Legal Commentary

By JOHN DEAN

What Will Become of Dick Cheney's Vice Presidential Records?

FindLaw columnist and former counsel to the president John Dean comments on the ongoing controversy over the production of the records of former Vice President Dick Cheney. As Dean explains, Cheney never sent his records to the George W. Bush presidential-records archive, and has fought in court against the records' disclosure. Dean explains why the litigation -- although it established that the Cheney records should, in theory, have been turned over -- nevertheless failed to result in their actually being turned over. Dean also notes that while Congress is currently considering amending the presidential-records law, it is not considering ways to remedy the very shortcomings that have allowed the Cheney records situation to persist. Friday, September 3, 2010

By NEIL BUCHANAN

Scaring the Kids and Grandkids: Tactics to Scare Younger Americans Into Supporting Unnecessary Changes in Social Security

FindLaw columnist, Cornell Visiting Scholar, George Washington law professor, and Economics PhD Neil Buchanan comments on the current controversy over whether to alter Social Security. Buchanan contends that there is no need for Social Security to be an issue at all right now, let alone a major issue. Among other points, he counters the frequently-heard arguments that it would be better to have each generation pay for its own retirement; and that we should be troubled that Social Security is merely a set of IOUs. Buchanan concludes that attempts to scare people in their 20s and 30s into thinking the Social Security system is broken are ill-grounded, and that we would do best to focus on other, more genuine policy priorities. Thursday, September 2, 2010

By SHERRY COLB

Evaluating the Eighth Amendment's Ban on Only Cruel and Unusual Punishments

FindLaw columnist and Cornell law professor Sherry Colb notes that, while it's evident why the Constitution might want to ban cruel punishments, it is less plain why it bans punishments that are "cruel and unusual." Why should it matter if a punishment is unusual? As a case study of a punishment that is both cruel and unusual, Colb focuses on a recent stoning in Afghanistan, of a couple who had done nothing but marry without their parents' blessing. She also considers a U.S. Supreme Court case involving a convict who was tied to a hitching post for hours in the hot sun. In examining why the Constitution is troubled by cruel AND unusual punishments, Colb considers whether targeting unusual punishments may be a way to constrain judicial discretion by compelling the judge to refer to community norms. In addition, she contends that the Constitution's ban may not be sufficient -- since in some cases, society can become acclimated to, and treat as "usual," conduct that, on closer examination, may be cruel. In other words, Colb suggests, the very fact that a kind of conduct is usual in American society may mask its cruelty -- citing factory farming as an example. Yet in other instances, Colb observes, when society increasingly becomes more enlightened over time, then the unusualness of a punishment may indeed be a good proxy for whether it should be permissible. Wednesday, September 1, 2010

By JOANNE MARINER

Targeted Killings Go To Court

FindLaw columnist and human rights attorney Joanne Mariner comments on a suit filed yesterday, August 30, by the ACLU and the Center for Constitutional Rights. As Mariner explains, the suit, Al-Aulaqi v. Obama, seeks to limit the U.S.'s power to kill American citizens abroad. Anwar al-Aulaqi -- an American citizen hiding in Yemen, and alleged to be an al Qaeda operative -- is reportedly on a short list of American citizens whom U.S. military forces have been authorized to kill. In addition, reports state that he recently became the first U.S. citizen to be place on a secret CIA kill list, and that he has already been targeted by at least one U.S. airstrike in Yemen. Yet he has never been indicted in the U.S., and the government's evidence against him remains secret. The plaintiff in the suit is Anwar's father, Nasser al-Aulaqi, although his standing to sue may be in doubt. Mariner explains the suit's objectives, and why it is both novel and important. Tuesday, August 31, 2010

By NEIL BUCHANAN

Discipline for Government Spending: Mr. Boehner Offers the Germ of a Promising Approach to Budget Reform

FindLaw columnist, Cornell Visiting Scholar, George Washington law professor, and Economics PhD Neil Buchanan comments on a recent remark by House Minority Leader John Boehner setting forth a proposed test for federal budget items: whether an item is so vital that we are willing to ask our children and grandchildren to pay for it. Buchanan contends that Boehner's test has a good idea at its core -- the idea that some budget items are worth borrowing to finance, though others are not -- but that the test itself is the wrong one to select. Buchanan also argues that Boehner has been wrong in suggesting, on other occasions, that federal borrowing is inherently a bad thing. Finally, Buchanan suggests that an independent board's capital-budgeting system could importantly improve the way in which our government spends and borrows. Friday, August 27, 2010

By JULIE HILDEN

Future Conflict Over Defamation on Facebook: How It Might Differ from Traditional Defamation Litigation, Part Two in a Two-Part Series of Columns

In Part Two in a two-part series of columns on defamation and Facebook, FindLaw columnist, attorney, and author Julie Hilden comments on how defamation disputes based on Facebook posts might differ from defamation cases based on statements made in print or online media. (Part One in the series addressed a claim of Facebook defamation that was dismissed by a New York state court). Hilden points to Facebook's brief character limits and its individually-identifiable audience members as factors that distinguish it from print and online media for libel-law purposes. She also suggests that Facebook might consider asking users to waive the right to sue for Facebook defamation, in exchange for the right to contact the very same Facebook audience that initially heard an allegedly defamatory statement, and to respond to that same audience with a rebuttal. Tuesday, August 24, 2010

By MICHAEL C. DORF

Four Secrets to Law School Success

FindLaw columnist and Cornell law professor Michael Dorf offers law students four key pieces of advice that will help them in succeeding in law school. Building upon his prior columns regarding the first-year curriculum, and on how to think like a lawyer, Dorf now focuses upon some important distinctions that law students should keep in mind. Among these are the distinctions between hard and easy legal questions; between good and bad confusion when it comes to studying the law; and between a deconstructive classroom discussion, and the constructive process of crafting an exam answer. Dorf also advises students to have fun in law school, both inside and outside the classroom. Monday, August 23, 2010

By JOHN DEAN

The Blagojevich Verdict: A Case Too Complex and Confusing

FindLaw columnist and former counsel to the president John Dean comments on the result in the federal trial of former Illinois Governor Rod Blagojevich and his brother, Robert: Jurors hung on all but one minor charge, which will carry only a short sentence. Based on his analysis of jurors' post-trial comments and his discussions with a number of former federal prosecutors, Dean contends that the prosecution botched the case by presenting it in a way that jurors found confusing and overly complex. Another strategic misstep, Dean notes, may have been indicting the brother, and not Blagojevich's wife. The prosecution was led by U.S. Attorney Patrick Fitzgerald -- also known for prosecuting Scooter Libby for the leak of Valerie Plame Wilson's identity as a CIA agent. Next time, Dean and his sources suggest, Fitzgerald may want to sharply narrow his case -- proceeding as if with a rifle, not a cannon. Friday, August 20, 2010

By MARCI HAMILTON

The Mosque Controversy Continues: How a Texas Case Regarding a Sikh Temple Illuminates the Issues

FindLaw columnist and Cardozo law professor Marci Hamilton comments on the ongoing controversy about plans to build a mosque in Lower Manhattan, near Ground Zero. She parallels those who would stop the mosque due to "sensitivities" to those who say that depictions of Muhammad should not be published due to "sensitivities." In each case, Hamilton argues, the law is clear: First Amendment speech and religion rights should win the day. Hamilton also contrasts the controversy in New York to one in Texas -- where a proposal for a religious building was denied, but apparently the denial was based on generally-applicable, non-discriminatory grounds. Thursday, August 19, 2010

By SHERRY COLB

How The Supreme Court May Have Quietly Undermined the Constitutional Requirement of "Probable Cause"

FindLaw columnist and Cornell law professor Sherry Colb focuses on an unusual per curiam opinion from the last Supreme Court Term that she argues may have quietly changed the Court's Fourth Amendment doctrine -- in particular, its doctrine regarding the "probable cause" requirement. Colb begins by explaining the Court's practice with respect to per curiam opinions, which are not signed by any Justice, are not preceded by briefing on the merits, and are not the subject of oral argument. Colb explains why the Justices sometimes issue per curiam opinions, but contends that the Fourth Amendment case at issue, Michigan v. Fisher, was a poor candidate for per curiam treatment, because it is far more significant and potentially wide-ranging in its doctrinal effects than per curiam opinions usually are. Wednesday, August 18, 2010

By JULIE HILDEN

Defamation on Facebook: Why a New York Court Dismissed a Recent Suit, Part One in a Two-Part Series of Columns

In Part One in a two-part series of columns on defamation and Facebook, FindLaw columnist, attorney, and author Julie Hilden comments on the dismissal, by a New York state-court judge, of a defamation suit that was based on statements posted to a private group on Facebook (that is, a small group to which two member-administrators controlled access, where postings could only be read by group members). Hilden argues that the judge was right in dismissing the suit, but notes that certain aspects of this particular case made it especially easy for the judge to resolve, and that future defendants in Facebook-based defamation suits may not be as lucky. Tuesday, August 17, 2010

By VIKRAM DAVID AMAR

California's Budget Crisis and Its Prop 8 Litigation: What They Reveal About the State's Divided Executive

FindLaw columnist and U.C., Davis law professor Vikram Amar offers an interesting look at the ins and outs of California's divided executive, as it has affected two important issues for the state: the ongoing budget crisis, and the litigation regarding the anti-gay-marriage Proposition 8, which was recently struck down by a federal district judge. Amar focuses, in particular, on the role of California's Controller, and that of its Attorney General -- noting that both have recently broken with Governor Schwarzenegger on various issues. Amar contends that, generally, Attorney General Jerry Brown has made a much better case for his breaking with the Governor than Controller John Chiang has. In particular, Amar explains why the Controller's three main arguments in favor of his independence are unpersuasive. Amar also reflects, more generally, on whether it is a good thing for states' Attorneys General to be independent from their Governors, and compares state Attorney General practice to Solicitor General practice within the federal government. Monday, August 16, 2010

