{"id":51813,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/edward-lazarus-archive.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"edward-lazarus-archive","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/edward-lazarus-archive.html","title":{"rendered":"Edward Lazarus Archive"},"content":{"rendered":"\n
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Legal Commentary – Edward Lazarus Archive<\/h1>\n\n\n\n\n\n\n \n
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Archive<\/a><\/h4><\/td>\n <\/tr>\n<\/table>\n\n\n\n
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EDWARD LAZARUS<\/h2> \n
<\/div>Edward Lazarus is a graduate of Yale College and Yale Law School. \nAfter receiving his J.D. in 1987, he served as a law clerk to Judge William A. Norris on \nthe United States Court of Appeals for the Ninth Circuit and to Associate Justice Harry A. \nBlackmun on the Supreme Court of the United States. Since finishing his clerkships, Lazarus \nhas split his time between writing, lawyering, and teaching. He is the author of two highly \nacclaimed books: Black Hills\/White Justice: The Sioux Nation Versus the United States, 1775 \nto the Present<\/i> and Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court<\/i>. \nLazarus’ writing has also appeared in The Atlantic Monthly, U.S. News & World Report, \nThe Washington Post, The Los Angeles Times, and The Chicago Tribune. From 1997 until this \nyear, Lazarus worked as a federal prosecutor in the Central District of California. He is \nnow in private practice (part-time), specializing in appellate litigation. He also has \ntaught various courses at the Cardozo School of Law, the University of California at Davis, \nand Loyola Law School.\n<\/td>\n\n<\/table>\n\n\n\n\n\n\n\n\n
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Reflections on Almost a Decade of Writing for Writ \u2013 and on Some of the Key Legal Reforms For Which I Have Advocated In This Space<\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus comments upon the end of his current tenure as a regular FindLaw columnist, and upon the themes that have emerged in his writings for this site. In particular, Lazarus discusses the three legal eras that exerted the strongest influence on him as he formed his views about the law, and discusses the role of judges, including Supreme Court Justices, and of the Court itself. He also offers an overview of the types of reforms he has favored, including both suggested improvements to the Court’s deliberative process and procedural reforms to other institutions and their own decision-making mechanisms. \n
\n<\/span>\nFriday, April 24, 2009<\/span>\n<\/p>\n\n

The Problem of Supreme Court Justices’ Remaining on the Bench Too Long: Although It’s a Genuine Concern, Recently-Suggested Reforms Are More Problematic Than the Status Quo<\/a>\n\n
\nCommentators generally agree that, over the Supreme Court’s history, there have been some Justices who stayed on the Court too long, when their capacities were waning or failing and they should ideally have retired. Yet there is much disagreement about what, if anything, should be done to address this situation. FindLaw columnist, attorney, and author Edward Lazarus argues that one recent proposal for a solution — by Professor Paul Carrington of Duke Law School — is not the right remedy; Carrington suggests that, upon referral, an ethics council should make recommendations to Justices regarding retirement, and that the impeachment of Justices should be considered if those recommendations are not followed. Lazarus suggests that a better solution would be to institute long but limited (in particular, 18-year) terms for Justices, staggered so that there is a vacancy every two years.\n
\n<\/span>\nTuesday, April 14, 2009<\/span>\n<\/p>\n\n

The AIG Controversy: The Public’s Anger Is Certainly Understandable, \nBut Some Suggested Solutions Would Go Much Too Far<\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus discusses the situation of those at AIG who were not the main culprits — and perhaps were not culprits at all — in causing the company’s current woes, but who are still attracting the attention of the New York and Connecticut Attorneys General. In particular, Lazarus asks whether executives who received “retention bonuses” that still did not match what they might have made elsewhere had they left AIG, and who stayed put in order to try to turn AIG around, should be prosecutors’ targets. He also questions the ethics of threatening to reveal bonus recipients’ identities, in a climate where they may face public vengeance, if they do not return their bonuses — criticizing this strategy as too closely resembling extortion.\n
\n<\/span>\nThursday, March 26, 2009<\/span>\n<\/p>\n\n

Why the Tenth Amendment “Nullification” Arguments Against the Stimulus Bill Are Sheer Folly \u2013 and Why It’s Disturbing that So Many Years After the Civil War, They Are Still Being Raised<\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus argues that calls for states to “nullify” the federal economic stimulus legislation are not only wrong on the merits, but should also be condemned for hearkening back to an ugly era of America’s history when similar cries of a claimed right to nullification were used to defend slavery. Drawing on constitutional history, Lazarus explains why those who claim a right to nullification are misreading the Tenth Amendment, and embracing a principle with the potential, if carried to its logical end, to undo our constitutional system. He also contends that the choice to resort to this faulty argument says a great deal about how desperate Americans are feeling during tough economic times.\n
\n<\/span>\nThursday, March 12, 2009<\/span>\n<\/p>\n\n

The Supreme Court Decides an Important Case the Wrong Way: Why It Held that the Government Lacked the Power to Become a Trustee on Behalf of the Narragansett Tribe of Indians<\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus discusses the Supreme Court’s recent decision narrowly interpreting a federal statute relating to American Indian tribes. The decision held the longstanding statute to apply only to the tribes that were under federal jurisdiction as of 1934, when it was passed — rather than to the tribes that are under such jurisdiction today. Lazarus argues that not only is the ruling wrong as a matter of statutory interpretation, but it also fits into a disturbing pattern of the Supreme Court’s evolution from a time when the Court took special care in, and paid special attention to, tribes’ claims to today’s more modern era in which it is strikingly unreceptive to such claims.\n
\n<\/span>\nThursday, Feb. 26, 2009<\/span>\n<\/p>\n\n

Will Chief Justice Roberts Have to Recuse Himself in One of This Term’s Blockbuster Cases, Wyeth v. Levine? Why Calls for His Recusal May Exemplify a Too-Costly Quest for Perfect Ethical Purity<\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus discusses the interesting issue of when a Supreme Court Justice should recuse himself or herself — with special attention to the question whether Chief Justice John Roberts should recuse himself from one of this term’s leading cases, Wyeth v. Levine, because Roberts holds stock in Pfizer, which is poised to acquire Wyeth. Lazarus argues that the case for Roberts’s recusal is weak, and more generally, that Supreme Court Justices may tend to recuse themselves too often, even when the case for their recusal is unpersuasive. While frequent recusal has its benefits, in avoiding even the appearance of impropriety, Lazarus argues that it has serious costs as well — among them, 4-4 split decisions that give no clear guidance to lower courts on crucial issues of law. Ultimately, he concludes that — in recusal and elsewhere — we may be running the risk of letting the best be the enemy of the good.\n
\n<\/span>\nThursday, Feb. 12, 2009<\/span>\n<\/p>\n\n

How President Obama’s Agenda Parallels That of Chief Justice Roberts: Both Seek to Change the Nature and Tone of Decisionmaking, But Will Each Succeed?<\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus notes an interesting parallel in the kinds of change that President Obama and Supreme Court Chief Justice John Roberts each seek to bring to their respective institutions. Lazarus argues that each has sought to change the tone of decisionmaking, ensuring that it is not as bitterly partisan as it has been in recent years. However, he argues that Obama should take heed of Roberts’s less-than-successful efforts toward this end on the Supreme Court — where Roberts brought the Court together during his first Term as Chief Justice, thanks in part to a docket of less-divisive cases, but the harmony he had established dissolved in the succeeding terms. Accordingly, Lazarus raises the question whether, on the Court and among the political branches, partisanship is too deeply entrenched and bitter to be permanently altered.\n \n
\n<\/span>\nThursday, Jan. 29, 2009<\/span>\n<\/p>\n\n

Who Is the Worst Scoundrel, If All the Allegations Are True \u2013 Blagojevich, Madoff or Dreier?<\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus weighs in on the question of which of the three alleged wrongdoers currently dominating headlines is worst, assuming the claims against all three turn out to be completely true: Governor Rod Blagojevich, who is claimed to have invoked his office in schemes to gain money and other objectives; Bernie Madoff, whose “investments” are now claimed to have been no more than a Ponzi scheme; or Marc Dreier, who is claimed to have used his legal practice as a cover for fraud? In analyzing the question, Lazarus notes how it tests our values: How much worse do we think wrongdoing is when it involves the misuse of public office, versus conduct by private persons? How important is the magnitude of the harm caused, versus the nature of the conduct alleged? How much does motivation matter, as compared to the misconduct itself?\n \n
\n<\/span>\nThursday, Dec. 18, 2008<\/span>\n<\/p>\n\n

Is Obama Truly Like Lincoln – As His “Team of Rivals” and Other Parallels Suggest?<\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus discusses the parallels between President Lincoln and President-elect Obama — starting with Obama’s decision to follow in Lincoln’s footsteps by putting together a “team of rivals” for his incipient Administration, and continuing with an assessment of the effect each has had on the situation of African-Americans. Yet Lazarus also warns that it would be premature to claim that Obama’s ascendance marks the end of the work Lincoln started regarding race — pointing out that, in the states of the former Confederacy, Obama still polled lower than fellow Democrat John Kerry, even as he surpassed Kerry’s showing elsewhere in America.\n \n
\n<\/span>\nThursday, Dec. 04, 2008<\/span>\n<\/p>\n\n

A Federal District Judge’s Clash with a Repeat Litigant: An Unusual Case with Larger Ramifications For How We Define Justice and Fairness<\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus discusses a recent case that divided the U.S. Court of Appeals for the Ninth Circuit. The case arose because a federal district judge deemed a litigant vexatious and barred him from filing further lawsuits unless he met certain requirements. A three-judge Ninth Circuit panel upheld the district judge’s order, but other Ninth Circuit judges strongly disagreed with that result — pointing out that the litigant was correct that Americans with Disabilities Act violations had occurred, and that his claims to have suffered injury as a result, while dubious, had never been put to the test of an evidentiary hearing. In addition to discussing the Ninth Circuit clash, Lazarus also parallels that conflict to a similar clash over vexatious litigants that divided the U.S. Supreme Court in the 1980s.\n \n
\n<\/span>\nThursday, Nov. 20, 2008<\/span>\n<\/p>\n\n

Barack Obama and the Changing World<\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus considers the significance of Barack Obama’s electoral victory, and the reasons why Obama prevailed over McCain. Lazarus also contends that the way Obama conducted his campaign bodes well for how he will fare as president — for during the campaign, Obama steered calmly through various crises, adhering to reasoned judgment and making excellent use of his talent for inspiring others. \n
\n<\/span>\nThursday, Nov. 06, 2008<\/span>\n<\/p>\n\n

A Cautionary Tale for the Idealistic Attorneys Who May Join the New Administration in 2009: Why High-Ranking Government Lawyers Have Too Often Made Things Worse, Not Better<\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus argues that regardless of which candidate is elected president this November, the attorneys who join the new Administration will have to cope with serious moral hazards — hazards that led their many of their predecessors to betray the idealism that led them to Washington in the first place. Lazarus relies on examples ranging from the Starr Report, to the notorious “torture memos,” to the circumvention of Congress to conduct warrantless domestic surveillance, to the firings of a series of U.S. Attorneys based on politics, not performance. He cautions the attorneys who will arrive in Washington after the election not to assume that initial good intentions will make them immune to similar pitfalls. \n
\n<\/span>\nFriday, Oct. 24, 2008<\/span>\n<\/p>\n\n

The Supreme Court, the Election, and the Recession: How Does the Court Fit In, and How Might Changing Circumstances Change the Court and Its Role?<\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus comments on how this year’s upheavals may affect the role of the Supreme Court. WIth no real blockbuster cases coming up, Lazarus predicts that this may be a quiet Term for the Court, during which its work may be overshadowed by America’s economic woes. Yet if the economic crisis is truly as severe as it seems, the Court might eventually face a “constitutional moment” in which it must rework constitutional doctrine to address practical necessity and changing times. \n
\n<\/span>\nFriday, Oct. 10, 2008<\/span>\n<\/p>\n\n

Why John McCain’s Plan to Fire SEC Chairman Christopher Cox Might Well Be Deemed Unconstitutional, Absent Changes at the Supreme Court – and Why Issues Regarding the Independent Federal Agencies Are Once Again Current and Pressing<\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus explains why John McCain’s plan, if elected, to fire the Chair of the SEC won’t work unless the Supreme Court changes its mind about well-established limitations on the Executive Branch’s power over independent agencies. Lazarus notes, however, that at least three current Justices (Scalia, Thomas and Alito) and possibly one more (Roberts) would likely support McCain’s position that under the “unitary executive” theory, the President must be able to fire, as well as appoint, all agency heads. Accordingly, if Court vacancies occurred in a McCain Administration, McCain might well be able to persuade the Court to reverse its own longstanding precedent and adopt his view.
\n<\/span>\nThursday, Sept. 25, 2008<\/span>\n<\/p>\n\n

A New York Times Study of the Effect of Partisan Selection of Immigration Judges Illustrates Why Vetting Works, and Why Ideology Matters<\/a>\n\n
\nFindLaw columnist, attorney and author Edward Lazarus contends that — despite a few prominent examples of Supreme Court Justices whose votes and opinions surprised and disappointed the presidents who nominated them — in general, the vetting of Justices and judges for ideology is typically very effective. Lazarus points out that among the Justices who typically serve as counterexamples, some were not vetted for ideology, but were chosen for other reasons. He also points to a recent New York Times study of immigration judges selected for their politics as evidence that when presidents and their staffs do take ideology into account, the judges they choose tend to be just as conservative or liberal as predicted.
\n<\/span>\nThursday, Aug. 28, 2008<\/span>\n<\/p>\n\n

