist, Cornell Visiting Scholar, George Washington law professor, and Economics PhD Neil Buchanan argues that Americans' historic distrust of public employees has now become more intense, and even dangerous, in the recession --- but that, on the facts, this distrust is not merited. Buchanan examines the roots of the public's resentment of public employees, and explains how public employees play an important but often ignored role in stabilizing the economy. Buchanan argues that public employees' services can be -- and in some case, have been -- improved by smart management, and he cites examples. He also notes that there are serious downsides to the privatization of government services, citing problems with civilian contractors for the military and with the attempted privatization of tax collection as prime examples. Buchanan contends that we need to stop scapegoating public employees -- who he says are not responsible, for example, for a dearth of public investments, as some claim. Monday, October 25, 2010By VIKRAM DAVID AMAR & ALAN BROWNSTEIN
Does It Matter that the Constitution Never Uses the Phrase "The Separation of Church and State"? The Coons/O'Donnell Debate and the Importance of Constitutional Metaphor
FindLaw columnist Vikram Amar and FindLaw guest columnist Alan Brownstein, both U.C., Davis law professors, comment on an issue related to the famous moment, during the debate between Chris Coons and Christine O'Donnell, when O'Donnell asked, "Where in the Constitution is the separation of Church and State?" Amar and Brownstein note that, in fact, the phrase "separation of Church and State" never does appear in the Constitution -- but the Constitution says that “Congress shall make no law respecting an establishment of religion.” They consider a number of other examples of instances where key constitutional precepts do not actually appear in the text of the document, and comment on the role of constitutional metaphor, as contrasted with that of constitutional text. Friday, October 22, 2010By JULIE HILDEN
The U.S. Court of Appeals for the Second Circuit Wrongly Holds that Public-School Officials Can Constitutionally Prohibit a Student's Attempt to Clear His Name
FindLaw columnist, attorney, and author Julie Hilden comments on a case before the U.S. Court of Appeals of the Second Circuit regarding a student at an East Hampton public high school. As she explains, a three-judge Second Circuit panel dismissed the case on the ground that it was not clearly unconstitutional, under current case law, for a public school's officials to refuse to allow a student to publicly respond to other students' claims that he is a racist, and to put him on home study because of the risk such claims raise for him. Hilden contends that even if the law on this point was not clear enough to impose liability on individual school officials, as the panel held, the panel still should have clarified for future cases that public-school students have a First Amendment right to reply to claims against them that will otherwise cause them to be barred from school due to a fear of disruption and/or violence. Thursday, October 21, 2010By JOANNE MARINER
A Glimpse into the Silicon Heart of the CIA’s Drone Program: Part One in a Two-Part Series of Columns
In the first in a two-part series of columns about drone warfare, FindLaw columnist and human- rights attorney Joanne Mariner explains how a civil case that is being litigated in Superior Court in Boston has revealed information regarding some of the computer systems and software used by the CIA's drone-warfare program. As Mariner explains, the suit raises questions about the reliability of the software at issue, and thus about possible criminal or civil liability for flawed or erroneous drone strikes. As Mariner explains, the CIA is not a party to the Massachusetts case, which pits two computer-industry companies against each other, but its drone program is directly at issue. She describes both sides' allegations and the court's rulings thus far, and she explains why the case raises issues about the reliability of the targeting of CIA drones. Wednesday, October 20, 2010By ANITA RAMASASTRY
Don't Let a Debt Collector "Friend" You on Facebook: The Legal Issues Posed by Internet Debt Collection
FindLaw columnist and U. Washington law professor Anita Ramasastry comments on the ways in which debt collectors are currently employing debtors' Facebook and MySpace pages in order to attempt to either locate the debtors, or to exert pressure on the debtors to force them to pay overdue debts. Ramasastry covers the provisions of the key federal statute relating to consumer debt-collection, and describes the allegations in several cases in which debtors claimed that debt-collection agencies used their social-networking pages to shame them, or to make them fearful. She also notes another, simpler way in which a social-networking posting may not be to a debtor's advantage: If, for instance, a posting announces -- or includes photos of -- expensive purchases, then the debtor may no longer be able to argue that he or she is unable to pay the debt. Finally, Ramasastry explains the key lessons from this new development for both consumers and debt-collection agencies. Tuesday, October 19, 2010By MICHAEL DORF
The Supreme Court Grants Review in a Treaty Power Case
FindLaw columnist and Cornell law professor Michael Dorf comments on a treaty power case that the Supreme Court recently opted to review. As he explains, the case involves the question whether a criminal defendant has standing -- that is, the legal wherewithal -- to argue in court that Congress lacked the constitutional power to pass the law under which she is being prosecuted. Dorf notes that, in this instance, the answer is clear: The U.S. Court of Appeals for the Third Circuit wrongly held that the criminal defendant lacked standing. Dorf points out that, in light of the clarity here, it is puzzling why the Court granted certiorari, rather than summarily reversing the Third Circuit. He also notes that while the Court need not reach the separate treaty-power question that is also raised by the case, it is a fascinating question -- and he explains why. Monday, October 18, 2010By JOHN DEAN
Why The Tea Party Elections On November 2, 2010 Will Ultimately Make No Difference
FindLaw columnist and former counsel to the president John Dean comments on the influence of the new "Tea Party," the candidates of which are expected to prevail in some of the mid-term Congressional elections that will occur on November 2d. Dean contends that, while the Tea Party may indeed win some Congressional seats, it is unlikely -- based on the past fates of other populist movement in America -- that the Tea Party will make much of a difference in the long run. Dean describes the Tea Party movement, its accomplishments and failures, and its degree of popular support, and describes the way in which American populist movements tend to fizzle out. Friday, October 15, 2010By MARCI HAMILTON
The New Wave of Extreme State Religious Freedom Restoration Act (RFRA) Legislation: Why It's Dangerous
FindLaw columnist and Cardozo law professor Marci Hamilton comments on the history of federal and state Religious Freedom Restoration Acts (RFRAs), and on a new push in three states to seek -- through statutes or ballot initiatives -- the passage of measures that Hamilton calls "extreme RFRAs" because of the nature of the legal standards they contain. As Hamilton explains, the original RFRAs required the government to provide special justification for the application of laws that impose a substantial burden on religious exercise. The new laws, which she deems "extreme RFRAs," would also require special justification from the government if religious exercise is affected, but only "a burden" -- not a special burden -- would need to be shown. Hamilton expresses concern that RFRAs -- and especially "extreme RFRAs" -- would hamper legitimate law-enforcement efforts, such as investigations or prosecutions of clergy child abuse. In addition, she describes the new RFRA efforts in Louisiana, Colorado and North Dakota. Thursday, October 14, 2010By SHERRY COLB
The Criminalization of HIV Transmission: Is It Just?
FindLaw columnist and Cornell law professor Sherry Colb comments on when, if ever, HIV transmission should be criminalized. This controversial topic has also been the subject of the focus of the American Bar Association’s AIDS Coordinating Committee, and will soon be the subject of a hearing at the George Washington Elliott School of International Affairs, which will focus on the implications of the criminalization issue for HIV prevention. Colb considers the rationales for criminalization, and also its shortcomings and risks. In addition, she parallels the criminalization of HIV transmission with the imposition of sanctions upon alcohol- and drug-addicted pregnant women. Ultimately, she suggests that this issue is best approached from a public-health, not a criminal-justice, standpoint. Wednesday, October 13, 2010By AZIZ RANA
Relatively Open Borders -- Not Harsh Immigration Restrictions -- Follow the True American Tradition
FindLaw guest columnist and Cornell law professor Aziz Rana counters recent claims -- made by Tea Party adherents and others -- that it is an American tradition to sharply limit immigration. To the contrary, Rana explains, early America featured liberal policies and practices relating to immigrants, such as noncitizen voting and noncitizen access to Western federal land. Moreover, he points out, post-Civil-War America featured laws that allowed immigrants to vote before naturalization -- and that approach, in turn, went back to the Framers and their views on the frontier territories, as well as to policy decisions in a number of states. Tuesday, October 12, 2010By VIKRAM DAVID AMAR and ALAN BROWNSTEIN
The Supreme Court Case of Snyder v. Phelps: Testing America's Commitment to Protecting Even the Speech We Most Condemn
FindLaw columnist Vikram Amar and FindLaw guest columnist Alan Brownstein, both U.C., Davis law professors, comment on one of this Supreme Court Term's leading First Amendment cases. The case asks whether a damages award for intentional infliction of emotional distress and invasion of privacy can constitutionally be based upon the conduct of sign-holding picketers at a military funeral. To answer the question, Amar and Brownstein look at the famous case where American Nazis were allowed to march in a town with a significant Jewish population, including Holocaust survivors; cases that recognize the state's interest in protecting vulnerable individuals; cases that frown at one party's use of the other as an instrument to convey a message with which the second party does not agree; and the compelled speech doctrine. Friday, October 8, 2010By WALTER WEBER
Snyder v. Phelps: Testing the Free Speech Clause in the Westboro Baptist Funeral Picketing Case
FindLaw guest columnist Walter M. Weber, who is Senior Litigation Counsel at the American Center for Law and Justice, comments on one of this Supreme Court Term's key First Amendment cases. As Weber explains, the case involves the Reverend Fred Phelps and members of his Westboro Baptist Church, who have made it their practice to picket near the funerals of American Soldiers with signs conveying anti-gay and anti-Catholic messages and displaying messages such as "Thank God for Dead Soldiers” and “God Hates the USA/Thank God for 911.” Understandably, the picketing has upset the soldiers' families and other mourners-- but can it constitutionally be forbidden? Weber explains the background of the litigation, comments on the decision by the U.S. Court of Appeals for the Fourth Circuit in the case, covers the constitutional doctrines that will likely influence the Court's decision, and assesses the Justices' likely views based on the recent oral argument in the case. Friday, October 8, 2010By NEIL BUCHANAN
What Are We Doing Today to Hasten the Next Financial Crisis? The Ticking Time Bomb of Partial and Ill-Conceived Financial Market Reform
FindLaw columnist, Cornell Visiting Scholar, George Washington law professor, and Economics PhD Neil Buchanan takes issue with the financial reform that has thus far been enacted in an attempt to prevent future U.S. recessions. Buchanan describes the regulatory reform that responded to the economic crisis that began in 2008; argues that this was the worst possible time to trust regulators, yet that is exactly what we did in the Dodd-Frank legislation; and explains why he is skeptical about substantial further reform occurring before a new financial crisis occurs in the future. Thursday, October 7, 2010By MICHAEL DORF
Some Possible Hidden Complications of a Senate Proposal to Permit Retired Justices to Pinch-Hit for Their Recused Colleagues
FindLaw columnist and Cornell law professor Michael Dorf comments on Senator Patrick Leahy's proposal to allow retired Supreme Court Justices to come back to serve on the Court on a case-by-case basis, whenever a case would otherwise be decided by eight Justices, leading to the chance of a 4-4 split. (Such situations occur when a Justice recuses herself, and Justice Elena Kagan is likely to have to frequently recuse herself this Term because she previously served as Solicitor General of the United States, arguing cases before the Court.) Dorf contends that Leahy's idea is a good one, but points out that it carries some risks. Among them are the risks that the decision as to whether a retired justice would be called on, and the question of whom that retired justice would be, could both be ideologically-fraught. However, as Dorf explains, those risks could be addressed with the right system. Wednesday, October 6, 2010By SONIA K. KATYAL
A Dream Deferred: Disturbing Recent Setbacks for LGBT Rights, and an Older Court Victory that Provides Hope
FindLaw guest columnist and Fordham law professor Sonia Katyal comments on recent developments regarding LGBT rights, with a strong emphasis on the issue of anti-LGBT bullying, which has recently led to a spate of tragic suicides by young people who had been mercilessly bullied at school. Katyal describes in detail a key precedent from the U.S. Court of Appeals for the Seventh Circuit that forced schools to take anti-LGBT bullying seriously. However, she sees a new threat to anti-bullying measures in the form of "neutrality" policies touted by religious groups that purport to oppose all bullying, but forbid mention of anti-LGBT bullying in particular, even as that bullying continues to cost young lives. Tuesday, October 5, 2010By JOANNA GROSSMAN and LAWRENCE M. FRIEDMAN
"Sister Wives": Will Reality Show Stars Face Prosecution for Polygamy in Utah?