By VIKRAM DAVID AMAR

Musings on Some Procedural, But Potentially Momentous, Aspects of the Proposition 8 Case As it Goes to the Ninth Circuit

FindLaw columnist and U.C., Davis law professor Vikram Amar comments on two procedural aspects of the California federal-court litigation over the anti-gay-marriage Proposition 8. The first issue, as Amar explains, is whether the order Judge Walker issued -- banning the state from enforcing Proposition 8 against any same-sex couples -- was overly broad. Arguably, the order should only have applied to the couples who were plaintiffs in the suit, with state officials having discretion as to whether to apply the principle behind the ruling more broadly. The second issue is whether the Proposition 8 sponsors -- the only parties to defend the measure at trial -- were even properly parties to the suit in the first place, in light of precedent strongly suggesting otherwise. Friday, August 13, 2010

By NEIL BUCHANAN

More Good News on Social Security: Reality Collides With Calls to "Fix" the System Sooner Rather than Later

FindLaw columnist, Cornell Visiting Scholar, George Washington law professor, and Economics PhD Neil Buchanan argues -- in the wake of the release of last week's annual Trustees' report on Social Security -- that claims that the Social Security system is in trouble, and that there will be nothing left for future generations, are strikingly off-base. In fact, Buchanan concludes that the nation's retirement system is fundamentally healthy. Buchanan explains the key findings in the Trustees' report; cites political motivations as part of the reason for Social Security doomsaying; and explains why there is a clear consensus that future American workers, thanks to additional knowledge and improved technology, will be more productive and will raise living standards for both themselves and retirees. He also compares several predictions about Social Security's future, and concludes that the system is best left alone, for minor tinkering would likely open the way to an unneeded and even harmful re-vamp. Thursday, August 12, 2010

By MICHAEL DORF

A Federal Judge Strikes Down California's Proposition 8: Will the Ruling Ultimately Advance or Retard Civil Rights for LGBT Americans?

FindLaw columnist and Cornell law professor Michael Dorf comments on the recent, headline-making decision by U.S. District Judge Vaughn Walker to strike down California's anti-gay-marriage Proposition 8 -- on the ground that the Proposition violates the U.S. Constitution in two separate respects. Dorf discusses what the ruling's larger implications may be; considers whether the U.S. Supreme Court is ready to recognize a same-sex marriage right; assesses the risk of backlash from the decision; and analyzes whether the "Society is not ready" argument has any relevance to the legal issues the case raised. In addition, Dorf questions whether Prop 8's sponsors even had the legal right to be its sole defenders in federal court in the first place. Monday, August 9, 2010

By CARL TOBIAS

Filling the Lower Federal Court Vacancies -- Especially the District of Delaware's

FindLaw guest columnist and U. Richmond law professor Carl Tobias comments on the large number of vacancies that persist on both the federal appellate and federal district courts. In particular, Tobias focuses on the situation in the District of Delaware, which he contends is of special importance in light of its influence on corporate law, patent law, and complex litigation. Tobias provides striking statistics regarding vacancies, and urges the Senate to ensure that the lower federal courts soon enjoy a full complement of judges. Monday, August 9, 2010

By JOHN DEAN

How Our Decider-in-Chief Decides: Decisionmaking and the Obama Presidency

FindLaw columnist and former counsel to the president John Dean draws on work by journalist Jonathan Alter to both characterize President Obama's approach to decision-making, and contrast that approach with those taken by other presidents such as George W. Bush and John F. Kennedy, and by former Presidential candidate John McCain. Dean contends that decision-making style is vital, as nothing is more important in a presidency than decision-making. He characterizes President George W. Bush's decision-making as messianic and intuitive, while characterizing President Obama's decision-making as cool and focused. Dean also argues that the criticism that Obama dithers in his decision-making is completely off the mark -- but wonders if the President may be a bit too Spock-like in his approach. Friday, August 6, 2010

By MARCI HAMILTON

The Wrong-Headed Furor over the Planned Mosque at Ground Zero: Mistaking a War on Radical Islamicism for a War on All Muslims

FindLaw columnist and Cardozo law professor Marci Hamilton comments on the controversy regarding the plan to build a mosque in Lower Manhattan, near Ground Zero. Drawing a parallel to the Supreme Court's Korematsu case, Hamilton suggests that the mosque controversy shows that we have lost sights of the values and rights for which we go to war -- such as the right to believe as one wishes without government censorship or penalty, and the refusal to discriminate based on religion, national origin, or ethnicity. Hamilton also points out an irony: Some who have strongly supported the Religious Land-Use and Institutionalized Persons Act (RLUIPA), which gives special land-use rights to religious landowners, might dislike the way RLUIPA could be applied in the New York mosque controversy. Thursday, August 5, 2010

By SHERRY COLB

The Jerusalem "Rape by Deception" Case: Can a Lie Transform Consensual Sex Into Rape?

FindLaw columnist and Cornell law professor Sherry Colb comments on the notorious recent Jerusalem news story about an act that some have called "rape by deception." In brief, the facts appear to be as follows: (1) a man falsely told a Jewish woman that he was single, Jewish, and interested in a serious relationship; (2) in fact, the man was (and is) married (with two children), and is a Palestinian Arab; (3) the two had sex; and (4) the woman says that she never would have consented to sex, had she known the truth about the man. Colb analyzes a number of hypothetical situations to determine when, exactly, a lie told prior to a sex act, and the sex act induced by the lie may together properly be equated with rape. She also explains how -- if the sequence of events that occurred in Jerusalem had instead occurred in the U.S. -- American criminal law would have characterized the man's deception. Wednesday, August 4, 2010

By JOANNA GROSSMAN

The Enforceability of Postnuptial Agreements: Massachusetts Weighs In, Part Two in a Two-Part Series of Columns on Postnuptial Agreements

FindLaw columnist and Hofstra law professor Joanna Grossman continues her two-part series on postnuptial agreements -- agreements that are made after a couple is married regarding how assets will be split if they get divorced (not to be confused with separation agreements). In this column, Grossman covers the general legal landscape -- both historical and contemporary -- regarding such agreements, tracing the history back even to the time when a married woman was not considered a legal person separate from her husband. Tuesday, August 3, 2010

By JOANNA GROSSMAN

The Enforceability of Postnuptial Agreements: Massachusetts Weighs In, Part One in a Two-Part Series of Columns on Postnuptial Agreements

In Part One of a two-part series of columns, FindLaw columnist and Hofstra law professor Joanna Grossman comments on a recent decision by Massachusetts' Supreme Judicial Court (SJC), the highest court in the state, regarding the enforceability of postnuptial agreements -- that is, agreements that are made after a couple is married regarding how assets will be split if they get divorced (not to be confused with separation agreements). Grossman covers the agreement made by the couple who were parties to the suit; the reasons for the SJC's decision that postnuptial agreements are valid in Massachusetts; and the five-factor test the SJC used. She also explains why the issue of the validity of postnuptial agreements in Massachusetts had not been resolved earlier. Monday, August 2, 2010

By ANITA RAMASASTRY

Googling Potential Jurors: The Legal and Ethical Issues Arising from the Use of the Internet in Voir Dire

FindLaw columnist and U. Washington law professor Anita Ramasastry comments on an increasingly common phenomenon: the use of the Internet by attorneys and jury consultants to research potential jurors during the voir dire process. Jury questionnaires, Ramasastry notes, now may ask about Internet use, and attorneys may use Internet research to find out more about jurors -- and even, in unusual cases, to ferret out jurors who have lied during voir dire or on the jury questionnaires that they have filled out. Lawyers may also decide how to frame arguments and present evidence at trial based in part on what they learn about jurors online. Ramasastry notes that there are serious potential downsides to lawyers' researching jurors on the Internet: For instance, any lawyer/juror online contact (including a Facebook "friend" request) is unethical, and if jurors have common names, lawyers should beware of assuming that they have gotten the right person's information via the Web. Friday, July 30, 2010

By CHRISTIAN SIEBOTT and DAVID HARRISON

Jury Verdict Targets Banks' Over-Reliance on Credit Ratings

FindLaw guest columnists and attorneys Christian Siebott and David Harrison comment on a recent Minnesota jury verdict against Wells Fargo. The jury found that Wells Fargo breached its fiduciary duty to its clients when it invested in mortgage-backed securities (MBSs) and purchased notes issued by structured-investment vehicles (SIVs) on their behalf. As Siebott and Harrison explain, the verdict was notable because the MBSs and notes had received an AAA rating, or the equivalent, from credit ratings agencies -- but the jury's verdict indicates that such ratings were not enough; the bank also had an independent duty to do its own due diligence. Siebott and Harrison contend that this verdict is significant not only because other, similar verdicts may be forthcoming, but also because it may signal a fundamental change in the role of credit-rating agencies. Thursday, July 29, 2010

By JOANNE MARINER

Forced Returns From Guantanamo

FindLaw columnist and human-rights attorney Joanne Mariner comments on the issue of Guantanamo prisoners who do not want to be sent back to their home countries, because they fear that they will face torture or other serious forms of abuse if they are repatriated. As Mariner explains, prisoners in this situation include the Uighurs, members of a Muslim minority from western China; and a number of Tunisians, Libyans, and Algerians. Mariner notes that, until now, the Obama Administration had not previously followed a policy of forced repatriation. Instead, it found third countries -- that is, countries other than the U.S. or the prisoners' home countries -- to which to send released Guantanamo prisoners who feared that they would be abused if repatriated. Mariner criticizes the policy change -- represented by the forced repatriation, ten days ago, of an Algerian prisoner who was not given any hearing regarding his claimed fear that he would be harmed if repatriated. In particular, Mariner notes that the new policy violates the Convention Against Torture, which the U.S. has ratified. Wednesday, July 28, 2010

By MICHAEL DORF

Senator Lindsey Graham Puts Ideology Aside to Vote for Elena Kagan: His Stand is Honorable, But Is It Constitutionally-Required?