Texas Executes a Mexican Citizen Despite a Breach of the Vienna Convention: A Decision that Undermines America’s International Standing and Commitment to the Rule of Law<\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus criticizes the State of Texas for executing a prisoner who was a Mexican national without reviewing his case in light of the fact that the state had failed to honor his Vienna Convention right to be advised that he could consult with home-country officials after his arrest. Although the U.S. Supreme Court declined to force Texas to comply with an International Court of Justice order directing that it review the prisoner’s case, Lazarus argues that Texas should have opted to do so anyway — just as Oklahoma did in another Vienna Convention case. Lazarus also argues that Texas’s decision to execute the prisoner without further review mirrors a marked Bush Administration tendency to use power to its utmost, even if a more just and fair solution is available.
\n<\/span>\nThursday, Aug. 14, 2008<\/span>\n<\/p>\n\n

Congress Passes a Resolution Apologizing for America’s History of Slavery and for the Jim Crow System: Why This Symbolic Gesture, like the Recent Senate Resolution Regarding Native Americans, Falls Woefully Short of True Justice<\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus comments on two apology resolutions recently passed by the House and Senate, respectively — one apologizing for slavery and Jim Crow, the other apologizing for the treatment of Native Americans. Lazarus points out that both resolutions are arriving very late in the day, and that neither was accompanied by measures to tangibly improve the situation of those who were wronged and\/or their descendants. He calls for more concrete measures that would make some progress in repaying the debts and addressing the injuries that these resolutions at least acknowledge.
\n<\/span>\nThursday, Jul. 31, 2008<\/span>\n<\/p>\n\n

What the Past Term Reveals About the Roberts Court: Evidence that the Court Is Disturbingly Elitist and Anti-Democratic <\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus argues that, when one examines the major cases of the past Supreme Court Term, a clear theme emerges: The Court ruled in favor of elite institutions, and against more populist institutions and groups. By way of example, Lazarus describes important cases in which the Court ruled in favor of the federal courts, a federal agency, and political party bosses, and ruled against juries and ordinary voters. Lazarus contends that while some of these rulings were correct on the merits, some were not, and that it is definitely worth watching to see if the Court’s elitist inclinations continue in the future.
\n<\/span>\nThursday, Jul. 17, 2008<\/span>\n<\/p>\n\n

What Kind of Justices Might a President Obama Appoint? Senator Obama’s Reactions to Recent Supreme Court Decisions Show that the Answer May Not Be Easily Predictable <\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus looks to Senator Barack Obama’s reactions to the Supreme Court’s recent string of blockbuster decisions for insights into how a possible President Obama might choose new justices for the Court. Lazarus notes that of three key end-of-term decisions, Obama reacted to only one in a traditionally liberal way — agreeing with the Court’s decision that Guantanamo detainees retain the right to invoke the writ of habeas\ncorpus. In contrast, two other Obama positions were traditionally conservative: He supported a decision recognizing individual (not just militia) Second Amendment gun rights, and he opposed a decision holding unconstitutional the application of the death penalty to those convicted of raping children. Lazarus offers insight into what may have caused Obama to adopt these positions, and how Obama’s apparent philosophy regarding the Court’s role may influence his picks for Justices if he is elected president.
\n<\/span>\nThursday, Jul. 3, 2008<\/span>\n<\/p>\n\n

The Controversy Over Judge Alex Kozinski and His Website: Why the Facts, as We Now Know Them, Do Not Provide Reason for This Talented Jurist to Step Down <\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus discusses the recent controversy regarding the Chief Judge of the U.S. Court of Appeals for the Ninth Circuit, Alex Kozinski. While Kozinski was overseeing a trial regarding allegedly obscene works, it was disclosed that his password-protected family website contained sexually-suggestive photos. Although Kozinski recused himself from overseeing the trial and opened a judicial investigation into his own conduct, some are saying that he should step down as Chief Judge. Lazarus strongly disagrees, stressing that Kozinski’s website’s photos were meant to be private, and were not illegal to send or possess, and that Kozinski has a long record as a truly exceptional judge.
\n<\/span>\nThursday, Jun. 19, 2008<\/span>\n<\/p>\n\n

The Supreme Court’s Term So Far: An Unusual Degree of Agreement, With Liberals Joining “Conservative” Rulings and Vice-Versa <\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus discusses how, this term, the Supreme Court has defied many observers’ expectations by avoiding ideology-driven 5-4 rulings in a number of very significant cases. Lazarus describes the cases that led liberals to vote on the conservative side, and vice-versa, and considers various explanations for why the Court has achieved more agreement than expected. Is it just this term’s mix of cases? Is it a result of the Justices’ preferences regarding statutory interpretation or deference to administrative agencies being at odds with their ideological leanings? Is it that both sides have something to gain from the less-divided opinions? Lazarus analyzes each possible explanation.
\n<\/span>\nFriday, Jun. 6, 2008<\/span>\n<\/p>\n\n

The California Supreme Court’s Decision Equalizing Marriage for Gay and Straight Couples: Did the Court Overstep? <\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus offers an interesting perspective on the recent decision by the California Supreme Court holding that same-sex couples must be granted the right to marry, just as opposite-sex couples are. Lazarus contends that the differences between California’s Constitution and the U.S. Constitution undermine any parallels that commentators might be tempted to make between the California decision and U.S. Supreme Court decisions such as Roe v. Wade and Lawrence v. Texas. Thus, even those who would excoriate this decision had it been issued by the U.S. Supreme Court as an interpretation of the U.S. Constitution, must think carefully about whether the same analysis can be applied to the way the California Supreme Court interpreted California’s own, and substantially different, Constitution.
\n<\/span>\nFriday, May. 23, 2008<\/span>\n<\/p>\n\n\n\n

McCain’s Remarks Regarding the Kind of Judges He Would Nominate As President: His Surprising Failure to Take Into Account the Rightward Turn of the Supreme Court and of the Law In Recent History <\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus argues that it is anomalous for presidential candidate John McCain to decry what he claims is liberal judicial activism and promise to appoint more conservative federal judges, in light of the fact that the Supreme Court is now conservative-dominated. Lazarus contends that there are so few examples of true liberal judicial activism nowadays, that McCain has been forced to rely on two that are strikingly weak: a federal appellate holding that the Supreme Court ultimately vacated, regarding the words “under God” in the Pledge of Allegiance; and the Court’s holding on the juvenile death penalty, which simply put a few outlier States in line with the rest of the States and most of the rest of the world. Lazarus suggests that with a conservative Supreme Court solidly in place, McCain would be better served by dropping this non-issue, and moving on from old rhetoric to new approaches that better reflect pressing, genuine modern conflicts such as the one between liberty and security.
\n<\/span>\nFriday, May. 09, 2008<\/span>\n<\/p>\n\n\n\n

Five Decades of Fighting Over the Constitutionality of the Death Penalty: What Can We Learn from This Lengthy War? <\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus discusses the Supreme Court’s recent death penalty decision — holding that Kentucky’s three-drug lethal injection protocol does not violate the Eighth Amendment’s ban on cruel and unusual punishment — in the context of the Court’s history. Tracking the evolution of the Court’s death penalty jurisprudence since the mid-1960s, Lazarus explains why this ultimate punishment has continued to divide the Court, often bitterly. In addition, he analyzes how that bitter split affected the Justice’s opinions in the lethal injection decision, Baze v. Rees.
\n<\/span>\nThursday, Apr. 24, 2008<\/span>\n<\/p>\n\n\n\n

Are Courts the Right Place to Address Large-Scale Corporate Wrongdoing? The “Light” Cigarette Case as an Example of the Limits of Law <\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus discusses the recent decision by the U.S. Court of Appeals for the Second Circuit to shut down class-action litigation regarding alleged fraud in the promotion of “light” cigarettes. Lazarus contends that the decision is a striking example of the limits of the law’s ability to remedy mass torts. Providing a historical perspective, Lazarus covers both the power and limits of the class-action vehicle to address corporate misconduct — citing evidence that there are serious risks in both under- and over-regulating business practices.
\n<\/span>\nFriday, Apr. 11, 2008<\/span>\n<\/p>\n\n\n\n

A Recent Supreme Court Decision on the Vienna Convention Reaffirms that Justice Stevens, at Eighty-Eight, Remains A Force to Be Reckoned With <\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus discusses a recent Supreme Court decision regarding the Vienna Convention, to which the U.S. is a signatory, but upon which Congress has not acted. The complex case before the Court involved not only the Convention, but also the U.N. Charter, a decision by the International Court of Justice (ICJ) on the rights of foreign arrestees in the U.S., and a Presidential Memorandum directing Texas courts to comply with the ICJ decision. As Lazarus explains, in the midst of all the complexity, Justice John Paul Stevens distinguished himself with a concurrence that was both insightful and ingenious — showing the eighty-eight-year-old Justice’s continuing excellence as a jurist.
\n<\/span>\nThursday, Mar. 27, 2008<\/span>\n<\/p>\n\n\n\n

The Long Shadow of Bush v. Gore: Are Its Lessons Relevant to the Decision Whether to Seat Florida and Michigan Democratic Delegates? <\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus weighs in on the lessons we should take from the Bush v. Gore Supreme Court decision, and which way these lessons should cut in the controversy about whether Michigan and Florida delegates will vote at the Democratic Convention. Although the Clinton campaign has argued that Bush v. Gore counsels in favor of counting the delegates’ votes, Lazarus argues that the decision’s true message concerns integrity, consistency, and setting clear, fair rules ahead of time that are later neutrally and fairly enforced.
\n<\/span>\nMonday, Mar. 17, 2008<\/span>\n<\/p>\n\n\n\n

As Retired Justice O’Connor Speaks Out Against the Problems Plaguing State Judicial Elections, the Supreme Court Still Refuses to Allow Reform <\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus points out an interesting irony: Retired Justice Sandra Day O’Connor is actively publicizing the problems plaguing state judicial election campaigns, yet it is largely because she retired, and was replaced by Justice Alito, that the current Supreme Court is hostile to campaign finance reform. Lazarus argues, in addition, that while O’Connor is correct to target the problems raised when judges are elected, her proposed solution — making initial appointments based on merit, and then having judges’ terms renewed by election — is less than ideal.
\n<\/span>\nThursday, Feb. 28, 2008<\/span>\n<\/p>\n\n\n\n

The Role of the Superdelegates: Could They Thwart the Choice of a Majority of Democratic Primary Voters? <\/a>\n\n
\nFindLaw columnist Edward Lazarus discusses the role of the superdelegates — the 796 individuals who have been put in the spotlight because they may well cast the deciding votes as to whether Barack Obama or Hillary Clinton will be the Democratic presidential nominee. Lazarus begins by considering whether, as some have suggested, it will be a Bush v. Gore-like situation if Obama gets more votes (and thus more delegates) but Clinton is nevertheless the nominee because she is the superdelegates’ choice. Lazarus then considers the superdelegates’ role, argues that they should not make early commitments, and suggests which factors they may rightly take into account in choosing between the two candidates.
\n<\/span>\nThursday, Feb. 14, 2008<\/span>\n<\/p>\n\n\n\n

Barack Obama, Hillary Clinton, and the Debate Over How Much Supreme Court Decisions Truly Matter <\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus joins the ongoing debate over how much blockbuster Supreme Court decisions such as Roe v. Wade and Brown v. Board of Education truly have influenced American society, in light of the backlash they evoked, the possibility that similar legislative action would have been taken instead, and the intransigence of factors such as residential segregation. Lazarus discusses the candidacies of Senators Clinton and Obama, as well as the prior candidacy of former Senator Edwards, as evidence that such Court precedents may have unexpected positive ramifications, and thus be more influential than they might seem.
\n<\/span>\nThursday, Jan. 31, 2008<\/span>\n<\/p>\n\n\n\n

The Supreme Court and Public Opinion: Will They Soon Diverge, If a Democrat Is Elected This Year? <\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus discusses the potential schism that may be created if a Democratic President is elected this year: For the first time in quite a while, Lazarus explains, the Supreme Court’s ideological politics may soon be out of sync with popular political sentiment. Lazarus tracks the periods during which the Court has been famously in and out of step with popular opinion, beginning with the famous era when the Court for a time defied FDR in his attempt to put into place New Deal programs. He also explains why the views of all three of the leading Democratic primary candidates would make for a sharp contrast with those of the Roberts Court.
\n<\/span>\nFriday, Jan. 18, 2008<\/span>\n<\/p>\n\n\n\n

Two Important Supreme Court Anniversaries for 2008: The Cases of Trop v. Dulles, Concerning Citizenship, and Cooper v. Aaron, Concerning Civil Rights Enforcement<\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus focuses on two important Supreme Court decisions that will each turn 50 in 2008: Trop v. Dulles, and Cooper v. Aaron. Trop established that a military deserter could not be constitutionally stripped of his citizenship, but the Court split on the constitutional basis for the holding. Cooper established that when the Supreme Court told Southern public schools to allow African-American students to attend, it meant business, and thus substantially bolstered the Court’s power. Lazarus explains why, fifty years later, both decisions still matter.
\n<\/span>\nThursday, Jan. 03, 2008<\/span>\n<\/p>\n\n\n\n

Was Former Senator Mitchell Justified in Naming Names in His Report on Major League Baseball? <\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus argues that, despite a spate of criticism, former Senator George Mitchell actually had a strong basis to include in his recent report the names of the baseball players his sources had named as using steroids. Lazarus contends that the common claim that the allegations against the players were mere hearsay is inaccurate, from a legal perspective, since some of the allegations fell into a long-established hearsay exception. He also notes a number of other factors that, he argues, made it reasonable for Mitchell to opt to rely on his sources’ claims about players’ steroid use.
\n<\/span>\nThursday, Dec. 20, 2007<\/span>\n<\/p>\n\n\n\n

The Current Supreme Court Term, and the Pivotal Role of “Swing” Justice Anthony Kennedy <\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus argues that the current spate of criticism targeting Supreme Court Justice Anthony Kennedy is unfair. Lazarus notes that there is truth to some of the criticisms offered by leading commentators such as Jeffrey Rosen, Jeffrey Toobin, and Jan Crawford Greenburg, but also contends that these evaluations are far too extreme and ultimately unfair. Moreover, Lazarus notes that the trend of unjustly attacking Kennedy has been matched by a trend of overgenerously praising the Court’s prior, now-retired “swing Justice,” Sandra Day O’Connor. Lazarus suggests it is unfair to put O’Connor on a pedestal, as she had her own faults, and to deprecate Kennedy, ignoring his important strengths.
\n<\/span>\nThursday, Dec. 06, 2007<\/span>\n<\/p>\n\n\n\n