FindLaw columnist and Hofstra law professor Joanna Grossman, and FindLaw guest columnist and Stanford law professor Lawrence Friedman, comment on the legal issues triggered by the new TLC reality-TV show "Sister Wives." The show concerns a Utah family that consists of a man, his three wives, and their twelve children. The family is now being investigated for the crime of felony bigamy. Grossman and Friedman discuss the history of the practice of, and the law regarding, polygamy in the United States, and consider whether the family has committed a crime. They emphasize the difference, in this context, between religious and civil marriage. In addition, they note that this situation poses the purest form of the bigamy question -- as there is no issue regarding sex or marriage with underage girls, or lack of consent, and the family appears to have the resources needed to support its many children without help from the state. Monday, October 4, 2010By JOHN W. DEAN
A Reader's Guide To The Recent Correction Of A Terrible Nixon Injustice
FindLaw columnist and former counsel to the president John Dean comments on a Nixon-era travesty of justice that may now be remedied by the Senate. As Dean explains, Air Force General John Lavelle was accused by then-President Nixon of conducting unauthorized bombings during the Vietnam War. The accusation resulted in Lavelle's being discharged and vilified. In fact, Dean explains, the charges against Lavelle (who has since passed away) were entirely false -- as has been proven by the Nixon tapes, and by the diligent work of attorney Patrick Casey and his father, retired Air Force Lieutenant General Aloysius G. Casey. President Obama has requested that the Senate restore General Lavelle's full rank and honor. Dean offers readers a summary and analysis of the recent facts and news coverage relating to Lavelle. Moreover, Dean urges Senate Republicans to put partisanship aside and vote to grant President Obama's request -- especially since, although General Lavelle has passed away, his family members, who have consistently defended him, still await his vindication. Friday, October 1, 2010By MARCI HAMILTON
The Obama Administration's Approach to the Religious Land Use and Institutionalized Persons Act (RLUIPA): Not Very Different From the Bush and Clinton Administrations'
FindLaw columnist and Cardozo law professor Marci Hamilton argues that -- although a key speech given before President Obama was elected indicated that he took the Constitution's church/state separation seriously -- Obama's actions while in office have proved that it isn't so. Focusing on enforcement of the Religious Land Use and Institutionalized Persons Act (RLUIPA) and other signs of a president's attitude toward drawing the church/state line, Hamilton assesses the Clinton, Bush, and Obama Administrations on this score, and finds striking similarities among the approaches of all three. She draws, in part, on the recent report issued by the Department of Justice marking the ten-year anniversary of RLUIPA. Thursday, September 30, 2010By ANITA RAMASASTRY
Facebook and MySpace Postings in Court: In a Lawsuit, Privacy Settings May Not Matter
FindLaw columnist and U. Washington law professor Anita Ramasastry surveys and comments on recent decisions regarding whether copies of Facebook and MySpace postings must be produced in discovery in a lawsuit. Notably, such discovery requests have often been made in personal-injury suits, where defendants claimed the postings showed that plaintiffs were not as impaired by an accident as they claimed. Ramasastry contrasts two recent decisions from New York and California, and offers thoughts on a possible middle-ground solution -- one that could acknowledge the reality that, when privacy settings are used, postings are much less private than, say, one-to-one email messages, but much more private than, say, a blog posting that anyone can read. Wednesday, September 29, 2010By JULIE HILDEN
The French Criminal-Defamation Conviction of Google and Its CEO: Why It Wouldn't Happen in America
FindLaw columnist, attorney, and author Julie Hilden comments on the controversial French criminal-defamation action and damages award against Google and its CEO Eric Schmidt. As Hilden explains, the plaintiff in the action -- known as "Mr. X" -- argues that Google Suggest libelled him by suggesting that Google users who typed in his name complete their searches with words such as "rapist" that other users who searched on Mr. X had frequently used. Mr. X has been acquitted of rape, and convicted of corruption of a minor, but he is appealing his conviction. Hilden explains why, under United States libel law, which is heavily influenced by the First Amendment, Mr. X's libel case would have little to no chance of succeeding. She also comments on another U.S.-law protection Google could invoke, had this case been brought here: the statutory immunity for sites that host third-party content, but play no part in developing that content. Tuesday, September 28, 2010By JULIE HILDEN
Is Powell's Bookstore a Criminal Pornographer? A Panel of the U.S. Court of Appeals for the Ninth Circuit Rightly Says No
FindLaw columnist, attorney, and author Julie Hilden comments on a recent decision by a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit, striking down two Oregon statutes that had criminalized the provision of sexually-explicit material to minors. Hilden argues that, especially since the statutes flouted clear Supreme Court First Amendment precedent, the Ninth Circuit was right to decline Oregon's invitation to the court to rewrite the statutes to put them in compliance with the First Amendment. She also explains why even the highly-respected Portland bookstore Powell's Books became a party in the suit. Monday, September 27, 2010By VIKRAM DAVID AMAR and ALAN BROWNSTEIN
Do the Ballot Sponsors of California's Same-Sex Marriage Ban, Proposition 8, Have Standing to Defend It In Federal Court? Part Two in a Series
In the second in a series of columns on the appeal regarding the California anti-same-sex- marriage initiative, Proposition 8, FindLaw columnist Vikram Amar and FindLaw guest columnist Alan Brownstein, both U.C., Davis law professors, continue their analysis as to whether Proposition 8's sponsors had standing -- that is, the legal right -- to defend the measure in court. Here, Amar and Brownstein focus especially on the differences between legislator standing and initiative-sponsor standing, explaining why the latter turns out to be much more problematic than the former. They also suggest that a clear-statement rule should be employed in cases where initiative sponsors are claimed to have standing to defend initiatives; unless clearly appointed, sponsors should not have the power to defend. Friday, September 24, 2010By ANITA RAMASASTRY
When a Newspaper Is Available on the Internet, Where Is It "Published" for Legal Purposes? A New Jersey Court Offers an Outmoded Answer
FindLaw columnist and U. Washington law professor Anita Ramasastry explores an interesting new question for the Internet Age: Where is a newspaper that publishes its articles online located, for legal purposes? Ramasastry focuses on a New Jersey case in which a South Jersey county chose to publish its legally-required notices (such as a notice of a court-ordered sale of real estate) in the Philadelphia Inquirer, which has a strong South Jersey readership. The county's local paper sued, contending that the Inquirer is not published in New Jersey as the law requires; but the county responded that the Inquirer is published in New Jersey because it can be read online in New Jersey. The court ruled against the county, but Ramasastry argues that it's high time that -- either by statute or judicial decision -- New Jersey and other states update their definition of the place of publication of a newspaper to take Internet access to the paper's articles into account. Thursday, September 23, 2010By JOANNE MARINER
When Machines Kill
FindLaw columnist and human-rights attorney Joanne Mariner comments on the international legal standards that relate to assessing governments' reliance on unmanned weapons systems. Mariner notes that there may well be a need for new standards in this area, to address weaponized robots and drones. Such standards, she explains, might regulate the development, proliferation, and use of unmanned weapons systems, or might even ban robotic weapons if they are deemed "autonomous." Mariner notes that governments have been using unmanned weapons -- especially armed drones -- more and more often over the past decade, making the need for a re-evaluation of the relevant law all the more urgent. She covers some of the arguments raised at an ongoing Berlin conference on the subject that she is attending -- including the concern that war without troop casualties may seem much more attractive to the warmakers. Interestingly, some at the conference favor a clear rule that "Machines should not be allowed to make the decision to kill people." Wednesday, September 22, 2010By MICHAEL DORF
Arlen Specter's Swan Song: Mandating Cameras in the Supreme Court
FindLaw columnist and Cornell law professor Michael Dorf assesses Senator Arlen Specter's proposal -- as his tenure in the Senate winds down -- that cameras be allowed in the Supreme Court. Dorf notes that, because the Justices have the power to allow cameras themselves, but have chosen not to do so, the question here is not just whether cameras in the Court are desirable; it is also whether Congress can force cameras upon a Court that doesn't want them. Dorf summarizes the Justices' worries about having cameras in the Court, and summarizes a Supreme Court precedent that is relevant to the matter. He concludes that while the arguments for cameras in the Court are much stronger than the contrary arguments, the decision should be up to the Justices, and Congress ought to refrain from forcing the issue. Monday, September 20, 2010By JOHN DEAN
Releasing Nixon's Grand Jury Testimony: It Could Change History
FindLaw columnist and former counsel to the president John Dean comments on the Public Citizen Litigation Group lawsuit -- brought on behalf of a number of prominent American historians and archivists -- seeking the release of records of former president Richard Nixon's 1975 grand-jury testimony. Dean explains the context of the testimony and its historic importance; describes the law of grand-jury secrecy; and provides and applies the nine factors of the test that the court will apply in determining whether the testimony should be released in light of its historical importance and the other surrounding facts. Friday, September 17, 2010By NEIL BUCHANAN
Extending the Bush Tax Rates for High-Income Earners: The Weakness of the Economic Arguments Explains the Ridiculous Political Posturing
FindLaw columnist, Cornell Visiting Scholar, George Washington law professor, and Economics PhD Neil Buchanan considers and rebuts the central arguments in favor of extending the Bush tax cuts for high earners. In particular, Buchanan contends that -- contrary to arguments that were made recently in a letter to Speaker Nancy Pelosi from conservative and swing-district Democrats -- extending the cuts will not (1) provide businesses with greater certainty; (2) alleviate the recession; (3) encourage the rich to create more wealth; or (4) help small businesses. Thursday, September 16, 2010By SHERRY COLB
D.C. Circuit Holds that Month-Long Police GPS Monitoring Triggers Fourth Amendment
FindLaw columnist and Cornell law professor Sherry Colb analyzes a recent decision by the U.S. Court of Appeals for the D.C. Circuit regarding the constitutionality of allowing the police to attach GPS devices to suspects' cars, and then to use the devices to monitor the suspects' movements. (In the case at issue, the monitoring went on for a month.) More specifically, the Court had to resolve whether the Fourth Amendment allows the police to attach and use GPS devices, or whether their doing so falls afoul of the Amendment's prohibition on unreasonable searches and seizures. Colb covers the difference between one-time and long-term monitoring; discusses the relevant precedents, including a key U.S. Supreme Court precedent on phone-booth privacy; and explains why the GPS-monitoring issue is also likely to end up before the Court. Colb also comments on how the Court ought to rule when and if such a case does come before it. Wednesday, September 15, 2010By JOANNA GROSSMAN and LAWRENCE M. FRIEDMAN
"The Kids Are Alright": Family Life and Family Law on the Big Screen
FindLaw columnist and Hofstra law professor Joanna Grossman and FindLaw guest columnist, Stanford law professor, and noted historian Lawrence Friedman comment on the legal issues implicated by the recent film "The Kids Are Alright." In the film, a same-sex couple find their relationship threatened when their children find out the identity of the sperm donor who is their biological father. Grossman and Friedman address the interesting question of whether -- under the law in California, where the family in the movie lives -- the events in the film are realistic. Could a same-sex couple create a family with a sperm donor, despite same-sex marriage's not being legal in California? Could the couple's children find out their sperm-donor father's identity? Grossman and Friedman comment on these and other questions that are raised in comparing the film to reality. Tuesday, September 14, 2010By JOANNA GROSSMAN
No Gay Divorcees in Texas: An Appellate Court Refuses to Dissolve a Same-Sex Marriage
FindLaw columnist and Hofstra law professor Joanna Grossman comments on a Texas ruling that addresses the flip side of gay marriage: gay divorce. As Grossman explains, a Texas appellate court reversed a Texas trial court's grant of a divorce to a gay couple who had been legally married in Massachusetts, and then had become residents of Texas. The court's logic was that to grant a same-sex divorce, a state needs to first -- though very briefly - recognize a same-sex marriage, and that is something that Texas refuses to do. In addition to covering the Texas case, Grossman also comments on the national legal landscape regarding gay divorce -- which, she notes, still features significant uncertainty. Monday, September 13, 2010By MARCI HAMILTON
The Ongoing Controversy Over the Planned Mosque Near Ground Zero: How It Reveals Important Fault Lines in Americans' Thinking About Religion
FindLaw columnist and Cardozo law professor Marci Hamilton comments on the larger issues raised by the ongoing controversy about the planned mosque in Lower Manhattan. Hamilton argues that the mosque controversy illustrates three fault lines in the way Americans think about religion: (1) The tendency to oversimplify issues of religious identity, suggesting that there is only one set of beliefs that can characterize each faith; (2) a tendency of religious organizations and their lobbyists to put self-interest above the public interest; (3) a failure to draw a clear line line between constitutionally-protected religious beliefs and unprotected illegal actions that are done in the name of religion, or that are done within a religious institution. To the contrary, Hamilton contends, a connection to religion is too often used as a way to avoid vigilance regarding illegal acts, as the Catholic Church child-sex-abuse scandal illustrates. Friday, September 10, 2010By MICHAEL DORF
Are Hunters a Constitutionally-Protected Group? A New York Judge Says Yes
FindLaw columnist and Cornell law professor Michael Dorf comments on a recent decision by a New York State trial judge. As Dorf explains, the decision was based on the U.S. Supreme Court case of Batson v. Kentucky, which held that when trial attorneys use their peremptory challenges to exclude potential jurors, they cannot do so in a discriminatory way. It has long been clear that Batson applies when peremptory challenges are based on race or sex, but in this case, as Dorf notes, the judge ruled that Batson applied because the attorney at issue had been excluding hunters from the jury. Dorf contends that, while this extension of Batson may seem far-fetched, the judge's ruling may actually have been the correct one, for hunters are exercising their constitutional right to bear arms. Thursday, September 9, 2010By VIKRAM ARAM and ALAN BROWNSTEIN
Understanding "Standing" in the Proposition 8 California Same-Sex Marriage Appeal: Part One in a Series
In the first of a series of columns on the Proposition 8 appeal, FindLaw columnist Vikram Amar and FindLaw guest columnist Alan Brownstein, both U.C., Davis law professors, comment on the crucial issue of whether Proposition 8's sponsors had standing -- that is, the legal right -- to defend the measure in court. Amar and Brownstein focus on the key U.S. Supreme Court case that discusses the standing of initiative sponsors and what that precedent may mean for the standing issue in the Proposition 8 case. They also consider the specific arguments made by the Proposition 8 sponsors as bases for their standing, and the arguments made by the City of San Francisco (which is among the plaintiffs challenging Proposition 8) against the sponsors' having standing. Wednesday, September 8, 2010By JOHN DEAN
What Will Become of Dick Cheney's Vice Presidential Records?