FindLaw columnist and Cornell law professor Michael Dorf comments on Republican Senator Lindsey Graham's recent remarks regarding his vote to send Elena Kagan's Supreme Court nomination from the Senate Judiciary Committee to the full Senate. As Dorf explains, Graham said that he was satisfied with Kagan’s professional qualifications, her character, and her understanding of the difference between law and politics. Graham also said that he disagreed with Kagan’s judicial philosophy, but that he recognized that her views were mainstream among Democrats. Given how Graham felt about Kagan, was he duty-bound, under the Constitution, to vote as he did -- as Graham himself suggested? Dorf suggests that the answer is actually "No" -- and explains the complex, interesting constitutional history that informs the analysis of this issue. Monday, July 26, 2010

By JOHN DEAN

Should Shirley Sherrod Sue Andrew Breitbart and Fox News?

FindLaw columnist and former counsel to the president John Dean takes on a question that is currently getting significant attention in the media and on the Internet: Should Sherry Sherrod -- who was falsely portrayed as a racist based on selected clips of a speech she gave to the NAACP, and fired from her Obama Administration post as a result -- sue blogger Andrew Breitbart, who disseminated the clips, and/or Fox News, which ran them? Dean argues that the most promising suit for Sherrod to bring would be one for false-light invasion of privacy -- a tort that is related to, but different from, defamation. But Dean warns that Sherrod's suit would be an uphill battle in light of the Supreme Court's high proof standards, and counsels that, in the end, Sherrod would be better served by writing a book and lecturing about the controversy, than by suing Breitbart and/or Fox News. Friday, July 23, 2010

By MARCI HAMILTON

The Time Has Come for the Supreme Court to Carefully Examine the "Ministerial Exception," Which Allows Religious Employers to Discriminate in Hiring

FindLaw columnist and Cardozo law professor Marci Hamilton contends that it is high time for the U.S. Supreme Court to review the ways in which federal appellate courts have interpreted the "ministerial exception" to Title VII and other anti-discrimination laws. As Hamilton explains, this exception derives from the First Amendment religion clauses, and ensures that secular authorities do not interfere with religious employers' hiring of clergy and other employees who are involved in religious doctrine. Hamilton contends, however, that the exception has been interpreted too broadly by the courts. Given several splits among the federal appellate courts about how to interpret the exception, Hamilton suggests that the High Court should grant review to clarify matters. Thursday, July 22, 2010

By SHERRY COLB

An Oklahoma Abortion Law Raises New and Different Rights Questions

FindLaw columnist and Cornell law professor Sherry Colb analyzes the legal questions raised by a new Oklahoma abortion law that, as she explains, operates differently than many abortion restrictions do. Specifically, the law prevents a patient from suing her doctor for failing to reveal to her, during her pregnancy, the presence of a fetal abnormality. Colb notes that most abortion restrictions stop pregnant women from obtaining abortions at the time, at the place, and/or in the manner of their choosing -- or compel young women to gain permission for their abortion from a parent or judge. But this restriction is different: It does not interfere with a woman's ability to get an abortion at a time when she wants one, but it does allow doctors to withhold from women information that might cause some women to decide to abort -- by rendering doctors immune from a lawsuit based on their withholding that information. Using Colb's terms, the law thus does not interfere with a woman's Bodily Integrity Interest (as limits on abortion may), but it does interfere with her Offspring Selection Interest -- but should the latter interest be honored? Colb considers the arguments. Wednesday, July 21, 2010

By JOANNA GROSSMAN

Is the Defense of Marriage Act (DOMA) Valid? A Federal Court Judge Says No: Part Two in a Two-Part Series of Columns on the Two Companion DOMA Cases in Massachusetts

In Part Two in a two-part series of columns, FindLaw columnist and Hofstra law professor Joanna Grossman analyzes a recent decision by Boston-based U.S. District Judge Joseph Tauro regarding the federal Defense of Marriage Act (DOMA). As Grossman explains, the Obama Administration is seeking to enforce Section Three of DOMA, which provides that marriage is defined as the union between a man and a woman for all federal-law purposes. Two cases that challenge the enforcement of Section Three came before Judge Tauro. In this column, Grossman discusses the case of Commonwealth v. United States Department of Health and Human Services, and the role that marital-law history has played both in that case, and in the companion DOMA case that Grossman discussed in Part One of this series. Tuesday, July 20, 2010

By JOANNA GROSSMAN

Is DOMA -- the Defense of Marriage Act -- Valid? A Federal District Court Judge Says No

FindLaw columnist and Hofstra law professor Joanna Grossman analyzes a recent decision by Boston-based U.S. District Judge Joseph Tauro regarding the federal Defense of Marriage Act (DOMA). As Grossman explains, the Obama Administration is seeking to enforce Section Three of DOMA, which provides that marriage is defined as the union between a man and a woman for all federal-law purposes. Two cases that challenge the enforcement of Section Three came before Judge Tauro. In this column -- the first in a two-part series that will continue tomorrow, July 20th -- Grossman discusses one such case, Gill v. Office of Personnel Management; the genesis of DOMA Section Three; and why Judge Tauro held that Section Three was constitutionally invalid as applied to the plaintiffs before him. Monday, July 19, 2010

By VIKRAM DAVID AMAR

How The Aftermath of Senator Byrd's Passing Offers Constitutional Lessons About the Senate and the Processes Used to Fill Senate Vacancies

FindLaw columnist and U.C., Davis law professor Vikram Amar considers the constitutional lessons we can learn from situations where a Senator passes away, and the resulting Senate vacancy must be filled. Amar contends that often, Senators facing terminal health issues may best serve their constituencies by eventually opting to resign their seats. Amar examines the example of Senator Robert Byrd as a case in point. He describes the new status quo after Byrd, which has left Democrats short of a filibuster-proof majority; describes the process and political realities related to the selection of Byrd's successor; and contends that this situation shows why temporary gubernatorial appointments should be utilized, and should be made fairly quickly. Amar also calls for further clarity in the relevant law and an acceptance of vacancy-filling as an inherently political process. Friday, July 16, 2010

By NEIL BUCHANAN

Fighting the Recession With Deficits: Do Advocates of More Stimulus Spending Need to Prove Their Credibility?

FindLaw columnist, Cornell Visiting Scholar, George Washington law professor, and Economics PhD Neil Buchanan comments on the ongoing debate regarding whether legislation authorizing further stimulus spending (including spending to cover unemployment benefits) should be passed. In particular, Buchanan takes issue with the argument -- made, for example, in a recent Washington Post editorial -- that those who advocate short-term stimulus spending lack credibility because they do not also offer a long-term plan to control future deficits. Buchanan contends that these two points should be de-coupled, and that current short-term stimulus proposals ought simply to be assessed on their own merits. Thursday, July 15, 2010

By MICHAEL DORF

Cases on Arizona's Immigrant-Investigation Law and the Defense of Marriage Act Show the Cross-Ideological Interplay Between Federalism and Individual Rights

FindLaw columnist and Cornell law professor Michael Dorf comments on recent two federal cases that address disparate subject matter -- immigrant rights, and same-sex marriage, respectively -- but both shed light on issues of federalism and individual rights. As Dorf explains, these two cases illustrate how federalism and rights concerns do not always line up the same way ideologically, nor do they always align with the same political party. In the immigrants' rights case -- the federal government's suit targeting Arizona's controversial law on immigration -- the federal government is taking a liberal position. But in the same-sex marriage case, the federal government is taking a conservative position by advocating against the recognition of state-authorized same-sex marriage for federal-law and federal-benefits purposes. Dorf explains and explores the interplay of federal and state law -- and the question whether federal law preempts (that is, trumps) state law in each case. Monday, July 12, 2010

By JOHN DEAN

How Harry Reid Might Respond to Sharron Angle's Planned "SLAPP" Suit

FindLaw columnist and former counsel to the president John Dean discusses the suit that may soon be filed by Nevada Republican Senate candidate Sharron Angle against her opponent Harry Reid, the Democratic Majority Leader of the US Senate. Angle is taking strong issue with Reid's republication of materials from her primary-campaign website. However, Dean contends that if Angle actually sues Reid over the republication, she may trigger Nevada's Anti-Strategic Lawsuits Against Public Participation ("Anti-SLAPP") law, which could be costly for Angle. Dean also describes how Angle's own admissions about the materials may separately undermine her suit. Friday, July 9, 2010

By MARCI HAMILTON

The Vatican Adjusts Its Child-Sex-Abuse Policies Again: A Reminder of How Statutes of Limitations Play a Nefarious Role

FindLaw columnist and Cardozo law professor Marci Hamilton comments on the Vatican's new policies regarding clergy-child-sex-abuse claims. The new policies would require an internal Church trial and call for compliance with civil reporting statutes. But Hamilton points out that internal trials will not protect children outside the church, who still may unknowingly face abusers; and that the Church has lobbied hard for clergy and confessional exceptions to the very civil reporting statutes it now says it will follow. Hamilton also takes issue with those who have opposed statute-of-limitations "windows" allowing a short period during which abuse claims that would have been time-barred are considered timely. Hamilton contends that the suggestion that plaintiffs will fabricate false claims, and that judges and juries won't know the difference, flies in the face of empirical realities. Thursday, July 8, 2010

By JOANNE MARINER

Talking to Terrorists: The Worst U.S. Supreme Court Decision of the Term

FindLaw columnist and human rights attorney Joanne Mariner discusses the Supreme Court's recent, end-of-Term decision in Holder v. Humanitarian Law Project. There, the Court held that peace and human-rights activists could not legally advise and train militant groups to use lawful means to achieve political ends. Specifically, the groups had wanted to (1) train Kurdish nationalists in Turkey on how to use international law to resolve disputes peacefully, and how to petition “representative bodies such as the United Nations” for relief; and (2) engage in political advocacy on behalf of the Kurds in Turkey and the Tamil Tigers in Sri Lanka. Mariner argues that the ruling -- which held that the First Amendment did not protect the activists' planned communications with the groups at issue from being characterized as illegal "material support" to terrorist groups under federal law--is among the top candidates for being the Term's very worst. Wednesday, July 7, 2010

By JULIE HILDEN

Elena Kagan on the First Amendment: Evidence from Her Confirmation Hearings

FindLaw columnist, attorney, and author Julie Hilden comments on the First-Amendment-related views that Supreme Court nominee Elena Kagan voiced during her confirmation hearings. The topics ranged from cameras in the Court, to campaign-finance restrictions, to libel law, to the possible intersection between antitrust law and the First Amendment. Hilden contends that Kagan's answers, at times, suggested that she is not as pro-First Amendment as might be desirable in a Justice -- and in particular, that Kagan may be underestimating the free-speech influence of the Internet and of the rapid change in the nature of the media business. Tuesday, July 6, 2010

By SHERRY COLB

The Supreme Court Denies A Public Employee's Privacy in Electronic Communications: What's Next?