Why Attorney General Nominee Michael Mukasey Should Be Confirmed, Even Despite His Refusal to Condemn Waterboarding as Illegal Torture <\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus argues that the Senate should vote to confirm nominee and former U.S. District Judge Michael Mukasey as Attorney General, despite Mukasey’s noncommittal stance on the use of “waterboarding” in interrogation. In support of his position, Lazarus points out that Mukasey has said that Congress has the power to outlaw waterboarding on the grounds that it is torture, and that, if Congress did so, the President would be bound to abide by the law Congress passed. In addition, Lazarus argues that from a pragmatic standpoint, Mukasey is a better Attorney General nominee than one might have expected from the current Administration.
\n<\/span>\nThursday, Nov. 08, 2007<\/span>\n<\/p>\n\n\n\n

The Upcoming Supreme Court Lethal Injection Death Penalty Case: How It Will Likely Illustrate the Serious Ideological Divisions That Continue to Separate the Justices<\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus discusses how the Supreme Court’s upcoming case testing the constitutionality of lethal injection is likely to divide the Justices. Lazarus describes not only the results the individual Justices are likely to favor, but also the widely-differing theories of constitutional interpretation that will lead them to these particular results. He predicts that, as in many cases before the Court, Justice Anthony Kennedy may well be the swing vote — but suggests Kennedy may be torn between his strong moral sense and his disinclination to open the gates to numerous other challenges to the death penalty and its methods.
\n<\/span>\nThursday, Sep. 27, 2007<\/span>\n<\/p>\n\n\n\n

The Trouble with Guilty Pleas: Lessons of the Senator Larry Craig and John McTiernan Scandals <\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus comments on the recent attempts by Senator Larry Craig and Hollywood film director John McTiernan to take back their prior guilty pleas. Lazarus contends that, despite the unusual prominence of these two defendants, their cases are in a sense typical, and thus shed light on our country’s system of plea bargaining. Lazarus explains why defendants may opt to plead guilty based on panic (Craig’s claim) or despite the fact that evidence against them may have arisen from an unconstitutional search (McTiernan’s claim).
\n<\/span>\nThursday, Sep. 13, 2007<\/span>\n<\/p>\n\n\n\n

Now That Attorney General Gonzales Has Resigned, It’s Time to Focus Very Closely on the Administration’s War-on-Terror Policies <\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus discusses what the nation’s top priorities should be in the wake of the resignation of Attorney General Alberto Gonzales. Lazarus contends that the first priority should be a substantive public debate about the liberty\/security tradeoffs in the “war on terror,” and the secrecy that currently limits the public’s knowledge. The second priority, he contends, should be finding a new Attorney General who will head a renewed and far less partisan Department of Justice. The third and last priority, Lazarus suggests, should be the ongoing investigation into the scandals of Gonzales’s tenure — which, while significant, will be of limited aid in deciding what to do as we go forward.
\n<\/span>\nThursday, Aug. 30, 2007<\/span>\n<\/p>\n\n\n\n

Karl Rove’s Departure from the White House: How Rove’s and Others’ Bad Behavior Suggests a Set of Golden Rules for Government, Applicable Regardless of Which Party Is In Charge <\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus employs John Rawls’s concept of the “veil of ignorance” — in this case, postulating a veil obscuring one’s party loyalty — to consider which structural rules for government would be chosen if party affiliation were not an issue. On a number of issues, including a series relating to the Department of Justice and to confirmation proceedings for federal judicial nominees, Lazarus suggests that consensus would be very possible if the relevant players put party loyalty aside.
\n<\/span>\nThursday, Aug. 16, 2007<\/span>\n<\/p>\n\n\n\n

What Will the Outcome of the 2008 Election Mean for the Supreme Court?Why One Outcome Could Change the Court Profoundly; the Other, Not at All <\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus discusses how the outcome of the 2008 election may affect the Supreme Court. Pointing out that the only three Justices who seem at all likely to retire between now and 2016 all belong to the Court’s liberal wing, Lazarus concludes that unless Democrats occupy the White House for three straight terms, it is likely that the retirement of one or more Justices will further entrench and solidify the current Court’s conservative bent. Moreover, he notes, if a liberal Justice retires and is replaced by a conservative, Justice Anthony Kennedy may lose his prime position on the Court as a frequent “swing vote” in close cases.
\n<\/span>\nThursday, Jul. 19, 2007<\/span>\n<\/p>\n\n\n\n

President Bush’s Decision to Commute Scooter Libby’s Sentence: Why It’s Indefensible, Even if One Agrees with Republican Critiques of the Sentence <\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus argues that President Bush’s decision to commute former Cheney aide Scooter Libby’s sentence is indefensible, even if one accepts Republican critiques of the sentence. In support of his argument, Lazarus invokes the Administration’s decision to flout DOJ Guidelines regarding commutations, and notes that even if one believes that Libby’s sentence was too long in light of the crimes of which he was convicted, the proper solution was to shorten his prison time, not erase it entirely.
\n<\/span>\nThursday, Jul. 05, 2007<\/span>\n<\/p>\n\n\n\n

The Transformation of Justice Ruth Bader Ginsburg, As the Roberts Court Shifts from Harmony and Consensus to Bitter Division <\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus describes the recent change in the Roberts Court — which has moved from relative harmony to sharp division through a series of 5-4 opinions addressing issues such as “partial birth” abortion and women’s right to challenge sex-based discrimination in pay. Soon, Lazarus predicts, the court will also split over the issue of the use of race in the assignment of public school pupils to particular schools within a district. Lazarus argues that the most fascinating aspect of the Roberts Court’s transformation has been the parallel transformation of Justice Ruth Bader Ginsburg. Since Ginsburg dedicated her prior life to litigating women’s equality, Lazarus argues that it is no surprise that she not only dissented in the recent Title VII and abortion cases, but also went so far as to make a strong statement by reading her dissents from the bench.
\n<\/span>\nThursday, Jun. 21, 2007<\/span>\n<\/p>\n\n\n\n

Scooter Libby’s Sentence: While It Was Justifiable, a More Lenient Sentence Could Also Have Been Appropriate Under the U.S. Sentencing Guidelines <\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus provides a detailed explanation of why Judge Walton meted out a 30-month sentence to former Cheney aide Scooter Libby. Libby was convicted of perjury and related offenses arising from the Special Counsel investigation into the leak of the fact that Valerie Plame was a covert CIA agent. However, as Lazarus points out, neither Libby nor anyone else has been charged with crimes based on the leak itself. Lazarus explains why, nonetheless, the U.S. Sentencing Guidelines (which are now advisory, not mandatory, for Judge Walton) advise taking into account not only the severity of the perjury offense, but the severity of other potential offenses that were investigated, but not charged.
\n<\/span>\nThursday, Jun. 07, 2007<\/span>\n<\/p>\n\n\n\n

An “Independent Attorney General”? In the Wake of the Controversy over U.S. Attorney Firings, the Next President Will Need to Set Guidelines for White House\/Justice Department Interactions<\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus looks beyond the controversy over the White House’s and Attorney General Alberto Gonzales’s roles in the firing of eight U.S. Attorneys, and asks a longer-term question: What guidelines should future administrations — beginning with that of the president to be elected in 2008 — set in order to ensure that White House\/Justice Department interactions are proper? Lazarus explains the extent to which Attorneys General are properly political, and the ways in which their politicization can go to far. He argues that while guidelines are needed, moving to a system of fixed tenure that does not correspond to a particular Administration — the system used for FBI Directors — would be a mistake.
\n<\/span>\nThursday, May. 10, 2007<\/span>\n<\/p>\n\n\n\n

The Supreme Court’s Split Decision to Uphold the Federal “Partial-Birth Abortion” Ban: Why, Despite the Court’s Disclaimers, It Will Be Hugely Influential <\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus weighs in on the potential impact of the Supreme Court’s recent split decision upholding a federal statute banning “partial birth” abortion. Lazarus argues that the Court should have left intact the relative state of peace imposed by 1992’s decision in Planned Parenthood v. Casey, which both reaffirmed women’s right to abortion as established by Roe, and increased states’ latitude to regulate abortion prior to the third trimester. He also contends that Justice Kennedy’s opinion for the Court serves the interests of neither women, nor those who want to protect fetuses, for it will lead to saving not a single fetus, while potentially imperilling women.
\n<\/span>\nThursday, Apr. 26, 2007<\/span>\n<\/p>\n\n\n\n

The Supreme Court as Umpire?: How the Global Warming Decision Illuminates the Role We Ask the Justices to Play <\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus discusses Chief Justice Roberts’s famous comparison of a Supreme Court Justice to an umpire at a baseball game — in the context of the recent “global warming” decision, Massachusetts v. EPA, which split the Justices 5-4. Lazarus argues that when it comes to issues like the standing question raised in that decision, it’s not accurate to compare a Justice to an umpire deciding if a ball was pitched within the strike zone, for the Justices are resolving an issue in which their individual viewpoints rightly play a crucial role. However, Lazarus notes, even if it was improper to see the Court as umpiring the “global warming” decision, that seemed to be the role many among the public wanted it to play, and claimed it had played.
\n<\/span>\nThursday, Apr. 12, 2007<\/span>\n<\/p>\n\n\n\n

Why Full Disclosure Is Far More Valuable than An Apology In Areas Ranging From DOJ Scandals, to Iraq War Votes <\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus calls for more accountability and greater disclosure in the scandals regarding FBI overuse of National Security Letters and DOJ’s firing of Attorney Generals. Lazarus argues that while, in current political discourse, an apology can often play a strong role in ending a controversy, that shouldn’t be the case, for the truly relevant questions are why the underlying incidents occurred, and how they can be prevented from happening again. Lazarus accordingly contends that Iraq War opponents should not focus so heavily on the fact that John Edwards has apologized for his Iraq War resolution vote, while Hillary Clinton has not apologized for hers.
\n<\/span>\nThursday, Mar. 29, 2007<\/span>\n<\/p>\n\n\n\n

Supreme Court Justices’ Increased Propensity to Speak Publicly: It May Be Positive At Times, But When the Justices Speak Out On Bush v. Gore, They Only Do Further Damage<\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus comments on the phenomenon of Supreme Court Justices speaking publicly much more frequently than they have in the recent past. Lazarus argues that while some types of comments by the Justices may have a positive effect, comments such as those by Justice Scalia and former Justice O’Connor that, in effect, urge America to forget about the Bush v. Gore decision and move on, are damaging to the Court.
\n<\/span>\nTuesday, Mar. 06, 2007<\/span>\n<\/p>\n\n\n\n

Assessing Chief Justice William Rehnquist’s Tenure on the Supreme Court: Is Jeffrey Rosen’s Assessment Unduly Rosy? <\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus takes strong issue with legal journalist and George Washington law professor Jeffrey Rosen’s assessment of the tenure of former Supreme Court Chief Justice William Rehnquist. Rosen, in his recent book on the Court, portrays Rehnquist as having ultimately “moderated the ideological passions he had displayed during his first years on the Court,” and displayed devotion to “majority rule.” In contrast, Lazarus argues that Rehnquist’s choices and decisions are much better explained by his canny use of strategy and his strong political agenda, than by any sincere moderation of his early conservative views — and that Rehnquist was happy to ignore majority rule when he disagreed with the majority’s policy choice.
\n<\/span>\nThursday, Feb. 15, 2007<\/span>\n<\/p>\n\n\n\n

Truth, Lies, and The Libby Trial: How Our Society Treats Lies and Those Who Tell Them,
and Why Truth-Tellers Are Sometimes Punished More Harshly than Liars<\/span><\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus discusses the various ways — in both criminal and civil court, and through contempt citations — in which we punish both lies, and truth-telling that is not paired with the revelation of a reporter’s sources. In arguing that our hierarchy of punishments, civil and criminal, often seems quite odd, Lazarus relies on contemporary examples ranging from the Libby perjury\/obstruction trial, to the false claim of Barack Obama’s supposed attendance at a madrassa, to the BALCO steroids scandal, to the suit by Rep. Boehner against Rep. McDermott for using a phone conversation illegally taped by third parties.
\n<\/span>\nThursday, Feb. 01, 2007<\/span>\n<\/p>\n\n\n\n

The Trial of Lewis “Scooter” Libby <\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus discusses the trial of former Cheney aide Lewis “Scooter” Libby, in connection with the Special Counsel investigation of the disclosure that Valerie Plame was a CIA agent. Lazarus points out that Libby — charged with obstruction of justice and perjury — is really being charged with a cover-up, not the underlying crime of disclosure. In addition, Lazarus notes, there may actually have been no underlying crime here — since the disclosure seems to have been inadvertent. Nevertheless, Lazarus argues, lies to the government in the course of the cover-up would, if proven, be very serious crimes, especially in light of the need to trust the government in this war-on-terror era.
\n<\/span>\nThursday, Jan. 18, 2007<\/span>\n<\/p>\n\n\n\n

The Massachusetts Legislature Finally Allows an Anti-Same-Sex-Marriage Constitutional Amendment to Be Voted Upon:
Why Opting to Fulfill Their Legal Duty Was the Right Thing to Do<\/span><\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus discusses the recent legislative standoff, which was finally broken, in Massachusetts. After the Goodridge decision legalizing same-sex marriage in the state, an anti-same-sex marriage constitutional amendment was proposed. But rather than put it to a vote, the Massachusetts legislature — all but a small minority of the members of which oppose the amendment — invoked a rule to block it. Lazarus argues that after Massachusetts’ highest court accurately declared — but without means to enforce its declaration — that the legislature had to put the amendment to a vote, the legislature did the right thing in complying, to uphold the rule of law.
\n<\/span>\nThursday, Jan. 04, 2007<\/span>\n<\/p>\n\n\n\n