FindLaw columnist and former counsel to the president John Dean comments on the ongoing controversy over the production of the records of former Vice President Dick Cheney. As Dean explains, Cheney never sent his records to the George W. Bush presidential-records archive, and has fought in court against the records' disclosure. Dean explains why the litigation -- although it established that the Cheney records should, in theory, have been turned over -- nevertheless failed to result in their actually being turned over. Dean also notes that while Congress is currently considering amending the presidential-records law, it is not considering ways to remedy the very shortcomings that have allowed the Cheney records situation to persist. Friday, September 3, 2010By NEIL BUCHANAN
Scaring the Kids and Grandkids: Tactics to Scare Younger Americans Into Supporting Unnecessary Changes in Social Security
FindLaw columnist, Cornell Visiting Scholar, George Washington law professor, and Economics PhD Neil Buchanan comments on the current controversy over whether to alter Social Security. Buchanan contends that there is no need for Social Security to be an issue at all right now, let alone a major issue. Among other points, he counters the frequently-heard arguments that it would be better to have each generation pay for its own retirement; and that we should be troubled that Social Security is merely a set of IOUs. Buchanan concludes that attempts to scare people in their 20s and 30s into thinking the Social Security system is broken are ill-grounded, and that we would do best to focus on other, more genuine policy priorities. Thursday, September 2, 2010By SHERRY COLB
Evaluating the Eighth Amendment's Ban on Only Cruel and Unusual Punishments
FindLaw columnist and Cornell law professor Sherry Colb notes that, while it's evident why the Constitution might want to ban cruel punishments, it is less plain why it bans punishments that are "cruel and unusual." Why should it matter if a punishment is unusual? As a case study of a punishment that is both cruel and unusual, Colb focuses on a recent stoning in Afghanistan, of a couple who had done nothing but marry without their parents' blessing. She also considers a U.S. Supreme Court case involving a convict who was tied to a hitching post for hours in the hot sun. In examining why the Constitution is troubled by cruel AND unusual punishments, Colb considers whether targeting unusual punishments may be a way to constrain judicial discretion by compelling the judge to refer to community norms. In addition, she contends that the Constitution's ban may not be sufficient -- since in some cases, society can become acclimated to, and treat as "usual," conduct that, on closer examination, may be cruel. In other words, Colb suggests, the very fact that a kind of conduct is usual in American society may mask its cruelty -- citing factory farming as an example. Yet in other instances, Colb observes, when society increasingly becomes more enlightened over time, then the unusualness of a punishment may indeed be a good proxy for whether it should be permissible. Wednesday, September 1, 2010By JOANNE MARINER
Targeted Killings Go To Court
FindLaw columnist and human rights attorney Joanne Mariner comments on a suit filed yesterday, August 30, by the ACLU and the Center for Constitutional Rights. As Mariner explains, the suit, Al-Aulaqi v. Obama, seeks to limit the U.S.'s power to kill American citizens abroad. Anwar al-Aulaqi -- an American citizen hiding in Yemen, and alleged to be an al Qaeda operative -- is reportedly on a short list of American citizens whom U.S. military forces have been authorized to kill. In addition, reports state that he recently became the first U.S. citizen to be place on a secret CIA kill list, and that he has already been targeted by at least one U.S. airstrike in Yemen. Yet he has never been indicted in the U.S., and the government's evidence against him remains secret. The plaintiff in the suit is Anwar's father, Nasser al-Aulaqi, although his standing to sue may be in doubt. Mariner explains the suit's objectives, and why it is both novel and important. Tuesday, August 31, 2010By NEIL BUCHANAN
Discipline for Government Spending: Mr. Boehner Offers the Germ of a Promising Approach to Budget Reform
FindLaw columnist, Cornell Visiting Scholar, George Washington law professor, and Economics PhD Neil Buchanan comments on a recent remark by House Minority Leader John Boehner setting forth a proposed test for federal budget items: whether an item is so vital that we are willing to ask our children and grandchildren to pay for it. Buchanan contends that Boehner's test has a good idea at its core -- the idea that some budget items are worth borrowing to finance, though others are not -- but that the test itself is the wrong one to select. Buchanan also argues that Boehner has been wrong in suggesting, on other occasions, that federal borrowing is inherently a bad thing. Finally, Buchanan suggests that an independent board's capital-budgeting system could importantly improve the way in which our government spends and borrows. Friday, August 27, 2010By JULIE HILDEN
Future Conflict Over Defamation on Facebook: How It Might Differ from Traditional Defamation Litigation, Part Two in a Two-Part Series of Columns
In Part Two in a two-part series of columns on defamation and Facebook, FindLaw columnist, attorney, and author Julie Hilden comments on how defamation disputes based on Facebook posts might differ from defamation cases based on statements made in print or online media. (Part One in the series addressed a claim of Facebook defamation that was dismissed by a New York state court). Hilden points to Facebook's brief character limits and its individually-identifiable audience members as factors that distinguish it from print and online media for libel-law purposes. She also suggests that Facebook might consider asking users to waive the right to sue for Facebook defamation, in exchange for the right to contact the very same Facebook audience that initially heard an allegedly defamatory statement, and to respond to that same audience with a rebuttal. Tuesday, August 24, 2010By MICHAEL C. DORF
Four Secrets to Law School Success
FindLaw columnist and Cornell law professor Michael Dorf offers law students four key pieces of advice that will help them in succeeding in law school. Building upon his prior columns regarding the first-year curriculum, and on how to think like a lawyer, Dorf now focuses upon some important distinctions that law students should keep in mind. Among these are the distinctions between hard and easy legal questions; between good and bad confusion when it comes to studying the law; and between a deconstructive classroom discussion, and the constructive process of crafting an exam answer. Dorf also advises students to have fun in law school, both inside and outside the classroom. Monday, August 23, 2010By JOHN DEAN
The Blagojevich Verdict: A Case Too Complex and Confusing
FindLaw columnist and former counsel to the president John Dean comments on the result in the federal trial of former Illinois Governor Rod Blagojevich and his brother, Robert: Jurors hung on all but one minor charge, which will carry only a short sentence. Based on his analysis of jurors' post-trial comments and his discussions with a number of former federal prosecutors, Dean contends that the prosecution botched the case by presenting it in a way that jurors found confusing and overly complex. Another strategic misstep, Dean notes, may have been indicting the brother, and not Blagojevich's wife. The prosecution was led by U.S. Attorney Patrick Fitzgerald -- also known for prosecuting Scooter Libby for the leak of Valerie Plame Wilson's identity as a CIA agent. Next time, Dean and his sources suggest, Fitzgerald may want to sharply narrow his case -- proceeding as if with a rifle, not a cannon. Friday, August 20, 2010By MARCI HAMILTON
The Mosque Controversy Continues: How a Texas Case Regarding a Sikh Temple Illuminates the Issues
FindLaw columnist and Cardozo law professor Marci Hamilton comments on the ongoing controversy about plans to build a mosque in Lower Manhattan, near Ground Zero. She parallels those who would stop the mosque due to "sensitivities" to those who say that depictions of Muhammad should not be published due to "sensitivities." In each case, Hamilton argues, the law is clear: First Amendment speech and religion rights should win the day. Hamilton also contrasts the controversy in New York to one in Texas -- where a proposal for a religious building was denied, but apparently the denial was based on generally-applicable, non-discriminatory grounds. Thursday, August 19, 2010By SHERRY COLB
How The Supreme Court May Have Quietly Undermined the Constitutional Requirement of "Probable Cause"
FindLaw columnist and Cornell law professor Sherry Colb focuses on an unusual per curiam opinion from the last Supreme Court Term that she argues may have quietly changed the Court's Fourth Amendment doctrine -- in particular, its doctrine regarding the "probable cause" requirement. Colb begins by explaining the Court's practice with respect to per curiam opinions, which are not signed by any Justice, are not preceded by briefing on the merits, and are not the subject of oral argument. Colb explains why the Justices sometimes issue per curiam opinions, but contends that the Fourth Amendment case at issue, Michigan v. Fisher, was a poor candidate for per curiam treatment, because it is far more significant and potentially wide-ranging in its doctrinal effects than per curiam opinions usually are. Wednesday, August 18, 2010By JULIE HILDEN
Defamation on Facebook: Why a New York Court Dismissed a Recent Suit, Part One in a Two-Part Series of Columns
In Part One in a two-part series of columns on defamation and Facebook, FindLaw columnist, attorney, and author Julie Hilden comments on the dismissal, by a New York state-court judge, of a defamation suit that was based on statements posted to a private group on Facebook (that is, a small group to which two member-administrators controlled access, where postings could only be read by group members). Hilden argues that the judge was right in dismissing the suit, but notes that certain aspects of this particular case made it especially easy for the judge to resolve, and that future defendants in Facebook-based defamation suits may not be as lucky. Tuesday, August 17, 2010By VIKRAM DAVID AMAR
California's Budget Crisis and Its Prop 8 Litigation: What They Reveal About the State's Divided Executive
FindLaw columnist and U.C., Davis law professor Vikram Amar offers an interesting look at the ins and outs of California's divided executive, as it has affected two important issues for the state: the ongoing budget crisis, and the litigation regarding the anti-gay-marriage Proposition 8, which was recently struck down by a federal district judge. Amar focuses, in particular, on the role of California's Controller, and that of its Attorney General -- noting that both have recently broken with Governor Schwarzenegger on various issues. Amar contends that, generally, Attorney General Jerry Brown has made a much better case for his breaking with the Governor than Controller John Chiang has. In particular, Amar explains why the Controller's three main arguments in favor of his independence are unpersuasive. Amar also reflects, more generally, on whether it is a good thing for states' Attorneys General to be independent from their Governors, and compares state Attorney General practice to Solicitor General practice within the federal government. Monday, August 16, 2010By VIKRAM DAVID AMAR
Musings on Some Procedural, But Potentially Momentous, Aspects of the Proposition 8 Case As it Goes to the Ninth Circuit
FindLaw columnist and U.C., Davis law professor Vikram Amar comments on two procedural aspects of the California federal-court litigation over the anti-gay-marriage Proposition 8. The first issue, as Amar explains, is whether the order Judge Walker issued -- banning the state from enforcing Proposition 8 against any same-sex couples -- was overly broad. Arguably, the order should only have applied to the couples who were plaintiffs in the suit, with state officials having discretion as to whether to apply the principle behind the ruling more broadly. The second issue is whether the Proposition 8 sponsors -- the only parties to defend the measure at trial -- were even properly parties to the suit in the first place, in light of precedent strongly suggesting otherwise. Friday, August 13, 2010By NEIL BUCHANAN
More Good News on Social Security: Reality Collides With Calls to "Fix" the System Sooner Rather than Later
FindLaw columnist, Cornell Visiting Scholar, George Washington law professor, and Economics PhD Neil Buchanan argues -- in the wake of the release of last week's annual Trustees' report on Social Security -- that claims that the Social Security system is in trouble, and that there will be nothing left for future generations, are strikingly off-base. In fact, Buchanan concludes that the nation's retirement system is fundamentally healthy. Buchanan explains the key findings in the Trustees' report; cites political motivations as part of the reason for Social Security doomsaying; and explains why there is a clear consensus that future American workers, thanks to additional knowledge and improved technology, will be more productive and will raise living standards for both themselves and retirees. He also compares several predictions about Social Security's future, and concludes that the system is best left alone, for minor tinkering would likely open the way to an unneeded and even harmful re-vamp. Thursday, August 12, 2010By MICHAEL DORF
A Federal Judge Strikes Down California's Proposition 8: Will the Ruling Ultimately Advance or Retard Civil Rights for LGBT Americans?
FindLaw columnist and Cornell law professor Michael Dorf comments on the recent, headline-making decision by U.S. District Judge Vaughn Walker to strike down California's anti-gay-marriage Proposition 8 -- on the ground that the Proposition violates the U.S. Constitution in two separate respects. Dorf discusses what the ruling's larger implications may be; considers whether the U.S. Supreme Court is ready to recognize a same-sex marriage right; assesses the risk of backlash from the decision; and analyzes whether the "Society is not ready" argument has any relevance to the legal issues the case raised. In addition, Dorf questions whether Prop 8's sponsors even had the legal right to be its sole defenders in federal court in the first place. Monday, August 9, 2010By CARL TOBIAS
Filling the Lower Federal Court Vacancies -- Especially the District of Delaware's
FindLaw guest columnist and U. Richmond law professor Carl Tobias comments on the large number of vacancies that persist on both the federal appellate and federal district courts. In particular, Tobias focuses on the situation in the District of Delaware, which he contends is of special importance in light of its influence on corporate law, patent law, and complex litigation. Tobias provides striking statistics regarding vacancies, and urges the Senate to ensure that the lower federal courts soon enjoy a full complement of judges. Monday, August 9, 2010By JOHN DEAN
How Our Decider-in-Chief Decides: Decisionmaking and the Obama Presidency
FindLaw columnist and former counsel to the president John Dean draws on work by journalist Jonathan Alter to both characterize President Obama's approach to decision-making, and contrast that approach with those taken by other presidents such as George W. Bush and John F. Kennedy, and by former Presidential candidate John McCain. Dean contends that decision-making style is vital, as nothing is more important in a presidency than decision-making. He characterizes President George W. Bush's decision-making as messianic and intuitive, while characterizing President Obama's decision-making as cool and focused. Dean also argues that the criticism that Obama dithers in his decision-making is completely off the mark -- but wonders if the President may be a bit too Spock-like in his approach. Friday, August 6, 2010By MARCI HAMILTON
The Wrong-Headed Furor over the Planned Mosque at Ground Zero: Mistaking a War on Radical Islamicism for a War on All Muslims
FindLaw columnist and Cardozo law professor Marci Hamilton comments on the controversy regarding the plan to build a mosque in Lower Manhattan, near Ground Zero. Drawing a parallel to the Supreme Court's Korematsu case, Hamilton suggests that the mosque controversy shows that we have lost sights of the values and rights for which we go to war -- such as the right to believe as one wishes without government censorship or penalty, and the refusal to discriminate based on religion, national origin, or ethnicity. Hamilton also points out an irony: Some who have strongly supported the Religious Land-Use and Institutionalized Persons Act (RLUIPA), which gives special land-use rights to religious landowners, might dislike the way RLUIPA could be applied in the New York mosque controversy. Thursday, August 5, 2010By SHERRY COLB
The Jerusalem "Rape by Deception" Case: Can a Lie Transform Consensual Sex Into Rape?