FindLaw columnist and Cornell law professor Sherry Colb comments on the Supreme Court's recent, end-of-Term decision in Ontario v. Quon. Colb contends that the Court's outcome -- holding that a public employer can, under some circumstances, read the text messages an employee sends on an employer-owned pager that is meant to be used for work purposes -- should have been unsurprising to Court observers. She also explains that the case before the Court was made easier by a number of facts -- such as the employer's express warning to its employees that its policy was that it could read their texts without prior notice. Much more surprising than the outcome here, Colb contends, was the explicit decision by the Court to refrain from interpreting what privacy rights mean in the area of electronic communications, on the ground that the technology is in a state of flux. Colb argues that Justice Scalia was right to ask the Court not to shrink from deciding cases in this area of law. Tuesday, July 6, 2010

By VIKRAM DAVID AMAR

What the CLS v. Martinez Ruling Reveals About the Supreme Court's Processes

FindLaw columnist and U.C., Davis law professor Vikram Amar comments on three interesting insights that the Supreme Court's recent ruling in Christian Legal Society v. Hastings provides, regarding the Court's processes. The case pitted Hastings College of the Law -- a public law school that is part of the University of California system -- against the Christian Legal Society (CLS) group at Hastings. CLS sought funding and affiliation from Hastings, but denied non-believers and gay persons the ability to join. The Court held that Hastings could constitutionally withhold affiliation and funding from CLS. Amar explains how the Court's decision illustrates that, at the Court, (1) doctrine truly matters; (2) the concessions parties make in the course of litigation matter, too; and (3) the Court prefers to defer to institutional judgment when it can, and perhaps especially when the institution at issue is a university. Friday, July 2, 2010

By MARCI A. HAMILTON

CLS v. Martinez: The Supreme Court Rightly Holds that Public Law Schools Can Deny Affiliation and Funding to Religious Groups that Discriminate Against Gay Students

FindLaw columnist and Cardozo law professor Marci Hamilton comments on the Supreme Court's decision, issued this Monday, June 28th, in the case of CLS v. Martinez. As Hamilton explains, the case was brought by the Christian Legal Society (CLS) against Hastings, a public law school within the University of California system. CLS argued that Hastings infringed the constitutional rights of students who belonged to CLS's Hastings-based chapter when it denied the group law-school affiliation and the same funding other student groups enjoy. The reason the law school denied CLS the affiliation and funding was that CLS bars gay persons from being full members or leaders of CLS. Hamilton contends that the Court was correct to rule in favor of Hastings, and explains how the case fit into the Court's jurisprudence regarding public fora. Thursday, July 1, 2010

By NEIL H. BUCHANAN

The Debate Over Unemployment Benefits: Economics is Complicated, Heartlessness is Simple

FindLaw columnist, Cornell Visiting Scholar, George Washington law professor, and Economics PhD Neil Buchanan argues that the debate over extending Americans' unemployment benefits, in the midst of the Great Recession, shouldn't be happening at all. Buchanan contends that this issue is a no-brainer, as extending benefits is not only the compassionate thing to do, but also a measure that will predictably increase spending and thus bolster the economy. Buchanan also offers responses to those who oppose an extension of benefits based on the idea that unemployment benefits incentivize people not to work, or the idea that only "permanent" income (not limited-time payments) incentivizes people to spend money. Buchanan argues that neither of these ideas holds water when there are few or no jobs to be found; when benefits are stingy and short-term at best; and when workers have no choice but to spend the benefits they receive, to support their families. Thursday, July 1, 2010

By CARL TOBIAS

Confirming the Two North Carolina Nominees to the U.S. Court of Appeals for the Fourth Circuit

FindLaw guest columnist and U. Richmond law professor Carl Tobias calls for the confirmation of two jurists who have been nominated to the U.S. Court of Appeals for the Fourth Circuit: North Carolina Superior Court Judge Albert Diaz, and North Carolina Court of Appeals Judge James Wynn. Tobias explains why the Fourth Circuit has suffered lingering vacancies, and urges that the Circuit's ability to dispense justice will be hampered until it is operating with its full complement of judges. He also contends that Diaz and Wynn would make excellent additions to the Fourth Circuit -- noting that each is rated "well qualified" by the ABA, and each enjoys support from both North Carolina's Democratic Senator, Kay Hagan, and its Republican Senator, Richard Burr. Wednesday, June 30, 2010

By MICHAEL C. DORF

The Potentially Far-Reaching Implications of the Supreme Court's Ruling that the Second Amendment Binds the States

FindLaw columnist and Cornell law professor Michael Dorf weighs in on the Monday, June 28th, Supreme Court ruling holding that the Second Amendment's right to bear arms applies against the States, and not only the federal government, and that, therefore, the Second Amendment limits States' and localities' ability to ban handguns. The Court's ruling builds on its prior ruling that the Second Amendment limits the District of Columbia's ability to ban handguns. As Dorf explains, in this case, the Court had to confront not only the issue of whether the right to bear arms -- and specifically, a right to keep a gun for the defense of one's self and family in one's home -- applies against the States, but also what the constitutional basis for that holding is: the Due Process Clause, or the Privileges or Immunities Clause? Dorf also considers whether this Monday's decision indicates that the Court is open to incorporating -- that is, applying -- more, or even all, of the Bill of Rights to the States, and not simply to the federal government. Tuesday, June 29, 2010

By JOHN DEAN

Does the Judge Who Blocked Obama's Drilling Moratorium Suffer from an Unethical Conflict of Interest?

FindLaw columnist and former counsel to the president John Dean discusses important details regarding the possible conflict of interest on the part of U.S. District Judge Martin Leach-Cross Feldman, who recently granted a preliminary injunction against the U.S. Department of the Interior's planned six-month drilling moratorium for the Gulf of Mexico. Dean specifically describes the canon of judicial ethics that is at issue here, and the potential extent of Judge Feldman's conflict of interest, if he currently retains certain investments that he is known to have previously held. Dean also analyzes Feldman's decision regarding the preliminary injunction -- and faults the judge for failing to focus on the evidence in the way that such a motion merits. Friday, June 25, 2010

By CARL TOBIAS

The President's Proposed System for Compensating the BP Spill Victims: The Issues It May Raise

FindLaw guest columnist and U. Richmond law professor Carl Tobias comments on the issues that have yet to be resolved regarding the planned system for compensating those harmed by the BP Gulf oil spill. Among those issues, as Tobias explains, are how much BP may have to pay beyond the $20 billion it has put in escrow; what procedures the compensation system, headed by prior 9/11 Fund administrator Ken Feinberg, will use; what types of claims will and will not be paid; and what legislation will accompany the creation and administration of the compensation system. Thursday, June 23, 2010

By SHERRY F. COLB

The Miranda Right to Counsel Shrinks at the Supreme Court

FindLaw columnist and Cornell law professor Sherry Colb comments on a significant recent right-to-counsel Supreme Court decision, Maryland v. Shatzer. The case posed the following question: An incarcerated prisoner is interrogated about a second crime that he is suspected of committing. He invokes his Miranda rights to ask for an attorney, which cuts off the questioning. Two weeks later, while he is still incarcerated, police would like to re-approach him, to question him again about the second crime, while giving him new Miranda warnings. Can they do so? The Court answered yes, but Colb seriously questions the theory that drove the Court's result -- which suggested that a prisoner's returning to the general prison population, after being interrogated, is akin to a person outside of prison being released by the police being released after interrogation, and resuming his normal daily life. Wednesday, June 23, 2010

By JOANNA L. GROSSMAN

New York's Legislature Is on the Brink of Adopting True No-Fault Divorce: What the Change Would Mean for Unhappy Couples

FindLaw columnist and Hofstra law professor Joanna Grossman comments on the significance of New York's likely move to a system of no-fault divorce. The State is the last in the nation to still grant divorces only on the basis of a spouse's fault (or pursuant to a separation agreement, and after a full year has passed). Grossman explains the specific bases on which a New York divorce can currently be granted; describes the wave of 1970s divorce reform in which New York declined to participate; compares New York's current divorce law to that of other states; and considers the benefits of the recently-proposed change in the law. Tuesday, June 22, 2010

By JULIE HILDEN

Will the Internet End -- Or Simply Transform -- Libel Law?