The Supreme Court Decides Whether Race-Based Pupil-Assignment Systems Are Constitutional <\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus discusses the recent oral argument in, and the constitutional issues raised by, twin cases regarding the use of race-based “tiebreakers” in the assignment of pupils to particular public schools within a school district. Lazarus notes that, based on the questioning at oral argument, the Supreme Court may be poised to both rule against the school districts and adopt a line of reasoning that, he argues, will betray the true legacy of Brown v. Board of Education.
\n<\/span>\nThursday, Dec. 07, 2006<\/span>\n<\/p>\n\n\n\n

Is Joe Lieberman the New Anthony Kennedy And Will the New Congress Function Like the Closely-Split, Seesawing Supreme Court? <\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus parallels the role that Senator Joseph Lieberman will likely assume in the new Senate, with the role of “swing vote” that Justice Anthony Kennedy currently plays on the Supreme Court. Lazarus also examines the sharp, seemingly 50-50 division in our political system, which makes us prone to the “swing vote” dynamic, and argues that even seeming centrists tend to hold a combination of polarized positions; what makes them centrists, he says, is that they are chimeras, combining strong “red state” positions (for example, pro-war) with strong “blue state” positions (for example, pro-choice).
\n<\/span>\nThursday, Nov. 09, 2006<\/span>\n<\/p>\n\n\n\n

When Constitutions Falter: The Limits of Law, as Illustrated by the Debacle in Iraq <\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus contrasts the American constitutional experience with that of Iraq. While acknowledging that America, too, had a bumpy ride with its founding document — junking the Articles of Confederation in favor of the Constitution, and saving the Constitution’s Union only through Civil War — Lazarus notes the reasons for much greater pessimism about Iraq’s ability to sustain a constitutional order.
\n<\/span>\nThursday, Oct. 26, 2006<\/span>\n<\/p>\n\n\n\n

The Key Issue of Judicial Independence:
With Conservatives’ Rhetoric Effective, and Supreme Court Justices Concerned, How Should Progressives Respond?<\/span><\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus discusses the important issue of judicial independence: With seven Supreme Court Justices recently attending a conference regarding judge-bashing, this topic is now front and center. Lazarus argues that conservatives’ rhetorical assault on judges — targeting their “activism” — has been extremely effective, but generally inaccurate. He urges progressives to come up with their own slogans for the way they believe judges should interpret the Constitution — with his own suggestion, “faithful constructionism.”
\n<\/span>\nThursday, Oct. 12, 2006<\/span>\n<\/p>\n\n\n\n

The New Supreme Court Term: Justice Kennedy’s Pivotal Role in Abortion and Race Cases <\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus discusses the important role “swing” Justice Anthony Kennedy is expected to play over the Supreme Court term beginning this October. In two key hot-button areas of race and abortion, Lazarus explains, Kennedy’s vote may be controlling — yet observers are uncertain as to which side of cases he will favor. As Lazarus explains, the cases where Kennedy may play the greatest role concern “partial birth” abortion and race-based assignment of public school pupils.
\n<\/span>\nThursday, Sep. 28, 2006<\/span>\n<\/p>\n\n\n\n

How Has 9\/11 Affected American Constitutional Law? The Three Intersecting Cross-Currents that Have Affected Liberty, Security, and Government Accountability <\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus discusses three key issues that 9\/11 has raised relating t constitutional law: The issue of the liberty\/security balance; the issue of when the President can act unilaterally independent of, or in an override of, Congress; and the issue of the public’s right to know what the Executive is doing to enhance the functioning of democracy and the accountability of officials. Lazarus argues that the Bush Administration’s aggressive pursuit of unilateral Presidential power has wrongly shifted the focus from these other two key post-9\/11 issues.
\n<\/span>\nFriday, Sep. 15, 2006<\/span>\n<\/p>\n\n\n\n

This Year’s New Supreme Court Clerks: Why Are Only Twenty Percent Women?
The Question, and the Unfortunate Conversation It Caused<\/span><\/a>\n\n
\nFindLaw columnist, attorney and author Edward Lazarus discusses a controversy recently noted in the New York Times and the popular Volokh Conspiracy legal blog, regarding the scarcity of women among the Supreme Court law clerks to serve for the coming Term. Lazarus notes and criticizes the Larry-Summers-like suggestion that there may just not be enough female “geniuses” to fill the clerking ranks, and explains why, in any case, intelligence is only one of many factors that leads to a particular candidate’s getting a clerkship.
\n<\/span>\nThursday, Aug. 31, 2006<\/span>\n<\/p>\n\n\n\n

Government Lawyers’ Role in the War on Terror: Do They Have a Duty to Argue What’s Right, Not Just What They Deem Legally Defensible?
And Should the “Constitutional Avoidance” Doctrine Play a Role?<\/span><\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus discusses the role of Office of Legal Counsel lawyers in the war on terror — and in particular, the ethics of their raising the “constitutional avoidance” doctrine. The doctrine, often invoked by the federal courts, counsels interpreting an ambiguous statute to avoid constitutional problems. But should the Executive be able to invoke this doctrine in a self-serving way, to protect from Congress what it views as its own domain? Lazarus explains why use of the doctrine by Executive attorneys is more troubling, from a consitutional standpoint, than use of the doctrine by federal courts.
\n<\/span>\nFriday, Aug. 18, 2006<\/span>\n<\/p>\n\n\n\n

Why The “Compromise” Foreign Surveillance Wiretap Legislation Pending in Congress Is No Compromise: The Bill, and Senator Specter’s Strange Reversal on the Issue <\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus discusses the proposed legislation now before the Senate Judiciary Committee that aims to solve the scandal of President Bush’s authorization of warrantless wiretapping. Lazarus argues that the bill — touted as a compromise — is not only a wholesale embrace of the Bush position regarding the President’s power to secretly surveil, but also a bid to control a future court decision so that it is decided in the President’s favor. He asks why Senator Specter — the Committee’s Chairman and recently a harsh critic of the surveillance program — seemingly supports the proposed legislation.
\n<\/span>\nThursday, Jul. 20, 2006<\/span>\n<\/p>\n\n\n\n

Assessing the Supreme Court at the Close of Its Current Term: New Justices, Public Critiques, and the Law Clerk Issue <\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus discusses a number of developments relating to the Supreme Court’s most recent Term. Lazarus evaluates the influence of Justices Alito and Roberts; considers the grounds for various critiques of the Court by politicians, academics, and others; and focuses in particular on the issue of law clerks’ role on the Court, and whether it is too extensive, and too substantive.
\n<\/span>\nThursday, Jul. 06, 2006<\/span>\n<\/p>\n\n\n\n

The Supreme Court Grants Review in Two Cases Regarding Public Schools’ Use of Race In Pupil Placement – And Thus Confronts the Question of How To Define Brown’s Legacy <\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus discusses the Supreme Court’s decision to grant review in two cases — one from Kentucky, and another from Washington State — that raise the issue of whether school districts can use race in pupil placement in the interest of ensuring integrated schools. Lazarus explain how this issue implicates the legacy of Brown v. Board of Education — inviting the Court to decide more precisely how Brown should be interpreted. He also explains why the recent changes in the Supreme Court’s composition may be significant here.
\n<\/span>\nThursday, Jun. 08, 2006<\/span>\n<\/p>\n\n\n\n

Is Chief Justice Roberts Correct that Unanimous Supreme Court Opinions Are Inherently Desirable?
Why Split Decisions and Passionate Dissents Are Sometimes Better<\/span><\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus discusses Chief Justice Roberts’ contention, in a recent graduation speech, that unanimity in Supreme Court opinions — a marked trend for the Roberts Court so far — is desirable. Lazarus contends that contrary to Roberts’s claim, unanimity isn’t inherently desirable; it depends on the case. He draws evidence for his claim from Court history — acknowledging opinions whose unanimity was a virtue, but also those where dissenters made the right choice. Lazarus also comments on whether the Roberts’ court’s trend of unanimous decisions is likely to continue.
\n<\/span>\nThursday, May. 25, 2006<\/span>\n<\/p>\n\n\n\n

What Kind of Justice Will Samuel Alito Be? A Recent Death Penalty Decision Provides Some Insights <\/a>\n\n
\nFindLaw columnist, attorney and author Edward Lazarus discusses the way that both Chief Justice Roberts and Justice Alito have defied the expectations created by their records, and in their confirmation hearings. Lazarus focuses in particular on the first decision authored by Alito, for a unanimous Court, in a death penalty case (one in which Lazarus was among the attorneys representing the petitioner). He notes interesting aspects of both the decision’s substance and its minimalist style.
\n<\/span>\nThursday, May. 11, 2006<\/span>\n<\/p>\n\n\n\n

The Mary McCarthy Case: The Accusation against the Alleged CIA Leaker Underlines the Question of How to Protect Both Security and Democracy <\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus discusses the Mary McCarthy case as a way into the larger question of how to balance the dual interests of security and the need for the citizenry, in a democracy, to be well-informed about the workings of its government. Lazarus argues that this balance has long been kept stable by a governmental disinclination to go after leakers aggresssively, and by the possibility a Congressional investigation will be triggered when leaks of important information occur. But in this Administration, Lazarus argues, a same-party Congress and aggressive pursuit of leakers may be dangerously upsetting a delicate balance.
\n<\/span>\nThursday, Apr. 27, 2006<\/span>\n<\/p>\n\n\n\n

Should Graphic Testimony About 9\/11 Have Been Heard By the Moussaoui Sentencing Jurors?The Continuing Controversy over the Use of Victim Impact Evidence <\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus looks at the use of graphic testimony about 9\/11 by prosecutors arguing that Zacarias Moussaoui should be sentenced to death. Lazarus explains how and why the Supreme Court flip-flopped on the admissibility of “victim impact evidence” such as this — ultimately deeming such evidence admissible. He also discusses the effect the particular 9\/11 evidence that has been introduced may be having in the Moussaoui case.
\n<\/span>\nFriday, Apr. 14, 2006<\/span>\n<\/p>\n\n\n\n

The Real Chief Justice Roberts: Conciliator or Divider?
A Recent Fourth Amendment Holding Indicates That He May Be More Like Rehnquist Than Previously Thought<\/span>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus discusses the significance of a recent Fourth Amendment decision that sharply fractured the new Roberts Court. Why did a court that had been marked, until now, by cordial and witty oral arguments, and surprising unanimity on divisive issues, suddenly fall apart into sniping factions? Lazarus contends that the fault lines were always there, and will be for the foreseeable future — and offers an explanation as to why.
\n<\/span>\nWednesday, Mar. 29, 2006<\/span>\n<\/p>\n\n\n\n

The Moussaoui Trial: It’s High Time The Death Penalty Is Taken Off the Table <\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus comments on recent events in the Moussaoui sentencing trial — specifically, the judge’s admonishment of the government for misconduct regarding potential witnesses. Lazarus argues that this and other disturbing events in the trial, mean that the death penalty should no longer be an option, with Moussaoui instead facing life imprisonment for his crimes.
\n<\/span>\nThursday, Mar. 16, 2006<\/span>\n<\/p>\n\n\n\n

The Controversy over the Bush Administration’s Ports Deal:
An Illustration of the Resilience of American Democracy, In Which Even Non-Issues May Lead to Needed Political Corrections<\/span><\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus discusses the Bush Administration’s ports deal as an example of the strange but fortunate way our system works. Lazarus deems the ports deal itself essentially a non-issue — especially in the context of what he argues are major, unaddressed security issues that continued to plague all of our ports, regardless of who administers them. But he also tracks how this minor issue is having what he argues is a beneficial influence on our politics — and serving as an illustration of how our system often works well after a small trigger sends it into motion.
\n<\/span>\nThursday, Mar. 02, 2006<\/span>\n<\/p>\n\n\n\n

The Liberty-Security Tradeoff:Virtually Everyone Accepts that Liberty Should At Times Be Sacrificed for Security, So Why Won’t Progressives Propose How and When? <\/a>\n\n
\nFindLaw columnist, attorney and author Edward Lazarus examines how the controversy over the President’s secret authorization of warrantless wiretapping of domestic phone calls has played out politically. Lazarus contends that progressives have misplayed their hand when it comes to Administration scandals like this one, in two basic ways: By failing to take into account the reality that Americans overwhelmingly favor at least some tradeoff between liberty and security, and by failing to propose ways that the balance can be struck that would constitute alternatives to the Administration’s own programs. Lazarus fits this issue into the larger political issue of how voters at the political center are courted, or alienated, by progressives and conservatives, respectively.
\n<\/span>\nThursday, Feb. 02, 2006<\/span>\n<\/p>\n\n\n\n

What Substantive Lessons Should We Learn from the Alito Hearings? <\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus comments on the upshot of the Alito hearings. Lazarus argues that while the hearings will almost certainly result in Alito’s confirmation, they still represent a victory of sorts for liberals — in that Alito, and John Roberts before him, felt it necessary to portray themselves as moderate, and thus to disavow a number of right-wing legal stances, during their hearings. The upshot, Lazarus suggests, will be a furor if Alito or Roberts — or both — betray their confirmation representations and actually become radical conservatives during their years on the Court. Lazarus also contrasts the Alito and Bork hearings, to show how what is required of conservative nominees has evolved.
\n<\/span>\nThursday, Jan. 19, 2006<\/span>\n<\/p>\n\n\n\n

How Much Authority Does the President Possess When He Is Acting as “Commander In Chief”?
Evaluating President Bush’s Claims Against a Key Supreme Court Executive Power Precedent<\/span><\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus analyzes the key Supreme Court precedent relating to President Bush’s claims that his power as Commander in Chief allowed him to order warrantless wiretapping. The precedent, as Lazarus explains, involves President Truman’s seizure of the nation’s steel mills in wartime — an action the Court held went beyond his powers, even though Congress and the public were immediately notified.
\n<\/span>\nThursday, Jan. 05, 2006<\/span>\n<\/p>\n\n\n\n