FindLaw columnist and Cornell law professor Sherry Colb comments on the notorious recent Jerusalem news story about an act that some have called "rape by deception." In brief, the facts appear to be as follows: (1) a man falsely told a Jewish woman that he was single, Jewish, and interested in a serious relationship; (2) in fact, the man was (and is) married (with two children), and is a Palestinian Arab; (3) the two had sex; and (4) the woman says that she never would have consented to sex, had she known the truth about the man. Colb analyzes a number of hypothetical situations to determine when, exactly, a lie told prior to a sex act, and the sex act induced by the lie may together properly be equated with rape. She also explains how -- if the sequence of events that occurred in Jerusalem had instead occurred in the U.S. -- American criminal law would have characterized the man's deception. Wednesday, August 4, 2010By JOANNA GROSSMAN
The Enforceability of Postnuptial Agreements: Massachusetts Weighs In, Part Two in a Two-Part Series of Columns on Postnuptial Agreements
FindLaw columnist and Hofstra law professor Joanna Grossman continues her two-part series on postnuptial agreements -- agreements that are made after a couple is married regarding how assets will be split if they get divorced (not to be confused with separation agreements). In this column, Grossman covers the general legal landscape -- both historical and contemporary -- regarding such agreements, tracing the history back even to the time when a married woman was not considered a legal person separate from her husband. Tuesday, August 3, 2010By JOANNA GROSSMAN
The Enforceability of Postnuptial Agreements: Massachusetts Weighs In, Part One in a Two-Part Series of Columns on Postnuptial Agreements
In Part One of a two-part series of columns, FindLaw columnist and Hofstra law professor Joanna Grossman comments on a recent decision by Massachusetts' Supreme Judicial Court (SJC), the highest court in the state, regarding the enforceability of postnuptial agreements -- that is, agreements that are made after a couple is married regarding how assets will be split if they get divorced (not to be confused with separation agreements). Grossman covers the agreement made by the couple who were parties to the suit; the reasons for the SJC's decision that postnuptial agreements are valid in Massachusetts; and the five-factor test the SJC used. She also explains why the issue of the validity of postnuptial agreements in Massachusetts had not been resolved earlier. Monday, August 2, 2010By ANITA RAMASASTRY
Googling Potential Jurors: The Legal and Ethical Issues Arising from the Use of the Internet in Voir Dire
FindLaw columnist and U. Washington law professor Anita Ramasastry comments on an increasingly common phenomenon: the use of the Internet by attorneys and jury consultants to research potential jurors during the voir dire process. Jury questionnaires, Ramasastry notes, now may ask about Internet use, and attorneys may use Internet research to find out more about jurors -- and even, in unusual cases, to ferret out jurors who have lied during voir dire or on the jury questionnaires that they have filled out. Lawyers may also decide how to frame arguments and present evidence at trial based in part on what they learn about jurors online. Ramasastry notes that there are serious potential downsides to lawyers' researching jurors on the Internet: For instance, any lawyer/juror online contact (including a Facebook "friend" request) is unethical, and if jurors have common names, lawyers should beware of assuming that they have gotten the right person's information via the Web. Friday, July 30, 2010By CHRISTIAN SIEBOTT and DAVID HARRISON
Jury Verdict Targets Banks' Over-Reliance on Credit Ratings
FindLaw guest columnists and attorneys Christian Siebott and David Harrison comment on a recent Minnesota jury verdict against Wells Fargo. The jury found that Wells Fargo breached its fiduciary duty to its clients when it invested in mortgage-backed securities (MBSs) and purchased notes issued by structured-investment vehicles (SIVs) on their behalf. As Siebott and Harrison explain, the verdict was notable because the MBSs and notes had received an AAA rating, or the equivalent, from credit ratings agencies -- but the jury's verdict indicates that such ratings were not enough; the bank also had an independent duty to do its own due diligence. Siebott and Harrison contend that this verdict is significant not only because other, similar verdicts may be forthcoming, but also because it may signal a fundamental change in the role of credit-rating agencies. Thursday, July 29, 2010By JOANNE MARINER
Forced Returns From Guantanamo
FindLaw columnist and human-rights attorney Joanne Mariner comments on the issue of Guantanamo prisoners who do not want to be sent back to their home countries, because they fear that they will face torture or other serious forms of abuse if they are repatriated. As Mariner explains, prisoners in this situation include the Uighurs, members of a Muslim minority from western China; and a number of Tunisians, Libyans, and Algerians. Mariner notes that, until now, the Obama Administration had not previously followed a policy of forced repatriation. Instead, it found third countries -- that is, countries other than the U.S. or the prisoners' home countries -- to which to send released Guantanamo prisoners who feared that they would be abused if repatriated. Mariner criticizes the policy change -- represented by the forced repatriation, ten days ago, of an Algerian prisoner who was not given any hearing regarding his claimed fear that he would be harmed if repatriated. In particular, Mariner notes that the new policy violates the Convention Against Torture, which the U.S. has ratified. Wednesday, July 28, 2010By MICHAEL DORF
Senator Lindsey Graham Puts Ideology Aside to Vote for Elena Kagan: His Stand is Honorable, But Is It Constitutionally-Required?
FindLaw columnist and Cornell law professor Michael Dorf comments on Republican Senator Lindsey Graham's recent remarks regarding his vote to send Elena Kagan's Supreme Court nomination from the Senate Judiciary Committee to the full Senate. As Dorf explains, Graham said that he was satisfied with Kagan’s professional qualifications, her character, and her understanding of the difference between law and politics. Graham also said that he disagreed with Kagan’s judicial philosophy, but that he recognized that her views were mainstream among Democrats. Given how Graham felt about Kagan, was he duty-bound, under the Constitution, to vote as he did -- as Graham himself suggested? Dorf suggests that the answer is actually "No" -- and explains the complex, interesting constitutional history that informs the analysis of this issue. Monday, July 26, 2010By JOHN DEAN
Should Shirley Sherrod Sue Andrew Breitbart and Fox News?
FindLaw columnist and former counsel to the president John Dean takes on a question that is currently getting significant attention in the media and on the Internet: Should Sherry Sherrod -- who was falsely portrayed as a racist based on selected clips of a speech she gave to the NAACP, and fired from her Obama Administration post as a result -- sue blogger Andrew Breitbart, who disseminated the clips, and/or Fox News, which ran them? Dean argues that the most promising suit for Sherrod to bring would be one for false-light invasion of privacy -- a tort that is related to, but different from, defamation. But Dean warns that Sherrod's suit would be an uphill battle in light of the Supreme Court's high proof standards, and counsels that, in the end, Sherrod would be better served by writing a book and lecturing about the controversy, than by suing Breitbart and/or Fox News. Friday, July 23, 2010By MARCI HAMILTON
The Time Has Come for the Supreme Court to Carefully Examine the "Ministerial Exception," Which Allows Religious Employers to Discriminate in Hiring
FindLaw columnist and Cardozo law professor Marci Hamilton contends that it is high time for the U.S. Supreme Court to review the ways in which federal appellate courts have interpreted the "ministerial exception" to Title VII and other anti-discrimination laws. As Hamilton explains, this exception derives from the First Amendment religion clauses, and ensures that secular authorities do not interfere with religious employers' hiring of clergy and other employees who are involved in religious doctrine. Hamilton contends, however, that the exception has been interpreted too broadly by the courts. Given several splits among the federal appellate courts about how to interpret the exception, Hamilton suggests that the High Court should grant review to clarify matters. Thursday, July 22, 2010By SHERRY COLB
An Oklahoma Abortion Law Raises New and Different Rights Questions
FindLaw columnist and Cornell law professor Sherry Colb analyzes the legal questions raised by a new Oklahoma abortion law that, as she explains, operates differently than many abortion restrictions do. Specifically, the law prevents a patient from suing her doctor for failing to reveal to her, during her pregnancy, the presence of a fetal abnormality. Colb notes that most abortion restrictions stop pregnant women from obtaining abortions at the time, at the place, and/or in the manner of their choosing -- or compel young women to gain permission for their abortion from a parent or judge. But this restriction is different: It does not interfere with a woman's ability to get an abortion at a time when she wants one, but it does allow doctors to withhold from women information that might cause some women to decide to abort -- by rendering doctors immune from a lawsuit based on their withholding that information. Using Colb's terms, the law thus does not interfere with a woman's Bodily Integrity Interest (as limits on abortion may), but it does interfere with her Offspring Selection Interest -- but should the latter interest be honored? Colb considers the arguments. Wednesday, July 21, 2010By JOANNA GROSSMAN
Is the Defense of Marriage Act (DOMA) Valid? A Federal Court Judge Says No: Part Two in a Two-Part Series of Columns on the Two Companion DOMA Cases in Massachusetts
In Part Two in a two-part series of columns, FindLaw columnist and Hofstra law professor Joanna Grossman analyzes a recent decision by Boston-based U.S. District Judge Joseph Tauro regarding the federal Defense of Marriage Act (DOMA). As Grossman explains, the Obama Administration is seeking to enforce Section Three of DOMA, which provides that marriage is defined as the union between a man and a woman for all federal-law purposes. Two cases that challenge the enforcement of Section Three came before Judge Tauro. In this column, Grossman discusses the case of Commonwealth v. United States Department of Health and Human Services, and the role that marital-law history has played both in that case, and in the companion DOMA case that Grossman discussed in Part One of this series. Tuesday, July 20, 2010By JOANNA GROSSMAN
Is DOMA -- the Defense of Marriage Act -- Valid? A Federal District Court Judge Says No
FindLaw columnist and Hofstra law professor Joanna Grossman analyzes a recent decision by Boston-based U.S. District Judge Joseph Tauro regarding the federal Defense of Marriage Act (DOMA). As Grossman explains, the Obama Administration is seeking to enforce Section Three of DOMA, which provides that marriage is defined as the union between a man and a woman for all federal-law purposes. Two cases that challenge the enforcement of Section Three came before Judge Tauro. In this column -- the first in a two-part series that will continue tomorrow, July 20th -- Grossman discusses one such case, Gill v. Office of Personnel Management; the genesis of DOMA Section Three; and why Judge Tauro held that Section Three was constitutionally invalid as applied to the plaintiffs before him. Monday, July 19, 2010By VIKRAM DAVID AMAR
How The Aftermath of Senator Byrd's Passing Offers Constitutional Lessons About the Senate and the Processes Used to Fill Senate Vacancies
FindLaw columnist and U.C., Davis law professor Vikram Amar considers the constitutional lessons we can learn from situations where a Senator passes away, and the resulting Senate vacancy must be filled. Amar contends that often, Senators facing terminal health issues may best serve their constituencies by eventually opting to resign their seats. Amar examines the example of Senator Robert Byrd as a case in point. He describes the new status quo after Byrd, which has left Democrats short of a filibuster-proof majority; describes the process and political realities related to the selection of Byrd's successor; and contends that this situation shows why temporary gubernatorial appointments should be utilized, and should be made fairly quickly. Amar also calls for further clarity in the relevant law and an acceptance of vacancy-filling as an inherently political process. Friday, July 16, 2010By NEIL BUCHANAN
Fighting the Recession With Deficits: Do Advocates of More Stimulus Spending Need to Prove Their Credibility?