FindLaw columnist, attorney, and author Julie Hilden comments on reports that the number of libel suits filed against media entities is dropping sharply -- and considers possible explanations as to why this is the case. Hilden also argues that libel law realities have long been unfair to defendants, and suggests why, in the age of the Internet, the longstanding law regarding libel may be outmoded in important ways. She argues for the federalization of libel law under uniform standards, and the abolition of local juries that give plaintiffs a home-state advantage. She also describes possible solutions such as a requirement that an allegedly libelous statement must always be conjoined, on the Internet, with a reply from the statement's target. Monday, June 21, 2010

By VIKRAM DAVID AMAR

Reflections on the Trial Challenging California's Proposition 8, the Ban on Same-Sex-Marriage

FindLaw columnist and U.C., Davis law professor Vikram Amar comments on the recent conclusion of the trial over California's Proposition 8, the state's voter-passed ban on same-sex marriage. Amar cautions that even if the plaintiffs win, we won't soon be seeing same-sex marriages performed in California, because the ruling -- which is expected to issue this summer -- would very likely be stayed pending appeal. He also explains the unique dynamics of review by the U.S. Court of Appeals for the Ninth Circuit, and considers the chances of the ultimate Ninth Circuit decision being reviewed by the U.S. Supreme Court -- noting that if the plaintiffs lose before the Ninth Circuit, and Proposition 8 is upheld, the Court is unlikely to take the case. Friday, June 18, 2010

By NEIL H. BUCHANAN

Drawing Lines for Business Behavior: Lessons from the Rand Paul Controversy and President Obama's Response to the Gulf Disaster

FindLaw columnist, Cornell Visiting Scholar, George Washington law professor, and Economics PhD Neil Buchanan makes an interesting connection between two recent controversies involving, respectively, Republican Senate candidate Rand Paul and President Obama. Buchanan contends that analysts -- such as one in the New York Times -- have let Paul off the hook too easily for his controversial remark on "The Rachel Maddow Show," disagreeing with the Civil Rights Act's prohibition on discrimination on the basis of race in the provision of goods and services. Rather than deeming such civil-rights controversies to be mere artifacts of the Sixties, as the Times analyst suggested, Buchanan contends that civil-rights law is alive and well, and that Paul's views on that area of law still matter, even though no one contends that Paul is himself a racist. Buchanan also argues that, at least since the Reagan era, too many Democrats have shared Reagan's and Paul's view that regulating business is inherently bad. He also notes that a reflexive trust in business may well have been one of the forces behind President Obama's much-criticized initial response to the BP oil spill disaster.
Thursday, June 17, 2010

By WALTER M. WEBER

Supreme Court Bungles False Claims Act Case

FindLaw guest columnist Walter Weber, Senior Litigation Counsel at American Center for Law and Justice, discusses the Supreme Court's recent decision in a False Claims Act case, Graham County Soil and Water Conservation District v. U.S. ex rel. Wilson. Weber explains how this decision creates new obstacles to the valuable private enforcement mechanism of qui tam suits.
Wednesday, June 16, 2010

By MICHAEL C. DORF

What's in Store for Elena Kagan? An Imagined Confirmation Hearing

What can we expect from this month's upcoming confirmation hearings for Supreme Court nominee, and current Solicitor General, Elena Kagan? FindLaw columnist and Cornell law professor Michael Dorf offers a humorous and telling account of how he imagines the confirmation hearings might go -- especially if Kagan and her questioners were much more candid than they are likely to be in reality.
Tuesday, June 15, 2010

By JOHN W. DEAN

President Obama's Scandal That Wasn't, and Still Isn't: The Alleged Promises to Sestak and Romanoff

FindLaw columnist and former counsel to the president John Dean comments on allegations that the Obama White House made illegal promises to Congressman Joe Sestak and to Andrew Romanoff, the former speaker of the Colorado House of Representatives, on the condition that each would not run for a Senate seat. Dean contends that this so-called scandal is really a non-scandal, or faux scandal. After analyzing the federal criminal statute that has been claimed to be implicated here, he concludes that both the Sestak and Romanoff discussions were clearly outside the scope of that law. Dean also notes that, in the past, there have been clear instances of Republicans promising jobs for political support -- and thus doing essentially the same thing that some Republicans now claim is a crime when done by the Obama Administration.
Friday, June 11, 2010

By MARCI A. HAMILTON

Reforming the Statute of Limitations for Child Sex Abuse: New York's Child Victims Act Shouldn't Be Political, But It Is

FindLaw columnist and Cardozo law professor Marci Hamilton comments on a bill that would have altered New York law on criminal and civil statutes of limitations for child sex abuse, but that was defeated in New York's Senate Codes Committee. As Hamilton explains, the bill would have extended criminal and civil statutes of limitations for child sex abuse by five years, and would have opened a year-long statute-of-limitations window, during which past victims could bring suit even if the applicable statute of limitations had previously expired. Hamilton sharply criticizes the legislators whose votes killed the bill. In particular, she faults them for going after the vandalism of church property aggressively, while at the same time opposing statute-of-limitations changes that would have aided in the prosecution of clergy child sex abuse.
Thursday, June 10, 2010

By JULIE HILDEN

Can Public Schools Constitutionally Punish Students' Off-Campus Speech? The U.S. Court of Appeals for the Third Circuit Will Decide

FindLaw columnist, attorney, and author Julie Hilden comments on two February 2010 Third Circuit panel decisions that were recently re-heard en banc by the Circuit. Both decisions involve public-school students who were suspended from school for creating fake MySpace pages that purported to be (but could not really have been mistaken for) pages authored by, and about, the principals of their schools. Hilden explains and contrasts the facts of the two cases, and contends that the ACLU's position that schools cannot constitutionally regulate off-campus speech is correct. She also argues that, while the students' conduct in the cases was not ideal, the principals' conduct was far worse: They even went so far as to go to the police to consider criminal charges against their own students, based on the parodic MySpace pages.
Wednesday, June 9, 2010

By JOANNA L. GROSSMAN

Lewis v. City of Chicago: The Supreme Court Protects the Rights of Disparate-Impact Discrimination Plaintiffs

FindLaw columnist and Hofstra law professor Joanna Grossman comments on a recent Supreme Court decision regarding disparate-impact discrimination. As Grossman explains, the underlying claim was that the cutoff score on an exam for would-be firefighters had a disparate impact on African-American candidates, but the key issue in the case was whether the would-be firefighters had filed their claims soon enough for the claims to be timely. The Court ultimately decided that the claims had, in fact, been timely. Grossman explains in detail why the Court reached that conclusion, and traces the line of anti-discrimination-law precedent that it relied upon in coming to its result.
Tuesday, June 8, 2010

By SCOTT GERBER and KEVIN HAWLEY

Elena Kagan and the Return to Feudalism

FindLaw guest columnists Scott Gerber, an Ohio Northern law professor, and Kevin Hawley, an Ohio Northern distinguished practitioner in residence, take issue with a repeated theme in the debate over Elena Kagan's Supreme Court nomination: the theme of elitism. Gerber and Hawley contend that Kagan's Harvard Law School attendance and, later, deanship, have caused many to fail to fully and fairly examine the rest of her record. They note that their quibble is not so much with Kagan herself -- as they believe she would be a fine Justice -- as with those who believe that her Harvard connections mean that little further inquiry, or accomplishment, is necessary. In particular, Gerber and Hawley point to editorials supporting Kagan by Professor Mark Tushnet and Dean Christopher Edley as exemplifying the problem.
Monday, June 7, 2010

By SHERRY F. COLB

The Supreme Court Holds That Responding to Police Interrogation Waives The Right to Remain Silent

FindLaw columnist and Cornell law professor Sherry Colb comments on a recent Supreme Court decision regarding the scope and meaning of the famous "right to remain silent" established by the Court in Miranda v. Arizona. As Colb explains, the Court held that a suspect who had been read his Miranda rights, and then was subjected to an almost three-hour-long near-monologue of police questioning, still waived those rights when he finally responded to the police. Colb -- who predicted this very holding at an earlier stage of the case -- argues that the Court's decision breaks with the spirit of Miranda, which was meant to serve as a genuine protection against coercive interrogation.
Monday, June 7, 2010

By VIKRAM DAVID AMAR

What Does It Mean to "Let the People Decide"? California's Proposition 16, Supermajority Rules, and the Unhelpfulness of Political Ads

FindLaw columnist and U.C., Davis law professor Vikram Amar comments on California's Proposition 16, which would impose a supermajority voting rule when municipal officials make decisions to invest money in providing electric service. Amar faults the publicity campaign for the Proposition for leaving out its supermajority component, and presenting the issue as simply one as to whether the public should have a right to vote. Amar also contends that there are only two categories of situations where supermajority voting rules truly make sense, and questions whether Proposition 16 fits into either of them.
Friday, June 4, 2010

By NEIL H. BUCHANAN

In the Wake of the Gulf Oil Disaster, We Must Conserve Energy, Develop Alternatives, and Revisit the Choice Among Oil, Coal, and Nuclear Energy

What can we learn from the Gulf oil disaster? FindLaw columnist, Cornell Visiting Scholar, George Washington law professor, and Economics PhD Neil Buchanan suggests that there are a number of lessons that this event can teach us, regarding the energy choices we should make. Now, he notes, we know some things we did not know before the disaster: We know that this kind of low-probability event really can happen, and we know what its actual, not just theoretical, costs can be. In addition to reminding us that we need making conservation even more of a priority, Buchanan contends, the Gulf disaster may teach us that of our energy choices, coal is the most attractive. Although the coal option, too, has serious flaws, Buchanan argues, the worst-case scenarios for coal are far less bad than those for oil, which risks more Gulf-like disasters, or for nuclear energy, where another Chernobyl or a terrorist incident, is possible.
Thursday, June 3, 2010

By MICHAEL C. DORF

A Unanimous Supreme Court Decision on the Foreign Sovereign Immunities Act Highlights Ongoing Divisions Over Legislative History

FindLaw columnist and Cornell law professor Michael Dorf comments on this week's ruling in Samantar v. Yousuf, a human-rights case that was brought against the former Vice-President, Defense Minister, and Prime Minister of Somalia -- who then claimed immunity under the Foreign Sovereign Immunities Act. As Dorf explains, the Supreme Court was unanimous in denying immunity, but splintered as to how, precisely, to read the Act. Dorf discusses the different perspectives on statutory interpretation -- textualist and purposivist -- that informed the Justices' views.
Wednesday, June 2, 2010

By JOHN DEAN

Messing With Miranda To Fight Terrorism: Obama's Playing Politics With Limited Options, Part 2