Warrantless Wiretapping: Why It Seriously Imperils the Separation of Powers, And Continues the Executive’s Sapping of Power From Congress and the Courts <\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus puts the scandal over President Bush’s warrantless wiretapping order in context — arguing that it fits into a general practice by which the current Executive has bypassed Congress and the federal courts based on an expansive interpretation — supplied by its own Office of Legal Counsel — of its own power. Lazarus contends that this practice deals a severe blow to the separation of powers our Constitution mandates.
\n<\/span>\nThursday, Dec. 22, 2005<\/span>\n<\/p>\n\n\n\n

Why Judge Alito’s View on “One Person, One Vote” May Be Even More Important than His View on Roe v. Wade <\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus argues that if Judge Samuel Alito still has the same qualms about the “one person, one vote” line of Supreme Court cases that he long ago expressed, then that should be a major issue for Alito’s confirmation. Lazarus argues that not only was this line of cases rightly decided, but the modern Supreme Court also has made a major error in not being more active in policing blatant gerrymandering. If Alito will continue this error, Lazarus suggests, that ought to be a major strike against his confirmation.
\n<\/span>\nFriday, Dec. 09, 2005<\/span>\n<\/p>\n\n\n\n

Torture, Litmus Tests, and the Future of American Law:
Will the Battle Over Government Accountability Define this Generation of Lawyers?<\/span><\/a>\n\n
\nFindLaw columnist, attorney and author Edward Lazarus argues that with the security\/civil liberties balance shifting in favor of security, ensuring accountability in the exercise of executive power has become all the more important. Lazarus points out that only on the assumption of trustworthiness, can anyone support the government’s ability to use powers such as the power to torture, the “rendition” power to turn over suspects to foreign governments that use torture, and the increased surveillance powers granted by the Patriot Act. Thus, he argues, liberals and conservatives ought to be able to come together to focus on mechanisms of accountability that will ensure trustworthiness.
\n<\/span>\nTuesday, Nov. 29, 2005<\/span>\n<\/p>\n\n\n\n

With Indictments Expected in Plame-Gate,
The Culture of Scandal Returns to Washington -But We May Pay a Price in the Downfall of A Good Man<\/span><\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus takes a look at the arguments made by liberals and conservatives relating to Special Counsel Fitzgerald’s “Plame-gate” grand jury investigation, and finds both sets of arguments troubling, in their own ways. To liberals who insist that the idea Saddam had WMD was never anything but a pretext, Lazarus responds by arguing it’s likely that some — such as possible grand jury target Lewis “Scooter” Libby — believed in good faith that there were indeed WMD. To conservatives who urge that if the underlying offense can’t be proven, then obstruction of justice and perjury shouldn’t be charged either, Lazarus points to directly contrary DOJ policy, and the reasons for that policy.
\n<\/span>\nThursday, Oct. 27, 2005<\/span>\n<\/p>\n\n\n\n

Overall, The Miers Nomination Is Troubling – But It Does Have One Virtue <\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus discuss the rifts that the Supreme Court nomination of Harriet Miers has opened within the Republican Party. He argues that the intra-party arguments these rifts have prompted ought to shatter two common myths about judging: that judges “find” law and do not “make” it, and that a judge’s values and experience are irrelevant to his or her job. Never more than now, Lazarus contends, has it been clear that judging has a political dimension; if it did not, he asks, then why would Republicans seek, in effect, assurances that Miers will vote to overturn Roe v. Wade?
\n<\/span>\nThursday, Oct. 13, 2005<\/span>\n<\/p>\n\n\n\n

Can We Tell In Advance What Kind of Supreme Court Justices Nominees Will Make?
Justice Blackmun’s Example Suggests that Our Guesses May Well Be Very Wrong<\/span><\/a>\n\n
\nFindLaw columnist, attorney and author Edward Lazarus discusses the guesses we can — and cannot — reliably make about what Judge John Roberts’ tenure on the Supreme Court will be like, if his nomination to the Chief Justice spot is confirmed. Drawing on the example of Justice Harry Blackmun, Lazarus explains why a Justice’s views may evolve, while he or she is on the Court, in a way that is not easily predictable during the confirmation process.
\n<\/span>\nThursday, Sep. 29, 2005<\/span>\n<\/p>\n\n\n\n

After Two Days of Hearings on Supreme Court Nominee John Roberts, What Should Senate Democrats’ Next Move Be? <\/a>\n\n
\nAfter two days of hearings on the nomination of Judge John Roberts to be Chief Justice of the United States, what are Senate Democrats’ choices, moving forward? FindLaw columnist, attorney, and author Edward Lazarus outlines three options. He argues that — while information on Roberts is scanty — based on what is known so far, the best choice is for Democrats to vote to confirm Roberts, and to focus their attention on President Bush’s next nominee.
\n<\/span>\nThursday, Sep. 15, 2005<\/span>\n<\/p>\n\n\n\n

John Roberts as the Anti-Robert Bork: How Roberts’s Nomination, and Conservatives’ Senate Hearings Strategies, Reflect Lessons Learned from the Bork Debacle <\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus takes us back over two decades, to the Robert Bork hearings, to find the genesis of the strategies that conservatives and liberals are likely to use in, respectively, pushing and opposing the confirmation of Supreme Court nominee John Roberts. Lazarus points out the ways in which Republicans are avoiding all the mistakes they once made with Bork — and explains why Democrats may not get as far by harping on Roe v. Wade, as they may hope.
\n<\/span>\nFriday, Aug. 05, 2005<\/span>\n<\/p>\n\n\n\n

The John Roberts Supreme Court Nomination: If Democrats Fight His Confirmation, They’ll Be Very Unlikely to Win <\/a>\n\n
\nFindLaw columnist, attorney and author Edward Lazarus discusses the nomination of Judge John Roberts to replace Supreme Court Justice Sandra Day O’Connor. Lazarus predicts that, barring any big surprises, the affable and highly intelligent Roberts will be confirmed despite Democratic opposition. However, Lazarus also contends that the Senate confirmation process — the first for a Supreme Court Justice in over a decade — should still be thorough, and will still be valuable, even if Roberts’ confirmation is virtually a sure thing.
\n<\/span>\nThursday, Jul. 21, 2005<\/span>\n<\/p>\n\n\n\n

Sandra Day O’Connor’s Retirement: A Strong Statement That It’s Acceptable to Leave An Important Job An Important Job to Care for a Spouse Who Is Very Ill <\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus focuses on one of the less-remarked, but, as he argues, very significant aspects of Supreme Court Justice Sandra Day O’Connor’s retirement: It appears to be the first, in recent times, in which a Justice retired to care for an ailing spouse. Lazarus argues that the decision will serve as a laudable model for those women and men who seek to leave careers, temporarily or permanently, to act as caretakers for family members. He also notes that the decision is entirely in keeping with O’Connor’s emphasis on work-life balance (she also took a hiatus to raise her children, returning to once again excel in her profession), and with her warm, hardy character. Lazarus counsels that in the confirmation proceedings for O’Connor’s potential successor, decisions that — like this one — reveal character ought to be as signficant as those that reveals the nominee’s views on the law.
\n<\/span>\nThursday, Jul. 07, 2005<\/span>\n<\/p>\n\n\n\n

Is Mark Felt, a.k.a. “Deep Throat,” a Laudable Whistleblower, or an Immoral Snitch?
A Question that Will Define His Place In History, And Influence Our View of Anonymous Sources<\/span><\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus weighs in on the controversy over Mark Felt: Is the man who’s now revealed himself as “Deep Throat” a hero or a villain? Lazarus considers the arguments that Felt was a villain, but rejects each as unpersuasive. Lazarus explains why he feels Felt is a hero, and why — more broadly — the media’s ability to opt to use anonymous sourcing ought to be preserved.
\n<\/span>\nThursday, Jun. 09, 2005<\/span>\n<\/p>\n\n\n\n

Why Police and the FBI Should Be Wary to Use the “Person of Interest” Designation:
The Label Destroys Lives, Yet Provides Little Benefit<\/span><\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus discusses the shift in law enforcement tactics from publicly using the term “suspect” to publicly using the term “person of interest.” He argues that because everyone knows “person of interest” is code for “suspect,” the public use of the “person of interest” designation is just as destructive as public use of the “suspect” designation. Relying on several key examples of high-profile and lower-profile cases in which a “person of interest” was exonerated, Lazarus argues that the costs of using the label publicly are rarely worth incurring. He urges that the Department of Justice should adopt a policy under which the “person of interest” label would be publicly used only in rare cases, such as child abductions, in which danger to the victim remains, and time is of the essence.
\n<\/span>\nThursday, May. 26, 2005<\/span>\n<\/p>\n\n\n\n

In Public Remarks, Two Supreme Court Justices Defend the Federal Courts’ Actions in the Schiavo Case – and One Attacks the Court and His Fellow Justices <\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus assesses Supreme Court Justice Antonin Scalia’s unusual recent public attack on the Court. Scalia suggested that the Court deserves the criticism it has recently faced, because its decisionmaking is unprincipled and ill-reasoned. Lazarus argue that he is right in part, and wrong in part in his critique — and also that Scalia himself is contributing to the very problems he is pointing out.
\n<\/span>\nThursday, Apr. 28, 2005<\/span>\n<\/p>\n\n\n\n

The Schiavo Case’s Fallout Must Not Make Us Lose Sight of a Key Truth:
Our Imperial Judiciary’s Problems Transcend Partisanship <\/span><\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus contends that while liberals may be right to disagree with Tom DeLay’s recently-voiced perspectived, they should pause and consider his basic point: that the federal judiciary is in need of reform. Lazarus defends the federal judges who, he argues, were put in an impossible position by DeLay and others when Terri’s Law was passed, but he also urges that other federal judges — especially those on the Supreme Court — should be taken to task for some of their decisionmaking. Arguing that the Rehnquist Court, especially, has an anti-democratic, “imperial” point of view, Lazarus contends that reform is needed — and should garner bipartisan support.
\n<\/span>\nThursday, Apr. 14, 2005<\/span>\n<\/p>\n\n\n\n

Why Congress’s Intervention Predictably Didn’t Help the Schindlers:
Putting Federal Judges In an Unfair Pressure Cooker In the Terri Schiavo Case<\/span><\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus argues that Congress’ decision to pass Terri’s Law wrongly gave Terri Schiavo’s parent, the Schindlers, false hope — for, he contends, it was predictable that Terri’s Law would only lead to another court loss for the Schindlers. As Lazarus explains, Terri’s Law put federal judges in a pressure cooker, and failed to supplement the Schindlers’ case by creating any new arguments for them to press in federal court. Accordingly, he says, it was a foregone conclusion that the Schindlers’ old arguments would fail.
\n<\/span>\nThursday, Mar. 31, 2005<\/span>\n<\/p>\n\n\n\n

Congress’ Decision to Subpoena Former Baseball Players to Testify About Steroid Use:
Why The Hearings Are Not Only Perfectly Legal, But Also a Good Idea<\/span><\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus addresses a series of legal and policy objections that have been raised in response to Congress’ choice to subpoena former ballplayers for hearings on steroid use in baseball. Lazarus contends that this subject is well within Congress’ investigative power; that players’ privacy is not being infringed; that there is no issue of conflict with ongoing criminal investigations; and, finally, that such hearings can serve several worthwhile goals.
\n<\/span>\nThursday, Mar. 17, 2005<\/span>\n<\/p>\n\n\n\n

The Supreme Court Strikes Down the Death Penalty For Juvenile Offenders:
A Morally Good Result, Supported by Less-Than-Convincing Legal Reasoning<\/span><\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus discusses this week’s decision by the U.S. Supreme Court that the death penalty may not be constitutionally inflicted upon juveniles, with the age cut-off now being eighteen years old. Lazarus explains how the Court’s death penalty theories have evolved, and the role some key Justices — O’Connor, Kennedy, and Scalia — have played in these debates. He also fits this controversy into a much larger one, centering on to what extent, if any, individual Justices may legitimately consult their own moral values when they decide constitutional cases.
\n<\/span>\nThursday, Mar. 03, 2005<\/span>\n<\/p>\n\n\n\n

A Remedy for Executive Branch Lies About Budget Item Costs:
Should Congress Pass a Sarbanes-Oxley Act For the Government?<\/span><\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus points out an unfortunate contrast: If a CEO lies about budget items, prosecution can follow, but if an Executive Branch official does so, all we can do is vote him or her out — unless, of course, the official is appointed, not elected, in which case, there is little remedy. Lazarus points to the dramatic consequences of underestimating the costs of war, or of Social Security reform — and asks whether it might make sense to hold government officials much more closely accountable for the statements they make about budgets and expenses.
\n<\/span>\nThursday, Feb. 17, 2005<\/span>\n<\/p>\n\n\n\n

Did September 11 Cause a Constitutional Paradigm Shift?
Why Conservatives Argue that It Did, and Why Their Views Are Likely to Have Some Lasting Effect<\/span><\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus examines several shifts in legal thinking from generation to generation, and considers whether the current shift towards favoring security and executive power, and away from favoring liberty and judicial power, may be the legacy of this generation of lawyers. Lazarus notes that reports of the initial enthusiasm of government lawyers over the Bush Administration “torture memos” may be a more reliable indication of their true feelings, than later recantations by the Administration.
\n<\/span>\nThursday, Feb. 03, 2005<\/span>\n<\/p>\n\n\n\n

The Supreme Court’s Sentencing Guidelines Decision:
Its Logic, and Its Surprisingly Limited Practical Effect<\/span><\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus discusses the Supreme Court’s recent decision, holding that the U.S. Sentencing Guidelines will now be advisory, not mandatory. Lazarus predicts that the decision will have far less practical effect than many have suggested, for sentencing judges are likely to comply with even advisory Guidelines. He also explains a strange facet of the two-part opinion: One justice — Justice Ginsburg — joined both majorities, so that one might think she would have written the whole opinion but, in fact, she authored neither part.
\n<\/span>\nFriday, Jan. 21, 2005<\/span>\n<\/p>\n\n\n\n