FindLaw columnist, Cornell Visiting Scholar, George Washington law professor, and Economics PhD Neil Buchanan comments on the ongoing debate regarding whether legislation authorizing further stimulus spending (including spending to cover unemployment benefits) should be passed. In particular, Buchanan takes issue with the argument -- made, for example, in a recent Washington Post editorial -- that those who advocate short-term stimulus spending lack credibility because they do not also offer a long-term plan to control future deficits. Buchanan contends that these two points should be de-coupled, and that current short-term stimulus proposals ought simply to be assessed on their own merits. Thursday, July 15, 2010By MICHAEL DORF
Cases on Arizona's Immigrant-Investigation Law and the Defense of Marriage Act Show the Cross-Ideological Interplay Between Federalism and Individual Rights
FindLaw columnist and Cornell law professor Michael Dorf comments on recent two federal cases that address disparate subject matter -- immigrant rights, and same-sex marriage, respectively -- but both shed light on issues of federalism and individual rights. As Dorf explains, these two cases illustrate how federalism and rights concerns do not always line up the same way ideologically, nor do they always align with the same political party. In the immigrants' rights case -- the federal government's suit targeting Arizona's controversial law on immigration -- the federal government is taking a liberal position. But in the same-sex marriage case, the federal government is taking a conservative position by advocating against the recognition of state-authorized same-sex marriage for federal-law and federal-benefits purposes. Dorf explains and explores the interplay of federal and state law -- and the question whether federal law preempts (that is, trumps) state law in each case. Monday, July 12, 2010By JOHN DEAN
How Harry Reid Might Respond to Sharron Angle's Planned "SLAPP" Suit
FindLaw columnist and former counsel to the president John Dean discusses the suit that may soon be filed by Nevada Republican Senate candidate Sharron Angle against her opponent Harry Reid, the Democratic Majority Leader of the US Senate. Angle is taking strong issue with Reid's republication of materials from her primary-campaign website. However, Dean contends that if Angle actually sues Reid over the republication, she may trigger Nevada's Anti-Strategic Lawsuits Against Public Participation ("Anti-SLAPP") law, which could be costly for Angle. Dean also describes how Angle's own admissions about the materials may separately undermine her suit. Friday, July 9, 2010By MARCI HAMILTON
The Vatican Adjusts Its Child-Sex-Abuse Policies Again: A Reminder of How Statutes of Limitations Play a Nefarious Role
FindLaw columnist and Cardozo law professor Marci Hamilton comments on the Vatican's new policies regarding clergy-child-sex-abuse claims. The new policies would require an internal Church trial and call for compliance with civil reporting statutes. But Hamilton points out that internal trials will not protect children outside the church, who still may unknowingly face abusers; and that the Church has lobbied hard for clergy and confessional exceptions to the very civil reporting statutes it now says it will follow. Hamilton also takes issue with those who have opposed statute-of-limitations "windows" allowing a short period during which abuse claims that would have been time-barred are considered timely. Hamilton contends that the suggestion that plaintiffs will fabricate false claims, and that judges and juries won't know the difference, flies in the face of empirical realities. Thursday, July 8, 2010By JOANNE MARINER
Talking to Terrorists: The Worst U.S. Supreme Court Decision of the Term
FindLaw columnist and human rights attorney Joanne Mariner discusses the Supreme Court's recent, end-of-Term decision in Holder v. Humanitarian Law Project. There, the Court held that peace and human-rights activists could not legally advise and train militant groups to use lawful means to achieve political ends. Specifically, the groups had wanted to (1) train Kurdish nationalists in Turkey on how to use international law to resolve disputes peacefully, and how to petition “representative bodies such as the United Nations” for relief; and (2) engage in political advocacy on behalf of the Kurds in Turkey and the Tamil Tigers in Sri Lanka. Mariner argues that the ruling -- which held that the First Amendment did not protect the activists' planned communications with the groups at issue from being characterized as illegal "material support" to terrorist groups under federal law--is among the top candidates for being the Term's very worst. Wednesday, July 7, 2010By JULIE HILDEN
Elena Kagan on the First Amendment: Evidence from Her Confirmation Hearings
FindLaw columnist, attorney, and author Julie Hilden comments on the First-Amendment-related views that Supreme Court nominee Elena Kagan voiced during her confirmation hearings. The topics ranged from cameras in the Court, to campaign-finance restrictions, to libel law, to the possible intersection between antitrust law and the First Amendment. Hilden contends that Kagan's answers, at times, suggested that she is not as pro-First Amendment as might be desirable in a Justice -- and in particular, that Kagan may be underestimating the free-speech influence of the Internet and of the rapid change in the nature of the media business. Tuesday, July 6, 2010By SHERRY COLB
The Supreme Court Denies A Public Employee's Privacy in Electronic Communications: What's Next?
FindLaw columnist and Cornell law professor Sherry Colb comments on the Supreme Court's recent, end-of-Term decision in Ontario v. Quon. Colb contends that the Court's outcome -- holding that a public employer can, under some circumstances, read the text messages an employee sends on an employer-owned pager that is meant to be used for work purposes -- should have been unsurprising to Court observers. She also explains that the case before the Court was made easier by a number of facts -- such as the employer's express warning to its employees that its policy was that it could read their texts without prior notice. Much more surprising than the outcome here, Colb contends, was the explicit decision by the Court to refrain from interpreting what privacy rights mean in the area of electronic communications, on the ground that the technology is in a state of flux. Colb argues that Justice Scalia was right to ask the Court not to shrink from deciding cases in this area of law. Tuesday, July 6, 2010By VIKRAM DAVID AMAR
What the CLS v. Martinez Ruling Reveals About the Supreme Court's Processes
FindLaw columnist and U.C., Davis law professor Vikram Amar comments on three interesting insights that the Supreme Court's recent ruling in Christian Legal Society v. Hastings provides, regarding the Court's processes. The case pitted Hastings College of the Law -- a public law school that is part of the University of California system -- against the Christian Legal Society (CLS) group at Hastings. CLS sought funding and affiliation from Hastings, but denied non-believers and gay persons the ability to join. The Court held that Hastings could constitutionally withhold affiliation and funding from CLS. Amar explains how the Court's decision illustrates that, at the Court, (1) doctrine truly matters; (2) the concessions parties make in the course of litigation matter, too; and (3) the Court prefers to defer to institutional judgment when it can, and perhaps especially when the institution at issue is a university. Friday, July 2, 2010By MARCI A. HAMILTON
CLS v. Martinez: The Supreme Court Rightly Holds that Public Law Schools Can Deny Affiliation and Funding to Religious Groups that Discriminate Against Gay Students
FindLaw columnist and Cardozo law professor Marci Hamilton comments on the Supreme Court's decision, issued this Monday, June 28th, in the case of CLS v. Martinez. As Hamilton explains, the case was brought by the Christian Legal Society (CLS) against Hastings, a public law school within the University of California system. CLS argued that Hastings infringed the constitutional rights of students who belonged to CLS's Hastings-based chapter when it denied the group law-school affiliation and the same funding other student groups enjoy. The reason the law school denied CLS the affiliation and funding was that CLS bars gay persons from being full members or leaders of CLS. Hamilton contends that the Court was correct to rule in favor of Hastings, and explains how the case fit into the Court's jurisprudence regarding public fora. Thursday, July 1, 2010By NEIL H. BUCHANAN
The Debate Over Unemployment Benefits: Economics is Complicated, Heartlessness is Simple
FindLaw columnist, Cornell Visiting Scholar, George Washington law professor, and Economics PhD Neil Buchanan argues that the debate over extending Americans' unemployment benefits, in the midst of the Great Recession, shouldn't be happening at all. Buchanan contends that this issue is a no-brainer, as extending benefits is not only the compassionate thing to do, but also a measure that will predictably increase spending and thus bolster the economy. Buchanan also offers responses to those who oppose an extension of benefits based on the idea that unemployment benefits incentivize people not to work, or the idea that only "permanent" income (not limited-time payments) incentivizes people to spend money. Buchanan argues that neither of these ideas holds water when there are few or no jobs to be found; when benefits are stingy and short-term at best; and when workers have no choice but to spend the benefits they receive, to support their families. Thursday, July 1, 2010By CARL TOBIAS
Confirming the Two North Carolina Nominees to the U.S. Court of Appeals for the Fourth Circuit
FindLaw guest columnist and U. Richmond law professor Carl Tobias calls for the confirmation of two jurists who have been nominated to the U.S. Court of Appeals for the Fourth Circuit: North Carolina Superior Court Judge Albert Diaz, and North Carolina Court of Appeals Judge James Wynn. Tobias explains why the Fourth Circuit has suffered lingering vacancies, and urges that the Circuit's ability to dispense justice will be hampered until it is operating with its full complement of judges. He also contends that Diaz and Wynn would make excellent additions to the Fourth Circuit -- noting that each is rated "well qualified" by the ABA, and each enjoys support from both North Carolina's Democratic Senator, Kay Hagan, and its Republican Senator, Richard Burr. Wednesday, June 30, 2010By MICHAEL C. DORF
The Potentially Far-Reaching Implications of the Supreme Court's Ruling that the Second Amendment Binds the States
FindLaw columnist and Cornell law professor Michael Dorf weighs in on the Monday, June 28th, Supreme Court ruling holding that the Second Amendment's right to bear arms applies against the States, and not only the federal government, and that, therefore, the Second Amendment limits States' and localities' ability to ban handguns. The Court's ruling builds on its prior ruling that the Second Amendment limits the District of Columbia's ability to ban handguns. As Dorf explains, in this case, the Court had to confront not only the issue of whether the right to bear arms -- and specifically, a right to keep a gun for the defense of one's self and family in one's home -- applies against the States, but also what the constitutional basis for that holding is: the Due Process Clause, or the Privileges or Immunities Clause? Dorf also considers whether this Monday's decision indicates that the Court is open to incorporating -- that is, applying -- more, or even all, of the Bill of Rights to the States, and not simply to the federal government. Tuesday, June 29, 2010By JOHN DEAN
Does the Judge Who Blocked Obama's Drilling Moratorium Suffer from an Unethical Conflict of Interest?
FindLaw columnist and former counsel to the president John Dean discusses important details regarding the possible conflict of interest on the part of U.S. District Judge Martin Leach-Cross Feldman, who recently granted a preliminary injunction against the U.S. Department of the Interior's planned six-month drilling moratorium for the Gulf of Mexico. Dean specifically describes the canon of judicial ethics that is at issue here, and the potential extent of Judge Feldman's conflict of interest, if he currently retains certain investments that he is known to have previously held. Dean also analyzes Feldman's decision regarding the preliminary injunction -- and faults the judge for failing to focus on the evidence in the way that such a motion merits. Friday, June 25, 2010By CARL TOBIAS
The President's Proposed System for Compensating the BP Spill Victims: The Issues It May Raise
FindLaw guest columnist and U. Richmond law professor Carl Tobias comments on the issues that have yet to be resolved regarding the planned system for compensating those harmed by the BP Gulf oil spill. Among those issues, as Tobias explains, are how much BP may have to pay beyond the $20 billion it has put in escrow; what procedures the compensation system, headed by prior 9/11 Fund administrator Ken Feinberg, will use; what types of claims will and will not be paid; and what legislation will accompany the creation and administration of the compensation system. Thursday, June 23, 2010By SHERRY F. COLB
The Miranda Right to Counsel Shrinks at the Supreme Court
FindLaw columnist and Cornell law professor Sherry Colb comments on a significant recent right-to-counsel Supreme Court decision, Maryland v. Shatzer. The case posed the following question: An incarcerated prisoner is interrogated about a second crime that he is suspected of committing. He invokes his Miranda rights to ask for an attorney, which cuts off the questioning. Two weeks later, while he is still incarcerated, police would like to re-approach him, to question him again about the second crime, while giving him new Miranda warnings. Can they do so? The Court answered yes, but Colb seriously questions the theory that drove the Court's result -- which suggested that a prisoner's returning to the general prison population, after being interrogated, is akin to a person outside of prison being released by the police being released after interrogation, and resuming his normal daily life. Wednesday, June 23, 2010By JOANNA L. GROSSMAN
New York's Legislature Is on the Brink of Adopting True No-Fault Divorce: What the Change Would Mean for Unhappy Couples
FindLaw columnist and Hofstra law professor Joanna Grossman comments on the significance of New York's likely move to a system of no-fault divorce. The State is the last in the nation to still grant divorces only on the basis of a spouse's fault (or pursuant to a separation agreement, and after a full year has passed). Grossman explains the specific bases on which a New York divorce can currently be granted; describes the wave of 1970s divorce reform in which New York declined to participate; compares New York's current divorce law to that of other states; and considers the benefits of the recently-proposed change in the law. Tuesday, June 22, 2010By JULIE HILDEN
Will the Internet End -- Or Simply Transform -- Libel Law?