FindLaw columnist and former counsel to the president John Dean continues his two-part series of columns on the controversy over the Obama Administration's discussion of whether to modify the public-safety exception to Miranda rights when the person being interrogated is a terrorism suspect. Here, in Part Two, Dean notes that a statute embodying a modification of the public-safety exception may well be in the works. He also compares and contrasts George W. Bush's, Dick Cheney's, and President Obama's respective stances on what the law regarding terrorism should look like, and the extent to which it should be civilian or military.
Friday, May 28, 2010

By CARL TOBIAS

Why Jane Branstetter Stranch Should Be Quickly Confirmed to a Seat on the U.S. Court of Appeals for the Sixth Circuit

FindLaw guest columnist and U. Richmond law professor Carl Tobias highlights the delays affecting one federal appeals court nominee's confirmation hearing and vote, while also providing a larger perspective as to the continuing delay in filling the substantial number of federal appeals court vacancies across the nation. The nominee on whom Tobias focuses is Jane Branstetter Stranch, a well-respected Nashville attorney whom the President has nominated for a seat on the U.S. Court of Appeals for the Sixth Circuit. Especially given that Stranch enjoys the support of Tennessee's two Republican Senators, and was approved by the Senate Judiciary six months ago, Tobias contends that Stranch deserves a hearing that occurs as soon as possible, and deserves to be confirmed.
Friday, May 28, 2010

By VON G. KEETCH

Protecting Children in the Church of Jesus Christ of Latter-Day Saints

FindLaw guest columnist Von Keetch -- who has worked closely with the LDS Church on child abuse issues for twenty years, and has served as an ecclesiastical leader in the Church -- defends the LDS Church's positions and actions regarding the clergy-child-sex-abuse issue, and, in particular, regarding the question of when and how abuse should be reported. Keetch is responding to an April 15 column by FindLaw columnist and Cardozo law professor Marci Hamilton, which argued that the LDS Church has much work to do in this area.
Thursday, May 27, 2010

By MARCI A. HAMILTON

A Reply to Von Keetch's Comments on Clergy Child Sex Abuse and the Church of Jesus Christ of Latter-Day Saints

FindLaw columnist and Cardozo law professor Marci Hamilton continues the dialogue that she began with her April 15 piece on the Church of Jesus Christ of Latter-Day Saints's handling of claims of clergy child abuse, which argued that the LDS Church has much work to do in this area. After Hamilton's column appeared, FindLaw posted a responsive column by Von Keetch -- who has worked closely with the LDS Church on child abuse issues for twenty years, and has served as an ecclesiastical leader in the Church -- defending the LDS Church's positions and actions on this issue. Here, Hamilton responds to Keetch, explaining why -- in light of Keetch's response, the Church's lobbying efforts, and a number of emails from readers belonging to the Church -- she still believes the LDS Church must change its stance.
Thursday, May 27, 2010

By SHERRY F. COLB

High Court Rejects Life Without Parole for All Juvenile, Non-Homicide Crimes

FindLaw columnist and Cornell law professor Sherry Colb discusses a recent, highly significant Supreme Court decision, Graham v. Florida. As Colb explains, the Court held that it is an Eighth Amendment violation to sentence a juvenile to life imprisonment without parole for the commission of a lesser crime than homicide. Colb sets forth the facts of the case, explains why the Eighth Amendment claim that was made was audacious, puts the decision in the context of prior Eighth Amendment precedent, and explains what the Justices' views on this case may mean for future cases. In particular, Colb explains why Eighth Amendment cases -- which typically have involved death penalty challenges -- may now more frequently include challenges to lengthy prison sentences.
Wednesday, May 26, 2010

By JOANNA L. GROSSMAN

New York's Highest Court Recognizes A Lesbian Co-Parent's Rights, But Affirms an Unpopular Precedent: Part Two in a Two-Part Series

FindLaw columnist and Hofstra law professor Joanna Grossman continues her two-part series of columns regarding a recent, important family-law/same-sex-partnership decision by the New York Court of Appeals -- the state's highest court. As Grossman explains, the Court held that a woman whose same-sex partner gave birth to a child (via donor sperm) during the course of their Vermont civil union (which is now ended), and who alleges that she co-parented that child for several years, may seek visitation with, or custody of, the child -- despite the objections of her former partner. Here, in Part Two, Grossman discusses an alternative ground upon which the court could have granted recognition of the same-sex partner's parental rights: the de facto parentage doctrine, which looks to the functional parent-child relationship in a particular case, and not the formal ties, to determine if someone is a parent.
Tuesday, May 25, 2010

By JULIE HILDEN

The New Jersey Supreme Court Recognizes a Conditional Privilege to Report on Plaintiffs' Initial Pleadings Without Fear of a Libel Suit

FindLaw columnist, attorney, and author Julie Hilden comments on a recent New Jersey Supreme Court libel-law decision. In the decision, the court recognized a conditional privilege against libel claims based on news stories that report on plaintiffs' complaints after the complaints are filed at the courthouse. As Hilden explains, plaintiffs' filed complaints themselves have long enjoyed an absolute privilege from libel suits; the question here was whether news reports about those complaints also enjoy a privilege and if so, if that privilege is conditional or absolute. The New Jersey court held that there is a conditional privilege for such reports if they are "full, fair and accurate"; Hilden argues that a strong case can be made for going further and recognizing an absolute privilege here, especially since application of the "fair" prong may be highly subjective and possibly political.
Monday, May 24, 2010

By VIKRAM DAVID AMAR

Elena Kagan's Confirmation Hearings: Her Lack of Judicial Experience May Not Matter, But a Key Essay She Wrote Might

FindLaw columnist and U.C., Davis law professor Vikram Amar comments on the issues that may arise in the upcoming Supreme Court confirmation hearings of Elena Kagan. Amar contends that, while much has been made of Kagan's lack of judicial experience, that argument may well have been given too much weight: He points out that previous nominees have been confirmed (and gone on to make excellent Justices) despite either a complete lack of judicial experience, or judicial experience that was too limited to be a good predictor of their likely performance on the Court. Still, Amar adds, Kagan is likely to face aggressive questioning for another, better reason: She herself has written that Court nominees should face far more searching questions than have been posed in recent confirmation hearings. Having accused prior nominees of "stonewalling," Amar suggests, Kagan cannot very well stonewall questioners herself.
Friday, May 21, 2010

By NEIL F. BUCHANAN

Why New York's (and Other Jurisdictions') Food Regulations Do Not Violate Freedom of Choice: The False Notion That Our Tastes Are of Our Own Making

FindLaw columnist, Cornell Visiting Scholar, George Washington law professor, and Economics PhD Neil Buchanan responds to arguments that food regulations such as New York City's -- which both provide information to consumers about food, and seek to change the types of food that are sold in the city -- are an unacceptable incursion on Americans' freedom. Buchanan urges readers, before condemning such regulations, to consider the ways in which our food choices are already far from free -- for instance, we are influenced by eating habits formed when we were young children, surrounded by the results of our culture's deep-seated views on food, and affected by food industry messages that serve the interests of profit, not health, and have contributed to our obesity -- and childhood obesity -- crisis.
Thursday, May 20, 2010

By MICHAEL C. DORF

The Supreme Court's Decision About Sexually Dangerous Federal Prisoners: Could It Hold the Key to the Constitutionality of the Individual Mandate to Buy Health Insurance?

FindLaw columnist and Cornell law professor Michael Dorf offers an interesting take on the Supreme Court's decision, issued this week, regarding the civil confinement of federal prisoners who have served their criminal sentences, yet are found to be mentally ill and "sexually dangerous." Dorf explains the basis for the Court majority's holding allowing the civil confinement of such criminals, and also notes the basis for the dissent. In addition, he connects the issues the case raises to the issues raised by those who object to the federal government's imposing a mandate on individuals to purchase health insurance -- and explains the role such issues might play in Supreme Court nominee Elena Kagan's confirmation hearing, and how Kagan might best respond.
Wednesday, May 19, 2010

By JOANNE MARINER

More Questions About Drones

FindLaw columnist and human rights attorney Joanne Mariner follows up on her earlier piece on the United States' use of drones -- unmanned aerial vehicles -- by contrasting views of the drone program in the U.S. and in Pakistan, where substantial numbers of drone strikes have occurred. Mariner points out that only when a U.S. citizen became a target, did the drone program trigger Congressional hearings. Meanwhile, in Pakistan -- where Mariner points out that over 1,000 Pakistanis, including innocent civilians, have been killed in drone attacks since 2004 -- public scrutiny of the program has been more longstanding, and highly negative, and there is a strong belief that the drone attacks have actually increased support for militants.
Monday, May 17, 2010

By JOHN W. DEAN

Messing With Miranda Rights To Fight Terrorism: Did Attorney General Holder Need A Warning, Too?