Will Clarence Thomas Be the Court’s Next Chief Justice?
Why It’s Very Unlikely That Bush’s Advisors Will Ultimately Recommend His Nomination <\/span><\/a>\n\n
\nGiven Chief Justice Rehnquist’s contineud absence from the Supreme Court, many have suggested President Bush may soon need to appoint a new Chief Justice — and that the top candidate may be Clarence Thomas. FindLaw columnist, attorney, and author Edward Lazarus disagrees, however, contending that, in the end, Bush probably will not opt to nominate Thomas. Lazarus takes issue with many liberal critics’ views of Thomas — contending that Thomas is, in fact, capable, intelligent, and no Scalia clone, and that his silence at oral argument should not make us question his talents as a justice. But he also argues that Thomas would be a poor chief Justice pick for other reasons.
\n<\/span>\nThursday, Jan. 06, 2005<\/span>\n<\/p>\n\n\n\n

The Most Important Legal Developments of 2004:
Gerrymandering, Torture, Guantanamo, and Equality for Gays<\/span><\/a>\n\n
\nWhat were the key legal developments of the past, tumultuous year? FindLaw columnist Edward Lazarus picks out a number of important headline-making events — from the Supreme Court’s decision to let gerrymandering continue, to the Department of Justice’s Office of Legal Counsel memo advising that torture is legal, to the cases addressing the legal rights of detainees at Guantanamo and elsewhere, to the historic Massachusetts Supreme Judicial Court decision holding that under the state’s constitution, equality means an equal right to marriage for gay persons. Lazarus also notes that New York Attorney General Eliot Spitzer’s recent campaign against corporate crime and fraud may usher in a new era of state-based regulation.
\n<\/span>\nThursday, Dec. 23, 2004<\/span>\n<\/p>\n\n\n\n

Life Tenure for Federal Judges: Should It Be Abolished? <\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus considers the advantages and disadvantages of a constitutional amendment eliminating life tenure for Supreme Court Justices, and replacing it with a relatively lengthy — perhaps twenty-year — term, with no reappointment. Lazarus debunks the myth that older judges are inherently lesser — pointing out that many stars of the federal bench are on the older side — but asks if nonetheless, limited terms may be the right way to go.
\n<\/span>\nThursday, Dec. 09, 2004<\/span>\n<\/p>\n\n\n\n

Why Democrats Lose at the Polls When They Win In the Courts:
Judicial Decisions’ Influence on Recent Presidential Elections <\/span><\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus examines the influence of judicial decisions — both very recent and decades-old — in the 2004 and 2000 elections. Lazarus asks whether Democrats have spent too much time devising litigation strategies, and not enough time building voting constituencies. He suggests that with state and federal courts becoming more and more conservative, and with Democrats paying at the polls for any victories they get in the courts — such as the Massachusetts Supreme Judicial Court’s decision allowing gay marriage in the state — Democrats may do better focusing on grass roots constituency-building, than on constitutional litigation.
\n<\/span>\nThursday, Nov. 25, 2004<\/span>\n<\/p>\n\n\n\n

The Enduring Bipartisan Lessons of the 2004 Election:
The Need for Constitutional Reform, and for Supreme Court Intervention on Gerrymandering<\/span><\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus argues that there are two lessons of the 2004 election that ought to trigger bipartisan support for change. He notes that the current Electoral College system has now endangered both Democratic and Republican popular vote winners. He also contends that the Supreme Court’s failure to intervene to curb partisan political gerrymandering only exacerbates already strong political divisions, and contributes to the scarcity of moderates in Congress — phenomena both parties ought to worry about.
\n<\/span>\nThursday, Nov. 11, 2004<\/span>\n<\/p>\n\n\n\n

The Supreme Court as a Voting Issue:
Why Both Presidential Candidates’ Positions are Disappointing<\/span><\/a>\n\n
\nFindLaw columnist, attorney and author Edward Lazarus asks this provocative question: Why aren’t the candidates as articulate and well-grounded on Supreme Court issues as they are on national security issues — especially given that whoever wins the election will likely appoint several key Justices to the Court? Focusing on the recent, second Presidential Debate, Lazarus takes issue with both the President’s claim to favor strict constructionism, and Senator Kerry’s seeming unwillingness to indicate more specifically the kind of Justices he might appoint.
\n<\/span>\nThursday, Oct. 14, 2004<\/span>\n<\/p>\n\n\n\n

The Supreme Court’s Excessive Secrecy: Why It Isn’t Merited <\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus critiques the Supreme Court’s strong emphasis on secrecy. As Lazarus explains, the issue has arisen in a recent controvery over a Vanity Fair piece on Bush v. Gore by legal reporter David Margolick — whose sources included a number of former Supreme Court clerks. Lazarus argues that the controversy should be re-focused — to concentrate not on the clerks’ breach of their oaths, but on Margolick’s reportage suggesting the way Bush v. Gore was decided was highly inappopriate for a supposedly nonpartisan Court.
\n<\/span>\nThursday, Sep. 30, 2004<\/span>\n<\/p>\n\n\n\n

The Judicial Opinion Denying a Request by “Jane Roe” to Reopen Roe v. Wade:
A Key Opportunity to Look Back on Abortion’s Legal History<\/span><\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus looks back on abortion rights from 1973, when Roe v. Wade was decided, to the present — when a federal appellate court has rebuffed an attempt by “Jane Roe” (Norma McCorvey) to reopen her more-than-thirty-year-old case. Lazarus argues that during this period, the watershed moment was the Supreme Court’s wise 1992 decision, Planned Parenthood v. Casey, reaffirming (though modifying) Roe by a vote of 6-3.
\n<\/span>\nThursday, Sep. 16, 2004<\/span>\n<\/p>\n\n\n\n

The Crucial Criminal Cases that Will Start the New Supreme Court Term:
Testing the Federal Sentencing Guidelines’ Constitutionality<\/span><\/a>\n\n
\nWill the Federal Sentencing Guidelines have to be completely overhauled — and if so, is this a good thing? FindLaw columnist, attorney and author Edward Lazarus comments on these issues — which are raised by two crucial cases that the Supreme Court will hear on October 4, the first day of its new Term, as well as a blockbuster decision the Court issued last Term. Lazarus discusses what we can, and cannot, expect from a federal sentencing system — and how much discretion judges and prosecutors, respectively, ought to have in sentencing.
\n<\/span>\nThursday, Sep. 02, 2004<\/span>\n<\/p>\n\n\n\n

The Issues Governor McGreevey’s Resignation Raises:
Stigma, Acceptance, and the Difference Between Legal and Social Change<\/span><\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus considers whether the gay rights movement, too, will have to learn the lesson of the African-American civil rights movement: Legal change is not enough. Unless a change in social attides accompanies, or follows upon, Supreme Court pronouncements and other legal steps, a movement seeking the vindications of the rights of members of a particular group, will not fully achieve its goals. And how quickly will social attitudes towards gays change in the shadow of legal decisions on gay marriage and other topics? Lazarus looks to the recent controversy over New Jersey Governor Jim McGreevey’s resignation for some barometer of how quickly change will — or will not — come.
\n<\/span>\nThursday, Aug. 19, 2004<\/span>\n<\/p>\n\n\n\n

How the Recent Democratic National Convention Altered the Party’s Message About Our Constitution and What It Means <\/a>\n\n
\nFindLaw columnist, attorney and author Edward Lazarus discusses the view of the Constitution embodied by the key speeches made by Senate hopeful Barack Obama and Presidential candidate and Senator John Kerry at the recent Democratic National Convention. Lazarus contends that the speeches herald a newly honed and evolved constitutional vision — one that emphasizes that equal treatment is a matter of respect for others, and deemphasizes affirmative action; one that stresses America’s status as a Union, not just a collection of individual states; and one that allows, but does not trumpet, the right to abortion.
\n<\/span>\nThursday, Aug. 05, 2004<\/span>\n<\/p>\n\n\n\n

Can Juveniles Constitutionally Be Executed?
The Supreme Court Will Consider the Question in a Pending Case<\/span><\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus discusses a case that could become one of the hallmarks of the coming Supreme Court Term. The case, Roper v. Simmons, asks whether the Court still believes — in light of both statistical evidence as to states’ death penalty statutes, and psychological evidence as to juveniles — that the juvenile death penalty is unconstitutional. As Lazarus explains, this case is bound to divide the Court — for it plays into a longstanding rift that relates to not only the death penalty, but the Court’s role in our system.
\n<\/span>\nFriday, Jul. 23, 2004<\/span>\n<\/p>\n\n\n\n

Looking Back at The Past Supreme Court Term:
The Rehnquist Revolution Comes to a Standstill, For Now<\/span><\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus discusses the past Supreme Court term, and predicts what next year’s term may look like. With respect to this past term, Lazarus argues that it represents a standstill in the “Rehnquist Revolution” — the movement towards a conservative agenda that has occurred over the past twelve years. Lazarus contends that on many legal topics, moderate Justices Kennedy and O’Connor have apparently gone as far as they are willing to go on the spectrum between liberal and conservative jurisprudence — and the past Court term reflects this.
\n<\/span>\nThursday, Jul. 08, 2004<\/span>\n<\/p>\n\n\n\n

A Death Penalty Case the Supreme Court May Review Shows the Dysfunction of the Federal Judiciary When It Comes to Capital Punishment <\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus discusses an important death penalty case in which the U.S. Supreme Court has already issued one opinion, but which the Court may nevertheless review again. Lazarus contends that the Court should indeed review this case — which raises the issue of racial discrimination in the prosecution’s exercise of peremptory (that is, no-cause-given) challenges in jury selection. He argues that the Court needs to remedy an injustice, send a broader message, and address blatant lower court disobedience of the Court’s prior opinion.
\n<\/span>\nThursday, Jun. 24, 2004<\/span>\n<\/p>\n\n\n\n

A Little-Noticed Supreme Court Case Represents A Huge Injustice:
The Court Refuses to Free A Man Serving Six Years on a Two-Year Sentence<\/span><\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus discusses a recent Supreme Court decision that he argues deserves much more attention than it has attracted. As Lazarus explains, the decision involves a Texas trial in which a man was sentenced to 16 1\/2 years in prison when, based on the facts and law, everyone concerned agrees that he should have been sentenced to a maximum of 2. Although both the federal district and federal appellate court have tried to correct this mistake, the U.S. Supreme Court has interposed delay — and left the man, who has already served 6 years, languishing in jail for even longer. Lazarus asks how this could have occurred — and whether the current Court has left common sense and compassion behind.
\n<\/span>\nThursday, Jun. 10, 2004<\/span>\n<\/p>\n\n\n\n

The Iraqi Prisoner Abuse Scandal:
It Shows Why the Court Must Decide In Favor of Judicial Review in the Guantanamo Cases<\/span><\/a>\n\n
\nFindLaw columnist, attorney and author Edward Lazarus poses an interesting question: What effect, if any, will — and should — the Iraqi prisoner abuse evidence have on the Guantanamo, Padilla and Hamdi cases before the Supreme Court? Lazarus argues that the Iraqi prisoner abuse photos blow a hole through the Bush Administration’s argument that the Executive Branch can be trusted to humanely detain those it deems “enemy combatants” without judicial review. Even with court martial possible, Lazars points out, the Iraq abuses still occurred; what will happen if Guantanamo and other detainees are denied access to the writ of habeas corpus?
\n<\/span>\nThursday, May. 13, 2004<\/span>\n<\/p>\n\n\n\n

Evaluating Brown v. Board of Education on Its Fiftieth Anniversary
Are the Revisionists Right About This Landmark Decision?<\/span><\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus discusses — and offers a rebuttal to — recent claims that the Supreme Court’s decision in Brown v. Board of Education was far less significant than has been believed. Lazarus surveys revisionists’ arguments, but concludes that Brown — along with a host of Warren Court decisions that endorsed the same principles — deserves its landmark status.
\n<\/span>\nThursday, Apr. 29, 2004<\/span>\n<\/p>\n\n\n\n

Postwar Constitution-Building:
Comparing America’s Situation with Iraq’s Yields a Dismal Picture of Iraq’s Likely Future<\/span><\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus offers a provocative comparison to illuminate what will probably happen in Iraq after order is, hopefully, restored. Lazarus compares and contrasts the conditions in America after the Revolutionary War, when the Constitution was being drafted, and in postwar Iraq, which must draw up a new Constitution for its new government. Lazarus notes how close America’s own Constitution came to breaking, with our Civil War, and expresses a pessimistic view as to whether Iraq’s Constitution will successfully bridge the country’s own strains and divisions.
\n<\/span>\nThursday, Apr. 15, 2004<\/span>\n<\/p>\n\n\n\n

Is Dubya’s Presidency Even Poorer Than Tricky Dick’s?
A Review of John Dean’s Worse Than Watergate<\/span><\/a>\n\n
\nFindLaw book reviewer, attorney, and author Edward Lazarus reviews the controvesrial recent book on the George W. Bush Administration by FindLaw columnist and former counsel to the president John Dean. Lazarus takes issue with Dean’s contention that the Bush White House compares unfavorably even with the Nixon White House. But Lazarus finds much to praise in Dean’s specific and knowlegeable account of why he believes the Bush White House’s penchant for secrecy and, he argues, its pattern of misrepresentation, are Nixonian.
\n<\/span>\nFriday, Apr. 09, 2004<\/span>\n<\/p>\n\n\n\n

Scalia’s Refusal to Recuse:
Why His Lengthy Explanation Is Completely Unconvincing, And Why Bush v. Gore Provides Even More Reason to Recuse<\/span><\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus takes aim at five specific points made by Justice Antonin Scalia in Scalia’s twenty-page explanation of why he would not recuse himself from a case involving Vice-President Dick Cheney based on his duck-hunting trip with Cheney. In addition, Lazarus argues that Bush v. Gore — which acreated reasonable public skepticism as to Scalia’s impartiality, and resulted in not only Bush, but Cheney, taking office — is another reason Scalia should have opted for recusal.
\n<\/span>\nThursday, Apr. 01, 2004<\/span>\n<\/p>\n\n\n\n

