Legal Commentary: Edward Lazarus Archive

THE CASE THAT ROARED: A LIMITED "DISPARATE IMPACT" HOLDING THAT COULD HAVE LARGE REPERCUSSIONS
FindLaw Columnist, attorney, and author Edward Lazarus discusses the Court's recent decision in Alexander v. Sandoval, which held there is no private right of action, under Title VI of the Civil Rights Act, to bring suit claiming "disparate impact" discrimination. The case might sound innocuous -- for "disparate impact" regulations still stand, and can be enforced by the government. But it was important enough to spur Justice Stevens to read his opinion from the bench. Lazarus explains why.
Tuesday, May. 01, 2001

DEATH PENALTY POLARIZATION: AS ATTORNEY GENERAL ASHCROFT CALLS FOR "CLOSURE" WITH MCVEIGH'S EXECUTION, JUSTICE GINSBURG JOINS THE MORATORIUM MOVEMENT
FindLaw columnist, attorney, and author Edward Lazarus contrasts two recent developments in the death penalty debate: Attorney General John Ashcroft's decision to televise Timothy McVeigh's execution via closed-circuit television to victims' families, and Supreme Court Justice Ruth Bader Ginsburg's call for a death penalty moratorium. Lazarus contends that Ashcroft's decision to televise can only be justified by vengeance, not deterrence or "closure" (its stated purpose), and he notes that Ginsburg is following a pattern of Justices who become more anti-death penalty the longer they serve on the Court.
Tuesday, Apr. 17, 2001

AFFIRMATIVE ACTION WARS: A CONUNDRUM FOR CONSERVATIVES
FindLaw columnist, attorney, and author Edward Lazarus claims to have caught conservatives in a conundrum relating to the current hot topic of affirmative action -- one that will reach the Supreme Court again soon. Lazarus points out that last year, in the debate over whether the Clinton Administration should support the federal anti-Miranda statute, many conservatives argued that the federal government must defend in court any plausibly constitutional federal statute, even one with which the current administration disagrees. But if that principle is accepted, Lazarus contends, then the Bush Administration must defend the federal affirmative action statute in court, too -- rather than "confess error," reverse the prior administration's position, and attack the statute, as many are urging.
Tuesday, Apr. 03, 2001

FIGHTING FOR THE SOUL OF THE FEDERAL JUDICIARY- WHAT WE CAN EXPECT FROM BUSH'S NOMINATION PROCESS, AND HIS NOMINEES
FindLaw columnist, attorney, and author Edward Lazarus explains that, with over 100 federal judgeships at stake, the coming clash over Bush Administration judicial nominees will likely be hard-fought. Lazarus contends, however, that the fight should avoid the illusory distinction that some commentators -- including the New York Times' Anthony Lewis -- have drawn between judicial merit and judicial ideology. The battleground for contemporary judgeships, Lazarus suggest, is inherently an ideological and political one and it should be acknowledged as such.
Tuesday, Mar. 20, 2001

SUPREME COURT VOTING STRATEGIES: DEFENSIVE DENIALS
FindLaw columnist, attorney, and author Edward Lazarus discusses an important Supreme Court voting strategy, that of the "defensive denial" -- in which justices vote to deny review of cases because they fear a grant of review would lead to a result they oppose. Lazarus discusses the history of defensive denials, and contends that recently both liberal and conservative judges may be adopting the defensive denial strategy due to the unpredictability of Justice O'Connor's swing vote.
Wednesday, Mar. 07, 2001

HOW CLINTON'S PARDONS MAY AFFECT FUTURE PRESIDENTS' PARDON POWER
FindLaw columnist, attorney, and author Edward Lazarus discusses former President Clinton's recent New York Times Op Ed defending his use of the pardon power. Lazarus contends that Clinton's invoking historical pardon precedents in his Op Ed, to justify his exercise of the pardon power, only illustrates how some of the Clinton pardons (such as those of Marc Rich and four members of the New Square Hasidic community) broke with tradition. Pardons like these, Lazarus argues, threaten to set a dangerously low bar for future Presidents' use of the pardon power.
Tuesday, Feb. 20, 2001

WHY WE SHOULD CONSIDER ABOLISHING LIFE TENURE FOR SUPREME COURT JUSTICES
FindLaw columnist, attorney and author Edward Lazarus notes the recent Washington rumors that Justice O'Connor will soon retire, and reflects on the general problem of both conservative and liberal Justices retiring "politically" -- that is, only when a president of their party is in office. Lazarus explains how a constitutional amendment setting fixed, one-time, 18 year terms for Justices would address this problem, and discusses the pros and cons of such an amendment.
Tuesday, Feb. 06, 2001

THE COMING ERA OF FEDERAL EXECUTIONS?
FindLaw columnist, attorney, and author Edward Lazarus contends that the Bush presidency, particularly with Ashcroft as Attorney General, may be marked by a substantial number of federal executions, and Timothy McVeigh's may be only the beginning. As Lazarus explains, internal Department of Justice checks may reduce the risk that innocents will be executed. But legal challenges still may succeed, for DOJ's own recent report evidenced racial bias in federal executions -- bias that may meet the standard necessary to invalidate the federal death penalty.
Tuesday, Jan. 23, 2001

THE PROPER STANDARD FOR ASHCROFT'S CONFIRMATION FIGHT
FindLaw columnist, attorney, and author Edward Lazarus considers what the proper standard should be for the confirmation fight of Bush attorney general nominee, and former Senator, John Ashcroft. Lazarus contends that Ashcroft's right wing politics should not alone disqualify him -- though they might disqualify a Supreme Court nominee -- for President-elect Bush is entitled to an Attorney General of whose politics he approves. More troubling,Lazarus argues, is Ashcroft's record, while he was a Senator, of unfairly shutting down the confirmations of others.
Tuesday, Jan. 09, 2001

CHIEF JUSTICE REHNQUIST'S LEGACY
FindLaw columnist, attorney, and author Edward Lazarus predicts that Chief Justice Rehnquist is likely to leave the Court during George W. Bush's administration, and examines the legacy Rehnquist will leave -- a destructive one, Lazarus argues, in which both Court precedent and Court cohesiveness have been harmed. Lazarus explains how the Bush v. Gore decision, in particular, allows us insight into the Rehnquist legacy.
Tuesday, Dec. 26, 2000