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
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
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:
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
presidency, particularly with Ashcroft as Attorney General, may be marked by
a substantial number of federal executions, and Timothy McVeigh's may be
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
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