The Real Story Behind the Release of Justice Blackmun’s Papers and Tapes
What They Reveal, and Do Not Reveal, About the Man and the Court<\/span><\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus — who was once a clerk for Supreme Court Justice Harry Blackmun — discusses a new angle on the public release of Justice Blackmun’s papers and tapes. Much has been made of all that the Blackmun material has revealed, but what was left out? Lazarus explains how Justice Blackmun’s personality shaped the record he left. Lazarus also discusses the persective Blackmun’s papers afford on the crucial 5-4 Court decision not to overrule Roe v. Wade.
\n<\/span>\nThursday, Mar. 18, 2004<\/span>\n<\/p>\n\n\n\n

The Changing Battlefield in the Gay Marriage War:
The Progress of a Civil Rights Movement Outside and Within the U.S. Supreme Court<\/span><\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus explains the long, strange trip that has taken us from 1986’s decision in Bowers v. Hardwick, to 2003’s decision in Lawrence v. Texas, overruling Bowers. How did a Supreme Court that voted 5-4 to uphold a law criminalizing gay sodomy, come to strike down an anti-sodomy law 6-3 — with even the dissenters on the defensive on gay rights issues? Lazarus argues that on gay rights, a legal revolution and a moral revolution have occurred contemporaneously.
\n<\/span>\nThursday, Mar. 04, 2004<\/span>\n<\/p>\n\n\n\n

Why Justice Scalia Is Wrong To Refuse to Recuse Himself From a Case Involving Dick Cheney and His Energy Task Force <\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus discusses a recent, controversial decision by Supreme Court Justice Antonin Scalia not to recuse himself from a case involving Vice President Dick Cheney. Lazarus contends that Scalia should have recused himself because the legal standard — which asks if Scalia’s “impartiality might reasonably be questioned” — is plainly fulfilled by the undisputed fact that Scalia and Cheney recently went on a five-day duck hunting trip together.
\n<\/span>\nThursday, Feb. 05, 2004<\/span>\n<\/p>\n\n\n\n

Paul O’Neill’s Insider Account of the Bush Administration:
Why It Landed Him In the Midst of A Government Investigation<\/span><\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus discusses the controversy that has followed on the heels of the publication of Ron Suskind’s book The Price of Loyalty, which discusses the experiences of former Bush Administration Treasury Secretary Paul O’Neill. The book provoked a storm of criticism and a government investigation of O’Neill. Lazarus argues that this kind of counterattack is both typical when insiders’ books are published, and unfortunate, since the publication of such books often serves the public interest.
\n<\/span>\nThursday, Jan. 22, 2004<\/span>\n<\/p>\n\n\n\n

Why The U.S. Court of Appeals Opinion in the Jose Padilla Case Is Not Anti-Government, But Pro-Democracy <\/a>\n\n
\nFindLaw columnist, attorney and author Edward Lazarus discusses a recent “war on terrorism”-related decision by the U.S. Court of Appeals for the Second Circuit. In the ruling, the Court of Appeals held that the President could not unilaterally — that is, without Congressional approval — indefinitely detain U.S. citizen Jose Padilla. Padilla was arrested in the U.S. and is alleged to have been involved in a “dirty bomb” conspiracy involving members of Al Qaeda. Lazarus argues that the court’s decision was wise, for the issue of indefinite incommunicado detention of U.S. citizens in military prisons is the kind of issue on which Congress’s — and the people’s — voice should be heard.
\n<\/span>\nThursday, Jan. 15, 2004<\/span>\n<\/p>\n\n\n\n

The Supreme Court Considers Sophisticated Political Gerrymandering
Are Voting Rights Preserved If Boundaries are Drawn to Ensure Particular Election Outcomes?<\/span><\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus discusses a Pennsylvania political gerrymandering case on which the Supreme Court heard oral argument this month. Lazarus contends that though the Court seems disinclined to intervene, it ought to, because such gerrymandering is increasingly making voting irrelevant by entrenching incumbents and incumbent political parties.
\n<\/span>\nThursday, Dec. 25, 2003<\/span>\n<\/p>\n\n\n\n

The Supreme Court Considers An Appalling Case Where Prosecutors Hid Evidence From the Death Row Defendant, and Knowingly Presented Perjured Testimony Against Him <\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus discusses the case of Delma Banks, Jr. — a death row defendant who had no prior criminal record before he was convicted of murder in Texas. As Lazarus explains, it was later discovered that knowing prosecutorial misconduct infected Banks’s trial — but a federal appellate court refused to address that misconduct. Now the U.S. Supreme Court will decide what to do in Banks’s case, in which it just heard oral argument.
\n<\/span>\nThursday, Dec. 11, 2003<\/span>\n<\/p>\n\n\n\n

The Proposed Change to the Federal Rules of Appellate Procedure Allowing Citation of Unpublished Opinions
Why It Will Be Harmful<\/span><\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus takes issue with a proposed change to the Federal Rules of Appellate Procedure that would allow attorneys before appellate courts to cite unpublished judicial opinions — which constitute roughly 80% of all opinions. Lazarus contends that this change would make sense in a perfect world, but since the world of the appeals courts is not perfect, in several ways, the change will actually have bad consequences there.
\n<\/span>\nThursday, Nov. 27, 2003<\/span>\n<\/p>\n\n\n\n

The Upcoming Supreme Court Cases Involving the Guantanamo Detainees
Why They Will Be Transcendently Important<\/span><\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus discusses the importance of, and the issues raised by, the cases concerning the detainees on Guantanamo that the Supreme Court recently decided to review. Lazarus discusses in detail two key precedents upon which the Bush Administration will doubtless rely; explains why those precedents probably won’t resolve the case; and predicts what the Justices may do.
\n<\/span>\nThursday, Nov. 13, 2003<\/span>\n<\/p>\n\n\n\n

The New Anti-“Partial Birth Abortion” Legislation:
Is It a Political Watershed, Or Not? <\/span><\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus argues that the real significance of the new “partial birth abortion” law is not its impact on the right to choose, but rather its impact on the already chilly relationship between Congress and the Supreme Court. Lazarus contends that the new law plainly flouted the Court’s 2000 decision in Stenberg v. Carhart, and thus will be struck down. He also contends that the Court’s regard for Congress can only lessen when it passes such a blatantly unconstitutional law.
\n<\/span>\nThursday, Oct. 30, 2003<\/span>\n<\/p>\n\n\n\n

One Reason Why Arnold Won
His Attack Ads Involving Indian Gaming, and Their Larger Context and Significance<\/span><\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus discusses a \nlittle-remarked but thought-provoking aspect of the recent California recall election: \nIts status as a barometer for Californians’ feelings about casino gaming run by \nthe states’ Indian tribes.\u00ca Lazarus argues that an ad run by Schwarzenegger \nthat attacked Gray Davis for failing to tax casino gaming was misleading — but \nalso tapped into a real, disturbing, and recent anti-tribe sentiment among \nCalifornia voters.\n
\n<\/span>\nThursday, Oct. 16, 2003<\/span>\n<\/p>\n\n\n\n

Attorney General Ashcroft’s New Charging, Plea Bargaining, and Sentencing Policies:
Though Consideration Is Needed, Criticism Has Been Overstated<\/span><\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus discusses Attorney General John Ashcroft’s recent policy memo regarding Department of Justice offense charging, plea bargaining, and sentencing. Lazarus contends that, except in a single respect, the policy set forth in the memo is not very different from — or more objectionable than — similar policies employed by former Attorney General Janet Reno. Lazarus does, however, contrast Reno’s preference for decentralization with Ashcroft’s preference for centralization, when it comes to prosecutorial decisionmaking.
\n<\/span>\nThursday, Oct. 02, 2003<\/span>\n<\/p>\n\n\n\n

The Federal Appellate Decision Delaying the Recall:
Bush v. Gore’s Tragedy Repeats Itself as California’s Farce<\/span><\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus discusses the relationship between Bush v. Gore and the U.S. Court of Appeals for the Ninth Circuit’s recent decision delaying the California recall. Lazarus explains why the Ninth Circuit’s decision to stop the California recall contrasts, in certain ways, with the U.S. Supreme Court’s decision to stop the Florida recount. But he also argues that both decisions were similarly ill-advised, and will similarly be perceived as part of a trend of overly politicized judging.
\n<\/span>\nThursday, Sep. 18, 2003<\/span>\n<\/p>\n\n\n\n

Prosecutorial Resistance to Exculpatory DNA Evidence
Why We Must Overcome It, And What Institutional Safeguards Will Help Us Do So<\/span><\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus argues that prosecutors’ offices must create independent committees to review cases in which DNA evidence suggests that a person convicted of a crime was innocent. Lazarus argues that leaving the decision whether to admit error — or at least support reopening the case, or retrial — to line prosecutors is too dangerous, given that recent examples have shown, and human nature suggests, that they are too invested in the convictions they have won.
\n<\/span>\nThursday, Sep. 04, 2003<\/span>\n<\/p>\n\n\n\n

The Best of Times, The Worst of Times:
The Low Lows and High Highs of the California Recall<\/span><\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus outlines some serious downsides, and encouraging upsides, of the California recall.\u00a0 In particular, he contends that the recall fits into a modern trend of retrospectively challenging — whether in court, through attempts at impeachment, through the recall mechanism, or otherwise — election results.\u00a0 Lazarus explains why this trend may be systemically harmful to our democracy, and why nonetheless the recall also has its pro-democracy side.\u00a0
\n<\/span>\nThursday, Aug. 21, 2003<\/span>\n<\/p>\n\n\n\n

The Pivotal Role Of Justice Anthony Kennedy:
Why The Supreme Court’s Romantic May Only Become More Influential Over Time<\/span><\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus discusses some of the landmark decisions and votes of Justice Anthony Kennedy, particularly those from the most recent Supreme Court Term.\u00a0 Lazarus argues that Kennedy’s jurisprudence evidences a romantic bent — idealizing the Court as a moral, and not just a legal, force — that long predates his famous recent pro-gay rights opinion in Lawrence v. Texas<\/i>.\u00a0
\n<\/span>\nThursday, Aug. 07, 2003<\/span>\n<\/p>\n\n\n\n

The Ghost of Justice Powell:
How His Cautious Conservatism Still Haunts the Supreme Court<\/span><\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus argues that the legacy of the long retired, and now deceased, Justice Lewis Powell was revived during this past Supreme Court Term.\u00a0 In addition to demonstrating how virtually all of Powell’s Bakke concurrence has now become the law of affirmative action, Lazarus also explores other Powellian approaches and decisions that are now being echoed — or in one instance, disavowed — on the Court.
\n<\/span>\nThursday, Jul. 10, 2003<\/span>\n<\/p>\n\n\n\n

The Supreme Court And Equal Protection:
Why This Term’s Momentous Affirmative Action and Same-Sex Sodomy Cases Have Put the Doctrine To the Test<\/span><\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus puts two of this Term’s landmark decisions — one on an affirmative action program, the other on an anti-same-sex sodomy law — into the broader perspective of the Supreme Court’s equal protection jurisprudence.\u00a0 Lazarus traces the doctrine’s evolution — explaining how strict scrutiny got laxer, in case such as the affirmative action decision, and how the rational basis test, previously extremely lax, got stricter.\u00a0
\n<\/span>\nThursday, Jun. 26, 2003<\/span>\n<\/p>\n\n\n\n

A Single Day’s Decisions Illustrate Deep Fault Lines In the Supreme Court:
Why Hibbs and Chavez Are Symptoms of the Justices’ Divisions<\/span><\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus discusses two recent Supreme Court decisions — each issued on May 27; each, he argues, disturbing in a similar way.\u00a0 One is the Chavez<\/i> decision, which concerned the Fifth Amendment’s right against self-incrimination.\u00a0 The other is the Hibbs<\/i> case, which concerned Congress’s power to abolish States’ sovereign immunity.
\n<\/span>\nThursday, Jun. 12, 2003<\/span>\n<\/p>\n\n\n\n

Have Law Firm Careers Changed for the Worse?
The Way It Used to Be, and the Way It Is Now<\/span><\/a>\n\n
\nFindLaw columnist, attorney and author Edward Lazarus discusses the contrast between opportunities for young law firm attorneys now, and in the past.\u00a0 Drawing on Chicago attorney John Tucker’s Trial and Error: The Education of A Courtroom Lawyer<\/u>, Lazarus suggests that the golden age of pro bono lawyering, and trial experience for young attorneys, that Tucker depicts is a far cry from today’s associate’s experiences.
\n<\/span>\nThursday, May. 29, 2003<\/span>\n<\/p>\n\n\n\n

A Recent Dissent By Federal Appellate Judge Alex Kozinski Offers Rare Candor About the Political Nature of the Judicial Process <\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus discusses a dissent by Judge Alex Kozinski to a denial of reconsideration by the U.S. Court of Appeals for the Ninth Circuit, in a controversial case concerning the Second Amendment’s right to bear arms.\u00a0 As Lazarus explains, Kozinski’s dissent confronts head on what it means to judge with integrity and consistency — but Lazarus argues the consistency Kozinski advocates is the wrong kind.
\n<\/span>\nThursday, May. 15, 2003<\/span>\n<\/p>\n\n\n\n

A “Moral” Foreign Policy That Ignores International Law?
The History and Ironies of the U.S.’s Current View of Its Role In the World<\/span><\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus reviews the history of the U.S.’s adoption at various times of a moral, rather than a purely realpolitik, perspective on world affairs. Lazarus also considers the consequences of the U.S.’s recent decision, in the war on Iraq, to pair its moral, pro-democracy perspective with a disregard of international law and the point of view of the U.N..\n\n
\n<\/span>\nThursday, May. 01, 2003<\/span>\n<\/p>\n\n\n\n