FindLaw columnist, attorney, and author Julie Hilden comments on reports that the number of libel suits filed against media entities is dropping sharply -- and considers possible explanations as to why this is the case. Hilden also argues that libel law realities have long been unfair to defendants, and suggests why, in the age of the Internet, the longstanding law regarding libel may be outmoded in important ways. She argues for the federalization of libel law under uniform standards, and the abolition of local juries that give plaintiffs a home-state advantage. She also describes possible solutions such as a requirement that an allegedly libelous statement must always be conjoined, on the Internet, with a reply from the statement's target. Monday, June 21, 2010By VIKRAM DAVID AMAR
Reflections on the Trial Challenging California's Proposition 8, the Ban on Same-Sex-Marriage
FindLaw columnist and U.C., Davis law professor Vikram Amar comments on the recent conclusion of the trial over California's Proposition 8, the state's voter-passed ban on same-sex marriage. Amar cautions that even if the plaintiffs win, we won't soon be seeing same-sex marriages performed in California, because the ruling -- which is expected to issue this summer -- would very likely be stayed pending appeal. He also explains the unique dynamics of review by the U.S. Court of Appeals for the Ninth Circuit, and considers the chances of the ultimate Ninth Circuit decision being reviewed by the U.S. Supreme Court -- noting that if the plaintiffs lose before the Ninth Circuit, and Proposition 8 is upheld, the Court is unlikely to take the case. Friday, June 18, 2010By NEIL H. BUCHANAN
Drawing Lines for Business Behavior: Lessons from the Rand Paul Controversy and President Obama's Response to the Gulf Disaster
FindLaw columnist, Cornell Visiting Scholar, George Washington law professor, and Economics PhD Neil Buchanan makes an interesting connection between two recent controversies involving, respectively, Republican Senate candidate Rand Paul and President Obama. Buchanan contends that analysts -- such as one in the New York Times -- have let Paul off the hook too easily for his controversial remark on "The Rachel Maddow Show," disagreeing with the Civil Rights Act's prohibition on discrimination on the basis of race in the provision of goods and services. Rather than deeming such civil-rights controversies to be mere artifacts of the Sixties, as the Times analyst suggested, Buchanan contends that civil-rights law is alive and well, and that Paul's views on that area of law still matter, even though no one contends that Paul is himself a racist. Buchanan also argues that, at least since the Reagan era, too many Democrats have shared Reagan's and Paul's view that regulating business is inherently bad. He also notes that a reflexive trust in business may well have been one of the forces behind President Obama's much-criticized initial response to the BP oil spill disaster.Thursday, June 17, 2010
By WALTER M. WEBER
Supreme Court Bungles False Claims Act Case
FindLaw guest columnist Walter Weber, Senior Litigation Counsel at American Center for Law and Justice, discusses the Supreme Court's recent decision in a False Claims Act case, Graham County Soil and Water Conservation District v. U.S. ex rel. Wilson. Weber explains how this decision creates new obstacles to the valuable private enforcement mechanism of qui tam suits.Wednesday, June 16, 2010
By MICHAEL C. DORF
What's in Store for Elena Kagan? An Imagined Confirmation Hearing
What can we expect from this month's upcoming confirmation hearings for Supreme Court nominee, and current Solicitor General, Elena Kagan? FindLaw columnist and Cornell law professor Michael Dorf offers a humorous and telling account of how he imagines the confirmation hearings might go -- especially if Kagan and her questioners were much more candid than they are likely to be in reality.Tuesday, June 15, 2010
By JOHN W. DEAN
President Obama's Scandal That Wasn't, and Still Isn't: The Alleged Promises to Sestak and Romanoff
FindLaw columnist and former counsel to the president John Dean comments on allegations that the Obama White House made illegal promises to Congressman Joe Sestak and to Andrew Romanoff, the former speaker of the Colorado House of Representatives, on the condition that each would not run for a Senate seat. Dean contends that this so-called scandal is really a non-scandal, or faux scandal. After analyzing the federal criminal statute that has been claimed to be implicated here, he concludes that both the Sestak and Romanoff discussions were clearly outside the scope of that law. Dean also notes that, in the past, there have been clear instances of Republicans promising jobs for political support -- and thus doing essentially the same thing that some Republicans now claim is a crime when done by the Obama Administration.Friday, June 11, 2010
By MARCI A. HAMILTON
Reforming the Statute of Limitations for Child Sex Abuse: New York's Child Victims Act Shouldn't Be Political, But It Is
FindLaw columnist and Cardozo law professor Marci Hamilton comments on a bill that would have altered New York law on criminal and civil statutes of limitations for child sex abuse, but that was defeated in New York's Senate Codes Committee. As Hamilton explains, the bill would have extended criminal and civil statutes of limitations for child sex abuse by five years, and would have opened a year-long statute-of-limitations window, during which past victims could bring suit even if the applicable statute of limitations had previously expired. Hamilton sharply criticizes the legislators whose votes killed the bill. In particular, she faults them for going after the vandalism of church property aggressively, while at the same time opposing statute-of-limitations changes that would have aided in the prosecution of clergy child sex abuse.Thursday, June 10, 2010
By JULIE HILDEN
Can Public Schools Constitutionally Punish Students' Off-Campus Speech? The U.S. Court of Appeals for the Third Circuit Will Decide
FindLaw columnist, attorney, and author Julie Hilden comments on two February 2010 Third Circuit panel decisions that were recently re-heard en banc by the Circuit. Both decisions involve public-school students who were suspended from school for creating fake MySpace pages that purported to be (but could not really have been mistaken for) pages authored by, and about, the principals of their schools. Hilden explains and contrasts the facts of the two cases, and contends that the ACLU's position that schools cannot constitutionally regulate off-campus speech is correct. She also argues that, while the students' conduct in the cases was not ideal, the principals' conduct was far worse: They even went so far as to go to the police to consider criminal charges against their own students, based on the parodic MySpace pages.Wednesday, June 9, 2010
By JOANNA L. GROSSMAN
Lewis v. City of Chicago: The Supreme Court Protects the Rights of Disparate-Impact Discrimination Plaintiffs
FindLaw columnist and Hofstra law professor Joanna Grossman comments on a recent Supreme Court decision regarding disparate-impact discrimination. As Grossman explains, the underlying claim was that the cutoff score on an exam for would-be firefighters had a disparate impact on African-American candidates, but the key issue in the case was whether the would-be firefighters had filed their claims soon enough for the claims to be timely. The Court ultimately decided that the claims had, in fact, been timely. Grossman explains in detail why the Court reached that conclusion, and traces the line of anti-discrimination-law precedent that it relied upon in coming to its result.Tuesday, June 8, 2010
By SCOTT GERBER and KEVIN HAWLEY
Elena Kagan and the Return to Feudalism
FindLaw guest columnists Scott Gerber, an Ohio Northern law professor, and Kevin Hawley, an Ohio Northern distinguished practitioner in residence, take issue with a repeated theme in the debate over Elena Kagan's Supreme Court nomination: the theme of elitism. Gerber and Hawley contend that Kagan's Harvard Law School attendance and, later, deanship, have caused many to fail to fully and fairly examine the rest of her record. They note that their quibble is not so much with Kagan herself -- as they believe she would be a fine Justice -- as with those who believe that her Harvard connections mean that little further inquiry, or accomplishment, is necessary. In particular, Gerber and Hawley point to editorials supporting Kagan by Professor Mark Tushnet and Dean Christopher Edley as exemplifying the problem.Monday, June 7, 2010
By SHERRY F. COLB
The Supreme Court Holds That Responding to Police Interrogation Waives The Right to Remain Silent
FindLaw columnist and Cornell law professor Sherry Colb comments on a recent Supreme Court decision regarding the scope and meaning of the famous "right to remain silent" established by the Court in Miranda v. Arizona. As Colb explains, the Court held that a suspect who had been read his Miranda rights, and then was subjected to an almost three-hour-long near-monologue of police questioning, still waived those rights when he finally responded to the police. Colb -- who predicted this very holding at an earlier stage of the case -- argues that the Court's decision breaks with the spirit of Miranda, which was meant to serve as a genuine protection against coercive interrogation.Monday, June 7, 2010
By VIKRAM DAVID AMAR
What Does It Mean to "Let the People Decide"? California's Proposition 16, Supermajority Rules, and the Unhelpfulness of Political Ads
FindLaw columnist and U.C., Davis law professor Vikram Amar comments on California's Proposition 16, which would impose a supermajority voting rule when municipal officials make decisions to invest money in providing electric service. Amar faults the publicity campaign for the Proposition for leaving out its supermajority component, and presenting the issue as simply one as to whether the public should have a right to vote. Amar also contends that there are only two categories of situations where supermajority voting rules truly make sense, and questions whether Proposition 16 fits into either of them.Friday, June 4, 2010
By NEIL H. BUCHANAN
In the Wake of the Gulf Oil Disaster, We Must Conserve Energy, Develop Alternatives, and Revisit the Choice Among Oil, Coal, and Nuclear Energy
What can we learn from the Gulf oil disaster? FindLaw columnist, Cornell Visiting Scholar, George Washington law professor, and Economics PhD Neil Buchanan suggests that there are a number of lessons that this event can teach us, regarding the energy choices we should make. Now, he notes, we know some things we did not know before the disaster: We know that this kind of low-probability event really can happen, and we know what its actual, not just theoretical, costs can be. In addition to reminding us that we need making conservation even more of a priority, Buchanan contends, the Gulf disaster may teach us that of our energy choices, coal is the most attractive. Although the coal option, too, has serious flaws, Buchanan argues, the worst-case scenarios for coal are far less bad than those for oil, which risks more Gulf-like disasters, or for nuclear energy, where another Chernobyl or a terrorist incident, is possible.Thursday, June 3, 2010
By MICHAEL C. DORF
A Unanimous Supreme Court Decision on the Foreign Sovereign Immunities Act Highlights Ongoing Divisions Over Legislative History
FindLaw columnist and Cornell law professor Michael Dorf comments on this week's ruling in Samantar v. Yousuf, a human-rights case that was brought against the former Vice-President, Defense Minister, and Prime Minister of Somalia -- who then claimed immunity under the Foreign Sovereign Immunities Act. As Dorf explains, the Supreme Court was unanimous in denying immunity, but splintered as to how, precisely, to read the Act. Dorf discusses the different perspectives on statutory interpretation -- textualist and purposivist -- that informed the Justices' views.Wednesday, June 2, 2010
By JOHN DEAN
Messing With Miranda To Fight Terrorism: Obama's Playing Politics With Limited Options, Part 2
FindLaw columnist and former counsel to the president John Dean continues his two-part series of columns on the controversy over the Obama Administration's discussion of whether to modify the public-safety exception to Miranda rights when the person being interrogated is a terrorism suspect. Here, in Part Two, Dean notes that a statute embodying a modification of the public-safety exception may well be in the works. He also compares and contrasts George W. Bush's, Dick Cheney's, and President Obama's respective stances on what the law regarding terrorism should look like, and the extent to which it should be civilian or military.Friday, May 28, 2010
By CARL TOBIAS
Why Jane Branstetter Stranch Should Be Quickly Confirmed to a Seat on the U.S. Court of Appeals for the Sixth Circuit
FindLaw guest columnist and U. Richmond law professor Carl Tobias highlights the delays affecting one federal appeals court nominee's confirmation hearing and vote, while also providing a larger perspective as to the continuing delay in filling the substantial number of federal appeals court vacancies across the nation. The nominee on whom Tobias focuses is Jane Branstetter Stranch, a well-respected Nashville attorney whom the President has nominated for a seat on the U.S. Court of Appeals for the Sixth Circuit. Especially given that Stranch enjoys the support of Tennessee's two Republican Senators, and was approved by the Senate Judiciary six months ago, Tobias contends that Stranch deserves a hearing that occurs as soon as possible, and deserves to be confirmed.Friday, May 28, 2010
By VON G. KEETCH
Protecting Children in the Church of Jesus Christ of Latter-Day Saints
FindLaw guest columnist Von Keetch -- who has worked closely with the LDS Church on child abuse issues for twenty years, and has served as an ecclesiastical leader in the Church -- defends the LDS Church's positions and actions regarding the clergy-child-sex-abuse issue, and, in particular, regarding the question of when and how abuse should be reported. Keetch is responding to an April 15 column by FindLaw columnist and Cardozo law professor Marci Hamilton, which argued that the LDS Church has much work to do in this area.Thursday, May 27, 2010
By MARCI A. HAMILTON
A Reply to Von Keetch's Comments on Clergy Child Sex Abuse and the Church of Jesus Christ of Latter-Day Saints
FindLaw columnist and Cardozo law professor Marci Hamilton continues the dialogue that she began with her April 15 piece on the Church of Jesus Christ of Latter-Day Saints's handling of claims of clergy child abuse, which argued that the LDS Church has much work to do in this area. After Hamilton's column appeared, FindLaw posted a responsive column by Von Keetch -- who has worked closely with the LDS Church on child abuse issues for twenty years, and has served as an ecclesiastical leader in the Church -- defending the LDS Church's positions and actions on this issue. Here, Hamilton responds to Keetch, explaining why -- in light of Keetch's response, the Church's lobbying efforts, and a number of emails from readers belonging to the Church -- she still believes the LDS Church must change its stance.Thursday, May 27, 2010
By SHERRY F. COLB
High Court Rejects Life Without Parole for All Juvenile, Non-Homicide Crimes
FindLaw columnist and Cornell law professor Sherry Colb discusses a recent, highly significant Supreme Court decision, Graham v. Florida. As Colb explains, the Court held that it is an Eighth Amendment violation to sentence a juvenile to life imprisonment without parole for the commission of a lesser crime than homicide. Colb sets forth the facts of the case, explains why the Eighth Amendment claim that was made was audacious, puts the decision in the context of prior Eighth Amendment precedent, and explains what the Justices' views on this case may mean for future cases. In particular, Colb explains why Eighth Amendment cases -- which typically have involved death penalty challenges -- may now more frequently include challenges to lengthy prison sentences.Wednesday, May 26, 2010
By JOANNA L. GROSSMAN
New York's Highest Court Recognizes A Lesbian Co-Parent's Rights, But Affirms an Unpopular Precedent: Part Two in a Two-Part Series
FindLaw columnist and Hofstra law professor Joanna Grossman continues her two-part series of columns regarding a recent, important family-law/same-sex-partnership decision by the New York Court of Appeals -- the state's highest court. As Grossman explains, the Court held that a woman whose same-sex partner gave birth to a child (via donor sperm) during the course of their Vermont civil union (which is now ended), and who alleges that she co-parented that child for several years, may seek visitation with, or custody of, the child -- despite the objections of her former partner. Here, in Part Two, Grossman discusses an alternative ground upon which the court could have granted recognition of the same-sex partner's parental rights: the de facto parentage doctrine, which looks to the functional parent-child relationship in a particular case, and not the formal ties, to determine if someone is a parent.Tuesday, May 25, 2010
By JULIE HILDEN
The New Jersey Supreme Court Recognizes a Conditional Privilege to Report on Plaintiffs' Initial Pleadings Without Fear of a Libel Suit
FindLaw columnist, attorney, and author Julie Hilden comments on a recent New Jersey Supreme Court libel-law decision. In the decision, the court recognized a conditional privilege against libel claims based on news stories that report on plaintiffs' complaints after the complaints are filed at the courthouse. As Hilden explains, plaintiffs' filed complaints themselves have long enjoyed an absolute privilege from libel suits; the question here was whether news reports about those complaints also enjoy a privilege and if so, if that privilege is conditional or absolute. The New Jersey court held that there is a conditional privilege for such reports if they are "full, fair and accurate"; Hilden argues that a strong case can be made for going further and recognizing an absolute privilege here, especially since application of the "fair" prong may be highly subjective and possibly political.Monday, May 24, 2010
By VIKRAM DAVID AMAR
Elena Kagan's Confirmation Hearings: Her Lack of Judicial Experience May Not Matter, But a Key Essay She Wrote Might
FindLaw columnist and U.C., Davis law professor Vikram Amar comments on the issues that may arise in the upcoming Supreme Court confirmation hearings of Elena Kagan. Amar contends that, while much has been made of Kagan's lack of judicial experience, that argument may well have been given too much weight: He points out that previous nominees have been confirmed (and gone on to make excellent Justices) despite either a complete lack of judicial experience, or judicial experience that was too limited to be a good predictor of their likely performance on the Court. Still, Amar adds, Kagan is likely to face aggressive questioning for another, better reason: She herself has written that Court nominees should face far more searching questions than have been posed in recent confirmation hearings. Having accused prior nominees of "stonewalling," Amar suggests, Kagan cannot very well stonewall questioners herself.Friday, May 21, 2010
By NEIL F. BUCHANAN
Why New York's (and Other Jurisdictions') Food Regulations Do Not Violate Freedom of Choice: The False Notion That Our Tastes Are of Our Own Making
FindLaw columnist, Cornell Visiting Scholar, George Washington law professor, and Economics PhD Neil Buchanan responds to arguments that food regulations such as New York City's -- which both provide information to consumers about food, and seek to change the types of food that are sold in the city -- are an unacceptable incursion on Americans' freedom. Buchanan urges readers, before condemning such regulations, to consider the ways in which our food choices are already far from free -- for instance, we are influenced by eating habits formed when we were young children, surrounded by the results of our culture's deep-seated views on food, and affected by food industry messages that serve the interests of profit, not health, and have contributed to our obesity -- and childhood obesity -- crisis.Thursday, May 20, 2010
By MICHAEL C. DORF
The Supreme Court's Decision About Sexually Dangerous Federal Prisoners: Could It Hold the Key to the Constitutionality of the Individual Mandate to Buy Health Insurance?