FindLaw columnist and former counsel to the president John Dean comments on Attorney General Eric Holder's indication, during recent television appearances, that the Obama Justice Department may be inclined to change its policy regarding reading terrorism suspects their Miranda rights. Dean argues that two aspects of Holder's appearances were disturbing: First, Dean observes that Holder's comments seemed to evolve from tentative ideas into possible policy through journalistic questioning. Second, Dean contends that if a change to Miranda policy is truly forthcoming, then it will place the Obama Administration to the right of even the Bush/Cheney Administration on the issue, will seriously harm the U.S.'s recently-much-improved human-rights image; and will contravene what we know about Miranda in practice.
Friday, May 14, 2010

By MARCI A. HAMILTON

A Cartoonist Faces Backlash, in Sweden and the U.S., for Depicting Mohammed as a Dog: The First Amendment Lessons

FindLaw columnist and Cardozo law professor Marci Hamilton weighs in on the controversy over violent reactions to cartoons that depict Mohammed in ways that Muslim believers see as sacrilegious. In particular, she discusses a recent peaceful protest over the work of Swedish artist Lars Vilks, who had depicted Muhammad as a dog, which turned violent; and the plot against Vilks by a Pennsylvania woman, Colleen LaRose, who has since been nicknamed "Jihad Jane." Hamilton counsels that the United States -- and other countries -- must not back down from free-speech ideals, and must protect the writers and artists of controversial works. In support of her point, she cites a line of Supreme Court precedent that draws clear lines between permitted speech and illegal violence.
Thursday, May 13, 2010

By SHERRY F. COLB

"Not Milk?": Dairy Petitions the FDA to Block Labels Like "Soy Milk" on Non-Dairy Products

FindLaw columnist and Cornell law professor Sherry Colb contends that the Food and Drug Administration (FDA) should reverse the regulations that it recently promulgated in response to a petition from the dairy industry. The petition sought to stop producers of non-dairy food from using terms such as "milk," "cheese," "ice cream," "sour cream" and "yogurt" to describe their products, and the regulations and warning letters that the FDA has since issued have followed suit. The industry group that filed the petition claims that the use of these words on labels falsely conveys to consumers that non-dairy products are "something they are not." However, Colb counters that it is the dairy producers that have failed to fully disclose the nature -- including the health consequences -- of the products they sell. Colb also argues that there is little likelihood of product confusion here, since those who buy soy milk and similar products are specifically trying to avoid dairy by opting for a substitute, not purchase it.
Wednesday, May 12, 2010

By JOANNA L. GROSSMAN

New York's Highest Court Recognizes A Lesbian Co-Parent's Rights, But Affirms an Unpopular Precedent: Part One in a Two-Part Series of Columns

FindLaw columnist and Hofstra law professor Joanna Grossman commences her two-part series of columns on questions related to a recent, important family-law/same-sex-partnership decision by the New York Court of Appeals -- the state's highest court. As Grossman explains, the Court held that a woman whose same-sex partner gave birth to a child (via donor sperm) during the course of their Vermont civil union (which is now ended), and who alleges that she co-parented that child for several years, may seek visitation with, or custody of, the child -- despite the objections of her former partner. Grossman notes that while the decision may seem to be good news for non-traditional families, that is not entirely true: She explains that the decision also left intact a New York precedent that puts those who functionally co-parent a child for years-- but who are not linked to the child through birth or adoption, and who never formalize their relationship with the co-parent -- at risk of never seeing the child again.
Tuesday, May 11, 2010

By JULIE HILDEN

The Supreme Court's "Violent" Video Games Case: The California Law Should Be Struck Down, But the Court May Well Uphold It

FindLaw columnist, attorney, and author Julie Hilden discusses a First Amendment case that the Supreme Court recently decided to review. The case concerns a California law that would restrict the sale of "violent" video games to minors, and would mandate the labeling of such games -- despite the fact that the industry already has its own labeling system, which is age-specific and content-specific. Hilden praises the decision in favor of the video-game makers and sellers by the U.S. Court of Appeals for the Ninth Circuit, but predicts that the Supreme Court is likely to rule the other way. She also argues that the implications of a ruling against the video game industry could not be cabined, and would set a precedent even for the banning of books depicting violence.
Monday, May 10, 2010

By VIKRAM DAVID AMAR

President Obama's Pick to Fill Justice Stevens's Seat: The Valid -- and Wrong-Headed -- Considerations Regarding the President's Choice

FindLaw columnist and U.C., Davis law professor Vikram Amar weighs in on the considerations that President Obama should, and should not, take into account when choosing a new Justice to fill the seat of Justice John Paul Stevens, who is retiring. In particular, Amar discusses how large a role the upcoming congressional elections should play; whether Obama should take gender diversity into account (and if so, now or possibly for the next open seat); and whether the number of Harvard and Yale Law graduates who have served on the Court ought to militate in favor of preferring graduates of other law schools.
Friday, May 7, 2010

By NEIL F. BUCHANAN

Oil Spills, Mine Disasters, and Everyday Environmental Degradation: The Suddenly Unhidden Costs of Our Standard of Living

FindLaw columnist, Cornell Visiting Scholar, George Washington law professor, and Economics PhD Neil Buchanan comments on the lessons we can learn from the Gulf of Mexico oil spill disaster and similar incidents. Buchanan examines the true costs associated with environmental harms, and notes that the spill disaster has brought with it not only new harms, but also new information that must now be taken into account in our decision-making -- for instance, information about flaws in our safety and mitigation technologies. Buchanan also raises the deeper question of whether, as Americans, we have made costly mistakes in our lifestyle choices by refusing to make outlays of money (such as for high-speed trains) that would have been beneficial in the long run, and opting for environmentally-damaging choices such as driving cars and eating copious amounts of meat. He stresses that we need to take into account not just direct costs, but invisible or low-visibility indirect costs as well, in assessing the toll our policy and lifestyle choices take.
Thursday, May 6, 2010

By ANITA RAMASASTRY

Why the Judge in the Casey Anthony Trial Was Right to Recuse Himself Due to His Remarks to a Blogger

FindLaw columnist and U. Washington law professor Anita Ramasastry discusses an instance in which a Florida state judge recused himself because of comments he had made to a blogger who was covering a trial over which he was presiding. The defendant in the trial is Casey Anthony, who is charged with killing her two-year-0ld daughter, Caylee. Ramasastry notes that the judge's remarks to the blogger seem to have been relatively innocuous, but she contends that, since Florida's recusal standard is quite low, the judge likely did the right thing in recusing himself. She also notes that, in some states, judges themselves may be able to blog as long as they comply with certain relevant ethics rules.
Thursday, May 6, 2010

By MICHAEL C. DORF

The New Arizona Immigration Law Raises an Old Question: What is "Reasonable Suspicion"?

FindLaw columnist and Cornell law professor Michael Dorf comments on a provision of Arizona's highly controversial new immigration law -- requiring a law enforcement official who possesses "reasonable suspicion" that a person with whom he has lawfully come in contact may be an illegal immigrant to seek to ascertain that person's immigration status. Drawing on Supreme Court precedent, Dorf explains how "reasonable suspicion" has been defined. He also comments on the law's requirement that the basis for the suspicion must be "articulable" -- that is, more than just an unexplainable hunch. Dorf notes that in some instances, hunches have been shown to be more accurate than an analysis of articulable factors -- but adds that there may still be good reason for courts to require an articulable basis for suspicion before the legal requirement can be fulfilled.
Monday, May 3, 2010

By MARCI A. HAMILTON

How Other Religious Organizations Echo the Roman Catholic Church's Rule Against Scandal, A Precept that Entrenches and Perpetuates Cycles of Child Sex Abuse: Orthodox Judaism, Part Two in a Two-Part Series

FindLaw columnist and Cardozo law professor Marci Hamilton continues her series on how the precepts of religious institutions other than the Catholic Church affect those institutions' ability to respond effectively to clergy child sex abuse. In this column, Hamilton focuses on institutions within the Orthodox Jewish community, commenting on the way in which particular principles may inhibit those within the community from reporting abuse to outside authorities. Hamilton praises the Orthodox community for seemingly moving quickly toward the conclusion that child victims' needs must trump religious institutions' preferences, but notes that the ultra-Orthodox Jewish community still has a very long way to go on the reporting issue.
Thursday, April 29, 2010

By SHERRY F. COLB

Nebraska Passes Law Prohibiting Abortion After Twenty Weeks: Implications for Abortion and Animal Rights

FindLaw columnist and Cornell law professor Sherry Colb comments on a new Nebraska law that will go into effect later this year, which will prohibit any abortion in the state that would occur after the twentieth week of pregnancy. Colb explains that the express reason that the twentieth-week cutoff was chosen is that it is the point at which some experts believe that a fetus begins to feel pain. Colb situates the law in the context of Supreme Court abortion precedent and the arguments that are made in the political debate over abortion. She also considers the possible implications of the law -- and the theory behind it -- for abortions that occur prior to the twenty-week cutoff. Finally, she raises a parallel between this controversy and controversies regarding animal rights: If suffering is a key benchmark for granting legal protection, then shouldn't animals -- who suffer terribly when used for food, experimentation and other purposes -- receive legal protection to prevent that suffering?
Wednesday, April 28, 2010

By JOANNE MARINER

Questions for the Obama Administration on its Drone Warfare Program

With Congressional hearings beginning shortly on the Obama Administration's drone warfare program, FindLaw columnist and human rights attorney Joanne Mariner proposes questions that she contends ought to be asked regarding the program -- through which the CIA uses unmanned aerial vehicles ("drones") to fire missiles at suspected militants in Pakistan and elsewhere. Mariner notes that the Obama Administration is making significantly more frequent use of the drone program than the Bush Administration did, and explains why drone strikes may raise complex questions under international human rights and humanitarian law. Accordingly, she offers specific questions that she argues should be asked about the program -- especially regarding possible killings of civilians, and about how targeting decisions are made.
Tuesday, April 27, 2010

By JOANNA L. GROSSMAN

Defending Equality in Athletics: The Obama Administration Repeals a Controversial Bush Era Policy

FindLaw columnist and Hofstra law professor Joanna Grossman comments on a recent policy change related to Title IX, which guarantees equal athletic opportunity for both genders, and the regulations promulgated under Title IX. Under the regulations, a college must show, among other things, that it has“fully and effectively accommodated the interests and abilities of the members of the underrepresented sex" -- typically, women. The George W. Bush Administration's policy was that this showing could be made via a student email survey alone. As Grossman explains, the Obama Administration, while keeping email surveys in the mix, is also conducting a more probing analysis to ensure that equality of athletic opportunity truly exists.
Tuesday, April 27, 2010

By JULIE HILDEN

The Supreme Court Strikes Down a Law Prohibiting the Creation, Sale, or Possession of Videos of Animal Cruelty: The Decision and Justice Alito's Powerful Dissent

FindLaw columnist, attorney, and author Julie Hilden comments on the Supreme Court's recent decision in US v. Stevens striking down the federal law criminalizing the creation, sale or possession of videos of animal cruelty. Hilden argues that Justice Alito's lone dissent was more convincing than the Court's eight-Justice majority opinion. In particular, she focuses on strong parallels between a possible First Amendment exception that would have allowed the law to stand, and prior First Amendment exceptions that the Court has already carved out in other areas.
Monday, April 26, 2010