Why the Pending Bill That Would Limit Federal Judges’ Sentencing Discretion Even More Should Not Be Passed <\/a>\n\n
\nFindLaw columnist, attorney and author Edward Lazarus argues against a new bill that would lessen federal judges’ discretion in sentencing further. Lazarus contends that this discretion is already narrow enough, as a result of the U.S. Sentencing Guidelines; was wisely broadened somewhat by the Supreme Court; and should not be narrowed again.
\n<\/span>\nThursday, Apr. 03, 2003<\/span>\n<\/p>\n\n\n\n

The Supreme Court’s Recent Navajo Nation Decision:
Ignoring Longstanding Fiduciary Duties to Tribes<\/span><\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus comments on the Supreme Court’s recent decision in United States v. Navajo Nation. The decision, as Lazarus explains, raises both the specific issue of the validity of an amendment to a mining lease on tribal land, and the larger issue of how the federal government treats, and should treat, tribes.
\n<\/span>\nThursday, Mar. 20, 2003<\/span>\n<\/p>\n\n\n\n

George Will, Miguel Estrada, and the Cloture Vote:
How Will’s Flip-Flop of Positions Illustrates the Increasing Collapse of the Politics\/Law Distinction<\/span><\/a>\n\n
\nFindLaw columnist, attorney and author Edward Lazarus discusses conservative editorialist George Will’s shift of positions on the constitutionality of the Senate Rule requiring a 60 vote supermajority to end a filibuster. Lazarus argues that Will’s unexplained flip-flop on the issue exemplifies a more general societal failing that has been all too evident in recent years.
\n<\/span>\nThursday, Mar. 06, 2003<\/span>\n<\/p>\n\n\n\n

How the Miguel Estrada Nomination Illustrates Our Out-of-Control Confirmation Process, And What We Can Do to Improve the System <\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus looks at Miguel Estrada’s stalled confirmation process as an example of one way in which our confirmation system for federal judges, including Supreme Court Justices, can go grievously wrong. Lazarus suggests that both Republican and Democrats have dealt with the Estrada nomination cynically, and propose a solution to break deadlocks on Estrada and other “no paper trail” nominees.
\n<\/span>\nThursday, Feb. 20, 2003<\/span>\n<\/p>\n\n\n\n

How the Solicitor General’s Brief in the Michigan Affirmative Action Cases Fails to Fulfill His Office’s Proper Role <\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus discusses Solicitor General Theodore Olson’s “friend of the court” brief on the University of Michigan Supreme Court cases. The cases concern the constitutionality of Michigan’s use of affirmative action in undergraduate and law school admissions. Lazarus argues that not only are the brief’s arguments substantively weak, but its omissions, and argumentative tactics betray the proper role of the SG’s Office in serving the President and the Court.
\n<\/span>\nThursday, Feb. 06, 2003<\/span>\n<\/p>\n\n\n\n

THOUGHTS ON ROE V. WADE FROM THE AUTHOR OF THE LANDMARK DECISION:
WAS JUSTICE BLACKMUN CORRECT, OR IS THE DECISION STILL TROUBLING?<\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus discusses the Justice Blackmun’s own views on the Roe decision. Lazarus suggests that the Justice — for whom Lazarus served as a clerk — both was keenly sensitive to the feelings of those who opposed Roe, and at the same time, never reconsidered its oft-maligned reasoning. Why? Lazarus offers a possible explanation.
\n<\/span>\nThursday, Jan. 23, 2003<\/span>\n<\/p>\n\n\n\n

THE RETURN OF REGIONALISM, AND WHY IT MAY AFFECT THE DISPOSITION OF THE SUPREME COURT’S UNIVERSITY OF MICHIGAN AFFIRMATIVE ACTION CASES <\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus argues that regional influences play a far greater role in contemporary American life than is often acknowledged, strongly affecting not only national politics, but also Supreme Court decisions. In particular, Lazarus observes that the shared Western roots of swing Justices Anthony Kennedy and Sandra Day O’Connor may well play a crucial role in how they vote in the key upcoming cases on affirmative action and same-sex sodomy this Term.
\n<\/span>\nThursday, Jan. 09, 2003<\/span>\n<\/p>\n\n\n\n

JUSTICE THOMAS’S IMPASSIONED COMMENTS ON CROSS-BURNING:
DO THEY MAKE SENSE AS A MATTER OF FIRST AMENDMENT LAW?<\/a>\n\n
\nFindLaw columnist, attorney and author Edward Lazarus discusses the potential influence of Justice Clarence Thomas’s recent remarks at oral argument in this Term’s cross-burning case. The comments suggest that Thomas believes cross-burning is not speech, but only intimidation designed to create fear and terror. Lazarus argues they are potentially influential not only in the cross-burning case, but also in affirmative action cases this Term.
\n<\/span>\nThursday, Dec. 26, 2002<\/span>\n<\/p>\n\n\n\n

HOW TO CROSS-EXAMINE BUSH’S CONSERVATIVE JUDICIAL NOMINEES:
WHY THE DEMOCRATIC MINORITY SHOULD USE UPCOMING CONFIRMATION HEARINGS AS A PLATFORM FOR A NEW CONSTITUTIONAL VISION<\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus offers a strategy — complete with suggested questions — for Senate Democrats to use to grill the conservative federal judicial nominees who will soon be up for confirmation. Lazarus points out that, although we are likely to soon witness a strong rightwards tilt to the federal judiciary, hearings will allow Democrats to articulate an alternative liberal vision.
\n<\/span>\nThursday, Dec. 12, 2002<\/span>\n<\/p>\n\n\n\n

WHEN WILL THE WAR ON TERRORISM FORCE CONSERVATIVES TO CHOOSE STATES’ RIGHTS OVER IMPROVED NATIONAL SECURITY?
NOT YET, AS THE RECENT FISA APPEALS DECISION SHOWS<\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus considers the recent \n\ndecision by the FISA Court of Review in the context of a larger issue: Will \n\nconservatives, in the time of the war on terrorism, be able to hold on \n\nboth to their distaste for centralization of power in the federal government, \n\nand their support for improving national security?\n\n
\n<\/span>\nThursday, Nov. 28, 2002<\/span>\n<\/p>\n\n\n\n

A BASIC DEATH PENALTY PARADOX THAT IS\n\n TEARING THE SUPREME COURT APART <\/a>\n\n
\nFindLaw columnist, attorney and author Edward Lazarus takes on a number of interesting questions about the Supreme Court’s increasing death penalty rift. Among them are these: What accounts for the acrimonious divide over the recent decision whether to accept a juvenile death penalty case? Why have Justices Ginsburg, Souter, and Breyer become increasingly anti-death penalty as their tenure on the court has increased?\n\n
\n<\/span>\nThursday, Oct. 31, 2002<\/span>\n<\/p>\n\n\n\n

WHY THE WORK OF THE NEW NOBEL PRIZE WINNERS FOR ECONOMICS MAY SPELL THE DEMISE OF THE LAW AND ECONOMICS MOVEMENT:
THE PROBLEM WITH POSNER, AND WITH ASSUMING RATIONALITY<\/a>\n\n
\nThis year, psychologist Daniel Kahneman and economist Vernon Smith won the \n\nNobel Prize in Economics for their work on the ways in which humans do not \n\nact rationally, contrary to economists’ assumptions. FindLaw columnist, \n\nattorney, and author Edward Lazarus explains the possible repercussions of \n\ntheir work for the Law and Economics movement, focusing on the work of \n\nfederal appeals judge Richard Posner.\n\n
\n<\/span>\nThursday, Oct. 17, 2002<\/span>\n<\/p>\n\n\n\n

THE LINGERING PROBLEMS WITH ROE V. WADE, AND \n\n WHY THE RECENT SENATE HEARINGS ON \n\n MICHAEL MCCONNELL’S NOMINATION ONLY UNDERLINED THEM <\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus argues that agreement \n\nwith Roe v. Wade is, contrary to popular opinion, a terrible litmus test for \n\nfederal judicial appointees. He cites the recent confirmation hearings of \n\nfederal appellate court nominee and prominent constitutional law professor \n\nMichael McConnell as an example of how Roe is misused, and contends that \n\neveryone, liberal and conservative, should admit the decision is poorly \n\nreasoned.\n\n
\n<\/span>\nThursday, Oct. 03, 2002<\/span>\n<\/p>\n\n\n\n

AMERICAN CIVIL LIBERTIES, POST 9\/11:
ARE THEY TRULY IN JEOPARDY, AND ARE THEY RELATIVE OR \n\nABSOLUTE?<\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus takes as his \n\njumping-off point for this column recent New York Times Op Eds by Richard \n\nPosner and Kathleen Sullivan addressing the issue of civil liberties \n\npost-9\/11. Lazarus contends that both Posner and Sullivan are correct, in a \n\nsense, in what they say about civil liberties but that we need to go deeper. \n\nHe points out that it may be correct both that the Constitution itself \n\naccommodates a tightening of civil liberties to provide for national \n\nsecurity, and that we should be wary of tightening civil liberties too far \n\nbecause the nation has a mixed and sometimes shameful history on this score. \n\nThe real question, then, is how to better reconcile the two, and Lazarus has \n\na suggestion as to how we can do so.\n\n
\n<\/span>\nThursday, Sep. 19, 2002<\/span>\n<\/p>\n\n\n\n

LIBERALS MAY NOT LAUGH LAST:
WHY THE CHARGES THAT JUDGE JOHN NOONAN MAKES \n\nAGAINST \n\n CURRENT SUPREME COURT CONSERVATIVES \n\n MAY APPLY TO THEIR JURISTS, TOO<\/a>\n\n
\nFindLaw columnist, attorney, and author Edward Lazarus discusses conservative \n\nU.S. Court of Appeals judge John T. Noonan, Jr.’s claims that the current \n\nconservatives Justices on the Supreme Court are inconsistent in the \n\ninterpretive strategies they choose — pretending to stick closely to the \n\nconstitutional text, but departing from it when it suits them, as in the case \n\nof the Eleventh Amendment. (Noonan makes his case in his recently-published \n\nbook Narrowing the Nation’s Power: The Supreme Court Sides with the States.) \n\nLazarus concurs with Noonan’s critique but points out the very same charges \n\ncan be lodged against liberal jurists such as Justice William Brennan.\n\n
\n<\/span>\nThursday, Sep. 05, 2002<\/span>\n<\/p>\n\n\n\n

THE ANTICIPATED BASEBALL STRIKE:
WHY WE SHOULD BLAME THE OWNERS, NOT THE PLAYERS<\/a>\n\n
\nIf a baseball strike occurs, many will blame the players, but FindLaw columnist, attorney, and author Edward Lazarus contends that it is the owners who should be blamed instead. Lazarus explains why labor-management relations within baseball are unusual; how their rules have evolved over our history; and what the two major issues that may lead to a strike are. On each issue, he argues that it is the players who have taken the more reasonable position.\n\n
\n<\/span>\nThursday, Aug. 22, 2002<\/span>\n<\/p>\n\n\n\n

IS THERE A FIRST AMENDMENT RIGHT OF THE PUBLIC \n\n TO VIEW PREPARATIONS FOR EXECUTIONS?
A RECENT NINTH CIRCUIT DECISION SAYS YES, AND IMPLIES \n\n THE CONSTITUTIONAL NEED TO TELEVISE EXECUTIONS TOO<\/a>\n\n
\nFindLaw columnist, attorney and author Edward Lazarus discusses a recent decision by the U.S. Court of Appeals for the Ninth Circuit striking down, as contrary to the First Amendment, a California death penalty rule. The rule barred public viewing of the initial process by which a death row inmate is prepared for lethal injection — by being strapped down and fitted with an IV. Lazarus examines the case in combination with recent Supreme Court death penalty decisions and notes that their logic strongly supports a right to televise executions as well.\n\n
\n<\/span>\nThursday, Aug. 08, 2002<\/span>\n<\/p>\n\n\n\n

THE BATTLE OVER CONTROVERSIAL BUSH JUDICIAL NOMINEE \n\n PRISCILLA OWEN:
WHY AN IDEOLOGICAL SELECTION \n\nDESERVES \n\n AN IDEOLOGICAL CONFIRMATION PROCESS<\/a>\n\n
\nFindLaw columnist, attorney and author Edward Lazarus discusses the troubled \n\nconfirmation process of Priscilla Owen, a Texas Supreme Court Justice whom \n\nPresident Bush has nominated for a life-tenured seat on the U.S. Court of \n\nAppeals for the Fifth Circuit. Lazarus argues that Owen’s nomination was \n\nideological — overlooking her undue delay in deciding a disabled boy’s tort \n\ncase, and focusing instead on her anti-abortion views. Accordingly, Lazarus \n\ncontends her confirmation process should, in all fairness, be ideological \n\ntoo.\n\n
\n<\/span>\nThursday, Jul. 25, 2002<\/span>\n<\/p>\n\n\n\n

IN DEFENSE OF THE NINTH CIRCUIT COURT OF APPEALS:
THOUGH THE NINTH CIRCUIT IS FREQUENTLY REVERSED BY THE \n\n SUPREME COURT, THAT DOES NOT MEAN IT IS FREQUENTLY “WRONG”<\/a>\n\n
\nFindLaw columnist, attorney and author Edward Lazarus responds to widespread recent criticism of the Ninth Circuit Court of Appeals — which has a record of reversal by the Supreme Court that is significantly higher than that of the other federal circuits. The Ninth Circuit came under special fire not only for its general reversal rate, but for its recent decision concerning the “under God” language in the Pledge of Allegiance, which many believe the Supreme Court will reverse. Lazarus argues that critics are wrong to fault the court for its reversal rate, and that the Pledge decision is more defensible than it may seem.\n\n
\n<\/span>\nThursday, Jul. 11, 2002<\/span>\n<\/p>\n\n\n\n\n\n\n\n

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