FindLaw columnist and Cornell law professor Michael Dorf offers an interesting take on the Supreme Court's decision, issued this week, regarding the civil confinement of federal prisoners who have served their criminal sentences, yet are found to be mentally ill and "sexually dangerous." Dorf explains the basis for the Court majority's holding allowing the civil confinement of such criminals, and also notes the basis for the dissent. In addition, he connects the issues the case raises to the issues raised by those who object to the federal government's imposing a mandate on individuals to purchase health insurance -- and explains the role such issues might play in Supreme Court nominee Elena Kagan's confirmation hearing, and how Kagan might best respond.Wednesday, May 19, 2010
By JOANNE MARINER
More Questions About Drones
FindLaw columnist and human rights attorney Joanne Mariner follows up on her earlier piece on the United States' use of drones -- unmanned aerial vehicles -- by contrasting views of the drone program in the U.S. and in Pakistan, where substantial numbers of drone strikes have occurred. Mariner points out that only when a U.S. citizen became a target, did the drone program trigger Congressional hearings. Meanwhile, in Pakistan -- where Mariner points out that over 1,000 Pakistanis, including innocent civilians, have been killed in drone attacks since 2004 -- public scrutiny of the program has been more longstanding, and highly negative, and there is a strong belief that the drone attacks have actually increased support for militants.Monday, May 17, 2010
By JOHN W. DEAN
Messing With Miranda Rights To Fight Terrorism: Did Attorney General Holder Need A Warning, Too?
FindLaw columnist and former counsel to the president John Dean comments on Attorney General Eric Holder's indication, during recent television appearances, that the Obama Justice Department may be inclined to change its policy regarding reading terrorism suspects their Miranda rights. Dean argues that two aspects of Holder's appearances were disturbing: First, Dean observes that Holder's comments seemed to evolve from tentative ideas into possible policy through journalistic questioning. Second, Dean contends that if a change to Miranda policy is truly forthcoming, then it will place the Obama Administration to the right of even the Bush/Cheney Administration on the issue, will seriously harm the U.S.'s recently-much-improved human-rights image; and will contravene what we know about Miranda in practice.Friday, May 14, 2010
By MARCI A. HAMILTON
A Cartoonist Faces Backlash, in Sweden and the U.S., for Depicting Mohammed as a Dog: The First Amendment Lessons
FindLaw columnist and Cardozo law professor Marci Hamilton weighs in on the controversy over violent reactions to cartoons that depict Mohammed in ways that Muslim believers see as sacrilegious. In particular, she discusses a recent peaceful protest over the work of Swedish artist Lars Vilks, who had depicted Muhammad as a dog, which turned violent; and the plot against Vilks by a Pennsylvania woman, Colleen LaRose, who has since been nicknamed "Jihad Jane." Hamilton counsels that the United States -- and other countries -- must not back down from free-speech ideals, and must protect the writers and artists of controversial works. In support of her point, she cites a line of Supreme Court precedent that draws clear lines between permitted speech and illegal violence.Thursday, May 13, 2010
By SHERRY F. COLB
"Not Milk?": Dairy Petitions the FDA to Block Labels Like "Soy Milk" on Non-Dairy Products
FindLaw columnist and Cornell law professor Sherry Colb contends that the Food and Drug Administration (FDA) should reverse the regulations that it recently promulgated in response to a petition from the dairy industry. The petition sought to stop producers of non-dairy food from using terms such as "milk," "cheese," "ice cream," "sour cream" and "yogurt" to describe their products, and the regulations and warning letters that the FDA has since issued have followed suit. The industry group that filed the petition claims that the use of these words on labels falsely conveys to consumers that non-dairy products are "something they are not." However, Colb counters that it is the dairy producers that have failed to fully disclose the nature -- including the health consequences -- of the products they sell. Colb also argues that there is little likelihood of product confusion here, since those who buy soy milk and similar products are specifically trying to avoid dairy by opting for a substitute, not purchase it.Wednesday, May 12, 2010
By JOANNA L. GROSSMAN
New York's Highest Court Recognizes A Lesbian Co-Parent's Rights, But Affirms an Unpopular Precedent: Part One in a Two-Part Series of Columns
FindLaw columnist and Hofstra law professor Joanna Grossman commences her two-part series of columns on questions related to a recent, important family-law/same-sex-partnership decision by the New York Court of Appeals -- the state's highest court. As Grossman explains, the Court held that a woman whose same-sex partner gave birth to a child (via donor sperm) during the course of their Vermont civil union (which is now ended), and who alleges that she co-parented that child for several years, may seek visitation with, or custody of, the child -- despite the objections of her former partner. Grossman notes that while the decision may seem to be good news for non-traditional families, that is not entirely true: She explains that the decision also left intact a New York precedent that puts those who functionally co-parent a child for years-- but who are not linked to the child through birth or adoption, and who never formalize their relationship with the co-parent -- at risk of never seeing the child again.Tuesday, May 11, 2010
By JULIE HILDEN
The Supreme Court's "Violent" Video Games Case: The California Law Should Be Struck Down, But the Court May Well Uphold It
FindLaw columnist, attorney, and author Julie Hilden discusses a First Amendment case that the Supreme Court recently decided to review. The case concerns a California law that would restrict the sale of "violent" video games to minors, and would mandate the labeling of such games -- despite the fact that the industry already has its own labeling system, which is age-specific and content-specific. Hilden praises the decision in favor of the video-game makers and sellers by the U.S. Court of Appeals for the Ninth Circuit, but predicts that the Supreme Court is likely to rule the other way. She also argues that the implications of a ruling against the video game industry could not be cabined, and would set a precedent even for the banning of books depicting violence.Monday, May 10, 2010
By VIKRAM DAVID AMAR
President Obama's Pick to Fill Justice Stevens's Seat: The Valid -- and Wrong-Headed -- Considerations Regarding the President's Choice
FindLaw columnist and U.C., Davis law professor Vikram Amar weighs in on the considerations that President Obama should, and should not, take into account when choosing a new Justice to fill the seat of Justice John Paul Stevens, who is retiring. In particular, Amar discusses how large a role the upcoming congressional elections should play; whether Obama should take gender diversity into account (and if so, now or possibly for the next open seat); and whether the number of Harvard and Yale Law graduates who have served on the Court ought to militate in favor of preferring graduates of other law schools.Friday, May 7, 2010
By NEIL F. BUCHANAN
Oil Spills, Mine Disasters, and Everyday Environmental Degradation: The Suddenly Unhidden Costs of Our Standard of Living
FindLaw columnist, Cornell Visiting Scholar, George Washington law professor, and Economics PhD Neil Buchanan comments on the lessons we can learn from the Gulf of Mexico oil spill disaster and similar incidents. Buchanan examines the true costs associated with environmental harms, and notes that the spill disaster has brought with it not only new harms, but also new information that must now be taken into account in our decision-making -- for instance, information about flaws in our safety and mitigation technologies. Buchanan also raises the deeper question of whether, as Americans, we have made costly mistakes in our lifestyle choices by refusing to make outlays of money (such as for high-speed trains) that would have been beneficial in the long run, and opting for environmentally-damaging choices such as driving cars and eating copious amounts of meat. He stresses that we need to take into account not just direct costs, but invisible or low-visibility indirect costs as well, in assessing the toll our policy and lifestyle choices take.Thursday, May 6, 2010
By ANITA RAMASASTRY
Why the Judge in the Casey Anthony Trial Was Right to Recuse Himself Due to His Remarks to a Blogger
FindLaw columnist and U. Washington law professor Anita Ramasastry discusses an instance in which a Florida state judge recused himself because of comments he had made to a blogger who was covering a trial over which he was presiding. The defendant in the trial is Casey Anthony, who is charged with killing her two-year-0ld daughter, Caylee. Ramasastry notes that the judge's remarks to the blogger seem to have been relatively innocuous, but she contends that, since Florida's recusal standard is quite low, the judge likely did the right thing in recusing himself. She also notes that, in some states, judges themselves may be able to blog as long as they comply with certain relevant ethics rules.Thursday, May 6, 2010
By MICHAEL C. DORF
The New Arizona Immigration Law Raises an Old Question: What is "Reasonable Suspicion"?
FindLaw columnist and Cornell law professor Michael Dorf comments on a provision of Arizona's highly controversial new immigration law -- requiring a law enforcement official who possesses "reasonable suspicion" that a person with whom he has lawfully come in contact may be an illegal immigrant to seek to ascertain that person's immigration status. Drawing on Supreme Court precedent, Dorf explains how "reasonable suspicion" has been defined. He also comments on the law's requirement that the basis for the suspicion must be "articulable" -- that is, more than just an unexplainable hunch. Dorf notes that in some instances, hunches have been shown to be more accurate than an analysis of articulable factors -- but adds that there may still be good reason for courts to require an articulable basis for suspicion before the legal requirement can be fulfilled.Monday, May 3, 2010
By MARCI A. HAMILTON
How Other Religious Organizations Echo the Roman Catholic Church's Rule Against Scandal, A Precept that Entrenches and Perpetuates Cycles of Child Sex Abuse: Orthodox Judaism, Part Two in a Two-Part Series
FindLaw columnist and Cardozo law professor Marci Hamilton continues her series on how the precepts of religious institutions other than the Catholic Church affect those institutions' ability to respond effectively to clergy child sex abuse. In this column, Hamilton focuses on institutions within the Orthodox Jewish community, commenting on the way in which particular principles may inhibit those within the community from reporting abuse to outside authorities. Hamilton praises the Orthodox community for seemingly moving quickly toward the conclusion that child victims' needs must trump religious institutions' preferences, but notes that the ultra-Orthodox Jewish community still has a very long way to go on the reporting issue.Thursday, April 29, 2010
By SHERRY F. COLB
Nebraska Passes Law Prohibiting Abortion After Twenty Weeks: Implications for Abortion and Animal Rights
FindLaw columnist and Cornell law professor Sherry Colb comments on a new Nebraska law that will go into effect later this year, which will prohibit any abortion in the state that would occur after the twentieth week of pregnancy. Colb explains that the express reason that the twentieth-week cutoff was chosen is that it is the point at which some experts believe that a fetus begins to feel pain. Colb situates the law in the context of Supreme Court abortion precedent and the arguments that are made in the political debate over abortion. She also considers the possible implications of the law -- and the theory behind it -- for abortions that occur prior to the twenty-week cutoff. Finally, she raises a parallel between this controversy and controversies regarding animal rights: If suffering is a key benchmark for granting legal protection, then shouldn't animals -- who suffer terribly when used for food, experimentation and other purposes -- receive legal protection to prevent that suffering?Wednesday, April 28, 2010
By JOANNE MARINER
Questions for the Obama Administration on its Drone Warfare Program
With Congressional hearings beginning shortly on the Obama Administration's drone warfare program, FindLaw columnist and human rights attorney Joanne Mariner proposes questions that she contends ought to be asked regarding the program -- through which the CIA uses unmanned aerial vehicles ("drones") to fire missiles at suspected militants in Pakistan and elsewhere. Mariner notes that the Obama Administration is making significantly more frequent use of the drone program than the Bush Administration did, and explains why drone strikes may raise complex questions under international human rights and humanitarian law. Accordingly, she offers specific questions that she argues should be asked about the program -- especially regarding possible killings of civilians, and about how targeting decisions are made.Tuesday, April 27, 2010
By JOANNA L. GROSSMAN
Defending Equality in Athletics: The Obama Administration Repeals a Controversial Bush Era Policy
FindLaw columnist and Hofstra law professor Joanna Grossman comments on a recent policy change related to Title IX, which guarantees equal athletic opportunity for both genders, and the regulations promulgated under Title IX. Under the regulations, a college must show, among other things, that it has“fully and effectively accommodated the interests and abilities of the members of the underrepresented sex" -- typically, women. The George W. Bush Administration's policy was that this showing could be made via a student email survey alone. As Grossman explains, the Obama Administration, while keeping email surveys in the mix, is also conducting a more probing analysis to ensure that equality of athletic opportunity truly exists.Tuesday, April 27, 2010
By JULIE HILDEN
The Supreme Court Strikes Down a Law Prohibiting the Creation, Sale, or Possession of Videos of Animal Cruelty: The Decision and Justice Alito's Powerful Dissent
FindLaw columnist, attorney, and author Julie Hilden comments on the Supreme Court's recent decision in US v. Stevens striking down the federal law criminalizing the creation, sale or possession of videos of animal cruelty. Hilden argues that Justice Alito's lone dissent was more convincing than the Court's eight-Justice majority opinion. In particular, she focuses on strong parallels between a possible First Amendment exception that would have allowed the law to stand, and prior First Amendment exceptions that the Court has already carved out in other areas.Monday, April 26, 2010
By VIKRAM DAVID AMAR and ALAN BROWNSTEIN
Can a Public Law School Constitutionally Require a Christian Student Group Not to Exclude Non-Christians and Gay Persons? The Supreme Court Will Decide
FindLaw columnist Vikram Amar and FindLaw guest columnist Alan Brownstein, both U.C., Davis law professors, weigh in on the issues raised by CLS v. Martinez, an important free speech/free association case in which the Supreme Court held oral argument this week. As Amar and Brownstein explain, the case arose because the Hastings College of the Law in San Francisco, a public law school, refused to grant official recognition to the Hastings chapter of the national Christian Legal Society (CLS), on the ground that it will not allow gay students to become voting members or officers. Amar and Brownstein explore several significant aspects of the case, including the relevance, here, of the difference between discrimination based on status and discrimination based on belief; and how these issues would play out with "religion and" clubs such as, say, a Christian Chess Club. They foresee a "doctrinal trainwreck" if some of the conflicts among the Court's precedents are not sorted out soon.Friday, April 23, 2010
By MARCI A. HAMILTON
More on the Supreme Court's CLS v. Martinez Case, Which Asks Whether a Public Law School Can Deny Funding and Recognition to a Student Christian Organization that Excludes Gay Students: A Response to Mr. Baylor
FindLaw columnist and Cardozo law professor Marci Hamilton continues a dialogue regarding the constitutional issues raised by the case of CLS v. Martinez -- which was argued before the Supreme Court this week. The case raises the issue whether a public law school can require that -- to gain official recognition and funding -- student groups essentially accept all comers. The group at issue was the Christian Legal Society (CLS), which sought to exclude gay law students from becoming officers or prayer leaders. Hamilton defended the law school's stance in an earlier column for this site; CLS attorney Gregory Baylor responded; and Hamilton now replies to the points Baylor raised, while also commenting on the oral argument before the Court.Thursday, April 22, 2010
By NEIL F. BUCHANAN
Do Some Americans Pay No Taxes? The Contrived Claims That Everyone Must Help Pay for the Government
FindLaw columnist, Cornell Visiting Scholar, George Washington law professor, and Economics PhD Neil Buchanan addresses the argument -- which has been made recently by USA Today's editorial staff and others -- that every American above the poverty level should pay at least some minimal amount of taxes, so that they will have a stake in our system. The argument was triggered by reports that, currently, forty-seven percent of Americans pay no federal income tax. Buchanan responds with a number of points -- including the point that it will be difficult to define the minimal stake that USA Today would require; the point that even those who earn minimum wage and support families must still pay, percentage-wise, the same state sales tax that much wealthier people pay; and the point that the rich benefit disproportionately from some of the services (such as those of our legal system) that taxes fund.Thursday, April 22, 2010
By MICHAEL C. DORF
Becoming Justice Stevens: How and Why Some Justices Evolve
FindLaw columnist and Cornell law professor Michael Dorf reflects on the career of retiring U.S. Supreme Court Justice John Paul Stevens. In particular, Dorf focuses on Stevens's career on the Court as a case study of how Justices evolve during their tenure. Dorf tackles questions such as why some Justices -- including Stevens, who moved toward more liberal stances on topics such as the death penalty and affirmative action -- tend to move leftward during their years on the Court. He also notes examples of other Justices whose views changed in important ways, and raises the question why Justices often seem to become more liberal: Is the explanation changing social attitudes, a liberal bias in American law, and/or another factor or factors?Wednesday, April 21, 2010
By GREGORY S. BAYLOR
Freedom of All Student Groups at Stake in CLS case at Supreme Court
FindLaw guest columnist and Senior Legal Counsel for the Alliance Defense Fund Gregory S. Baylor -- who is co-representing the University of California, Hastings College of Law chapter of the Christian Legal Society (CLS) before the Supreme Court in a pending case -- explains CLS's argument that U.C., Hastings cannot constitutionally deny the chapter funding because it excludes homosexual students from being officers or prayer leaders. Baylor's column responds to a prior column by FindLaw columnist and Cardozo law professor Marci Hamilton defending the constitutionality of U.C. Hastings's policy.Monday, April 19, 2010
By JOANNE MARINER
UN Security Council Seeks an Eminent Individual for an Impossible Job
FindLaw columnist and human rights attorney Joanne Mariner discusses a new United Nations position: that of the ombudsperson whose job it will be to bring greater fairness to the UN Security Council’s Al Qaeda and Taliban targeted sanctions regime. As Mariner explains, the UN maintains a list of persons who are thought to be affiliated with Al Qaeda or the Taliban, but the delisting process is deeply flawed: Even deceased persons remain on the list; those who want to challenge the fact that they have been put on the list are not afforded due process guarantees; and prior notice is not given before a person is listed. The UN's latest move toward greater fairness has been the creation of the ombudsperson's office, but for reasons Mariner explains, that person will face a difficult, if not impossible, challenge -- in part because he or she will lack true decisionmaking power.Friday, April 16, 2010
By MARCI A. HAMILTON
How Other Religious Organizations Echo the Roman Catholic Church's Rule Against Scandal – A Precept that Entrenches and Perpetuates Cycles of Child Sex Abuse: Church of Jesus Christ of Latter-Day Saints, Part One in a Two-Part Series
In Part One in a two-part series of columns, FindLaw columnist and Cardozo law professor Marci Hamilton contends that children doubtless are being, and have been, sexually abused within large, mainstream religious organizations other than the Catholic Church, and yet their stories have never been told. Hamilton blames the situation on a combination of theological rules of secrecy and -- in some states -- secular legal rules that allow the protection, in litigation, of certain intra-church communications. In this column, Hamilton describes the internal reporting rules of the Church of Jesus Christ of Latter-Day Saints ("LDS") and the law governing reporting in Utah, where LDS is headquartered, and elsewhere.Thursday, April 15, 2010
By SHERRY F. COLB
Federal Appeals Court Rejects Preemption Claim Against California "Downed Animal" Law: A Victory for Animal Rights?
FindLaw columnist and Cornell law professor Sherry Colb discusses a recent decision by the U.S. Court of Appeals for the Ninth Circuit, which allowed, for now, the full enforcement of a California law that bans the slaughter of animals unable to stand or walk to their death without assistance, and requires that slaughterhouses immediately euthanize such animals in a humane fashion. The National Meat Association claimed that the California law was preempted by the Federal Meat Inspection Act, but the Ninth Circuit reversed a district court's preliminary injunction against the California law's enforcement. Colb argues that the Ninth Circuit made the right call on federal preemption, but notes that from an animal rights perspective, the California law does not come close to going far enough in protecting animals.Wednesday, April 14, 2010
By JOANNA L. GROSSMAN
If Sandra Bullock Divorces Jesse James, What Rights or Privileges Will She Have With Respect to His Young Daughter Sunny, Whom She Has Helped Raise?
FindLaw columnist and Hofstra law professor Joanna Grossman considers an important family-law aspect of the Jesse James cheating scandal: If Sandra Bullock divorces James, will she be able to gain either partial custody of, or visitation rights with, Sunny -- James's six-year-old daughter, whom Bullock has played an important role in raising? Grossman explains that Bullock's gaining partial custody of Sunny is unlikely, because James's ex-wife remains Sunny's legal mother. However, Grossman concludes that Bullock may have a strong hope of gaining some legally-guaranteed visitation with Sunny, in part because a family law judge has, in the past, recognized Bullock's vital role in the girl's life. Grossman also explains other approaches that Bullock might take in attempting to get more time with Sunny, such as seeking to be deemed Sunny's "de facto parent," but notes that they are unlikely to succeed.Tuesday, April 13, 2010
By JULIE HILDEN
Constance McMillen and the Prom: A Discrimination Issue, But a Case Decided on First Amendment Grounds
FindLaw columnist, attorney, and author Julie Hilden discusses an interesting aspect of the Constance McMillen prom controversy: Although the case involved discrimination, the ACLU sued on a First Amendment theory. Hilden explains why a Mississippi public school's decision to forbid Constance from bringing her girlfriend to the prom raised First Amendment issues, under Supreme Court doctrine addressing speech mixed with conduct. Hilden also criticizes the judge in Constance's case from declining to grant a preliminary injunction -- even despite his findings that she was likely to win on the law, that she would be injured without such an injunction, and that the injury she would suffer would be greater than the burden the injunction would place on the school board. Hilden faults the judge for being too trusting, and for shifting government obligations onto private parties, by accepting the solution of a private prom, which was not equal-access as the judge had envisioned.Monday, April 12, 2010
By VIKRAM DAVID AMAR and KEVIN R. JOHNSON
Why U.S. News and World Report Should Include a Faculty Diversity Index in its Ranking of Law Schools
FindLaw columnist and U.C., Davis law professor Vikram Amar, and FindLaw guest columnist and U.C., Davis Dean and law professor Kevin Johnson continue their series critiquing the highly influential US News and World Report law school rankings. In a previous column, Amar and Johnson contended that the rankings should take student-body diversity into account; here, they argue that faculty diversity, too, should be a significant factor in the rankings' assessment of law schools' quality, as it contributes to both the quality of education a law school provides its students, and the quality of the law school's faculty's scholarship.Friday, April 9, 2010
By NEIL H. BUCHANAN
High Unemployment and Political Extremism: How Much Worse Might Political Conditions Become if the Job Market Remains Depressed?
FindLaw columnist, Cornell Visiting Scholar, George Washington law professor, and Economics PhD Neil Buchanan comments on the harms, both direct and indirect, that are being caused by our dire unemployment situation. In particular, Buchanan focuses on the risk that continuing high levels of unemployment could trigger significant social unrest: Could recent incidents be the leading edge of a wave of violence and political extremism in America? Buchanan warns that this potential harm of unemployment should not be ignored simply because it is less easily quantified than unemployment's other costs.Thursday, April 8, 2010
By ANITA RAMASASTRY
What's a Domain Name Worth? The Sex.com Auction is Stopped, as Creditors Try to Maximize the Name's Value
FindLaw columnist and U. Washington law professor Anita Ramasastry explains the legal context of the fight over the multi-million-dollar domain name sex.com. She begins by describing the auction that was originally planned; cites estimates of the domain name's value; explains why the auction was halted; and provides the procedural background necessary to understand the federal bankruptcy proceeding that will likely be the mechanism by which the domain name will next change hands.Wednesday, April 7, 2010
By MICHAEL C. DORF
A Federal Judge Rules Against the Government in a Warrantless Wiretapping Suit
FindLaw columnist and Cornell law professor Michael Dorf comments on a recent court decision regarding warrantless wiretapping and the Foreign Intelligence Surveillance Act (FISA). Dorf focuses, in particular, on comparing and contrasting the Obama Administration's stance on this issue with the Bush Administration's prior stance -- pointing out that the stances are much more similar than some might have expected or predicted. He evaluates some factors that might be thought to explain the similarity -- including the fact that the plaintiff organization in the wiretapping case at issue has since been dissolved due to its alleged support for Al Qaeda; the political cost of allowing courts to reject or diminish the state secrets privilege; and the differing institutional dynamics that may change the views of a Senator who later becomes President.Monday, April 5, 2010
By NEIL H. BUCHANAN
Social Security Scare-Mongering and Trust Between Generations: There is No Crisis, Either Short-Term or Long-Term
FindLaw columnist, Cornell Visiting Scholar, George Washington law professor, and Economics PhD Neil Buchanan takes strong issue with media claims -- including claims made in a front-page New York Times article last week -- of a Social Security crisis. Buchanan contends that, contrary to suggestions that Baby Boomers will exhaust Social Security funds, today's younger workers will definitely be able to count on Social Security when they retire. He accordingly argues that the so-called Social Security "tipping point" is, in reality, a statistical blip.Thursday, April 1, 2010