By VIKRAM DAVID AMAR and ALAN BROWNSTEIN

Can a Public Law School Constitutionally Require a Christian Student Group Not to Exclude Non-Christians and Gay Persons? The Supreme Court Will Decide

FindLaw columnist Vikram Amar and FindLaw guest columnist Alan Brownstein, both U.C., Davis law professors, weigh in on the issues raised by CLS v. Martinez, an important free speech/free association case in which the Supreme Court held oral argument this week. As Amar and Brownstein explain, the case arose because the Hastings College of the Law in San Francisco, a public law school, refused to grant official recognition to the Hastings chapter of the national Christian Legal Society (CLS), on the ground that it will not allow gay students to become voting members or officers. Amar and Brownstein explore several significant aspects of the case, including the relevance, here, of the difference between discrimination based on status and discrimination based on belief; and how these issues would play out with "religion and" clubs such as, say, a Christian Chess Club. They foresee a "doctrinal trainwreck" if some of the conflicts among the Court's precedents are not sorted out soon.
Friday, April 23, 2010

By MARCI A. HAMILTON

More on the Supreme Court's CLS v. Martinez Case, Which Asks Whether a Public Law School Can Deny Funding and Recognition to a Student Christian Organization that Excludes Gay Students: A Response to Mr. Baylor

FindLaw columnist and Cardozo law professor Marci Hamilton continues a dialogue regarding the constitutional issues raised by the case of CLS v. Martinez -- which was argued before the Supreme Court this week. The case raises the issue whether a public law school can require that -- to gain official recognition and funding -- student groups essentially accept all comers. The group at issue was the Christian Legal Society (CLS), which sought to exclude gay law students from becoming officers or prayer leaders. Hamilton defended the law school's stance in an earlier column for this site; CLS attorney Gregory Baylor responded; and Hamilton now replies to the points Baylor raised, while also commenting on the oral argument before the Court.
Thursday, April 22, 2010

By NEIL F. BUCHANAN

Do Some Americans Pay No Taxes? The Contrived Claims That Everyone Must Help Pay for the Government

FindLaw columnist, Cornell Visiting Scholar, George Washington law professor, and Economics PhD Neil Buchanan addresses the argument -- which has been made recently by USA Today's editorial staff and others -- that every American above the poverty level should pay at least some minimal amount of taxes, so that they will have a stake in our system. The argument was triggered by reports that, currently, forty-seven percent of Americans pay no federal income tax. Buchanan responds with a number of points -- including the point that it will be difficult to define the minimal stake that USA Today would require; the point that even those who earn minimum wage and support families must still pay, percentage-wise, the same state sales tax that much wealthier people pay; and the point that the rich benefit disproportionately from some of the services (such as those of our legal system) that taxes fund.
Thursday, April 22, 2010

By MICHAEL C. DORF

Becoming Justice Stevens: How and Why Some Justices Evolve

FindLaw columnist and Cornell law professor Michael Dorf reflects on the career of retiring U.S. Supreme Court Justice John Paul Stevens. In particular, Dorf focuses on Stevens's career on the Court as a case study of how Justices evolve during their tenure. Dorf tackles questions such as why some Justices -- including Stevens, who moved toward more liberal stances on topics such as the death penalty and affirmative action -- tend to move leftward during their years on the Court. He also notes examples of other Justices whose views changed in important ways, and raises the question why Justices often seem to become more liberal: Is the explanation changing social attitudes, a liberal bias in American law, and/or another factor or factors?
Wednesday, April 21, 2010

By GREGORY S. BAYLOR

Freedom of All Student Groups at Stake in CLS case at Supreme Court

FindLaw guest columnist and Senior Legal Counsel for the Alliance Defense Fund Gregory S. Baylor -- who is co-representing the University of California, Hastings College of Law chapter of the Christian Legal Society (CLS) before the Supreme Court in a pending case -- explains CLS's argument that U.C., Hastings cannot constitutionally deny the chapter funding because it excludes homosexual students from being officers or prayer leaders. Baylor's column responds to a prior column by FindLaw columnist and Cardozo law professor Marci Hamilton defending the constitutionality of U.C. Hastings's policy.
Monday, April 19, 2010

By JOANNE MARINER

UN Security Council Seeks an Eminent Individual for an Impossible Job

FindLaw columnist and human rights attorney Joanne Mariner discusses a new United Nations position: that of the ombudsperson whose job it will be to bring greater fairness to the UN Security Council’s Al Qaeda and Taliban targeted sanctions regime. As Mariner explains, the UN maintains a list of persons who are thought to be affiliated with Al Qaeda or the Taliban, but the delisting process is deeply flawed: Even deceased persons remain on the list; those who want to challenge the fact that they have been put on the list are not afforded due process guarantees; and prior notice is not given before a person is listed. The UN's latest move toward greater fairness has been the creation of the ombudsperson's office, but for reasons Mariner explains, that person will face a difficult, if not impossible, challenge -- in part because he or she will lack true decisionmaking power.
Friday, April 16, 2010

By MARCI A. HAMILTON

How Other Religious Organizations Echo the Roman Catholic Church's Rule Against Scandal – A Precept that Entrenches and Perpetuates Cycles of Child Sex Abuse: Church of Jesus Christ of Latter-Day Saints, Part One in a Two-Part Series

In Part One in a two-part series of columns, FindLaw columnist and Cardozo law professor Marci Hamilton contends that children doubtless are being, and have been, sexually abused within large, mainstream religious organizations other than the Catholic Church, and yet their stories have never been told. Hamilton blames the situation on a combination of theological rules of secrecy and -- in some states -- secular legal rules that allow the protection, in litigation, of certain intra-church communications. In this column, Hamilton describes the internal reporting rules of the Church of Jesus Christ of Latter-Day Saints ("LDS") and the law governing reporting in Utah, where LDS is headquartered, and elsewhere.
Thursday, April 15, 2010

By SHERRY F. COLB

Federal Appeals Court Rejects Preemption Claim Against California "Downed Animal" Law: A Victory for Animal Rights?

FindLaw columnist and Cornell law professor Sherry Colb discusses a recent decision by the U.S. Court of Appeals for the Ninth Circuit, which allowed, for now, the full enforcement of a California law that bans the slaughter of animals unable to stand or walk to their death without assistance, and requires that slaughterhouses immediately euthanize such animals in a humane fashion. The National Meat Association claimed that the California law was preempted by the Federal Meat Inspection Act, but the Ninth Circuit reversed a district court's preliminary injunction against the California law's enforcement. Colb argues that the Ninth Circuit made the right call on federal preemption, but notes that from an animal rights perspective, the California law does not come close to going far enough in protecting animals.
Wednesday, April 14, 2010

By JOANNA L. GROSSMAN

If Sandra Bullock Divorces Jesse James, What Rights or Privileges Will She Have With Respect to His Young Daughter Sunny, Whom She Has Helped Raise?

FindLaw columnist and Hofstra law professor Joanna Grossman considers an important family-law aspect of the Jesse James cheating scandal: If Sandra Bullock divorces James, will she be able to gain either partial custody of, or visitation rights with, Sunny -- James's six-year-old daughter, whom Bullock has played an important role in raising? Grossman explains that Bullock's gaining partial custody of Sunny is unlikely, because James's ex-wife remains Sunny's legal mother. However, Grossman concludes that Bullock may have a strong hope of gaining some legally-guaranteed visitation with Sunny, in part because a family law judge has, in the past, recognized Bullock's vital role in the girl's life. Grossman also explains other approaches that Bullock might take in attempting to get more time with Sunny, such as seeking to be deemed Sunny's "de facto parent," but notes that they are unlikely to succeed.
Tuesday, April 13, 2010

By JULIE HILDEN

Constance McMillen and the Prom: A Discrimination Issue, But a Case Decided on First Amendment Grounds

FindLaw columnist, attorney, and author Julie Hilden discusses an interesting aspect of the Constance McMillen prom controversy: Although the case involved discrimination, the ACLU sued on a First Amendment theory. Hilden explains why a Mississippi public school's decision to forbid Constance from bringing her girlfriend to the prom raised First Amendment issues, under Supreme Court doctrine addressing speech mixed with conduct. Hilden also criticizes the judge in Constance's case from declining to grant a preliminary injunction -- even despite his findings that she was likely to win on the law, that she would be injured without such an injunction, and that the injury she would suffer would be greater than the burden the injunction would place on the school board. Hilden faults the judge for being too trusting, and for shifting government obligations onto private parties, by accepting the solution of a private prom, which was not equal-access as the judge had envisioned.
Monday, April 12, 2010

By VIKRAM DAVID AMAR and KEVIN R. JOHNSON

Why U.S. News and World Report Should Include a Faculty Diversity Index in its Ranking of Law Schools

FindLaw columnist and U.C., Davis law professor Vikram Amar, and FindLaw guest columnist and U.C., Davis Dean and law professor Kevin Johnson continue their series critiquing the highly influential US News and World Report law school rankings. In a previous column, Amar and Johnson contended that the rankings should take student-body diversity into account; here, they argue that faculty diversity, too, should be a significant factor in the rankings' assessment of law schools' quality, as it contributes to both the quality of education a law school provides its students, and the quality of the law school's faculty's scholarship.
Friday, April 9, 2010

By NEIL H. BUCHANAN

High Unemployment and Political Extremism: How Much Worse Might Political Conditions Become if the Job Market Remains Depressed?

FindLaw columnist, Cornell Visiting Scholar, George Washington law professor, and Economics PhD Neil Buchanan comments on the harms, both direct and indirect, that are being caused by our dire unemployment situation. In particular, Buchanan focuses on the risk that continuing high levels of unemployment could trigger significant social unrest: Could recent incidents be the leading edge of a wave of violence and political extremism in America? Buchanan warns that this potential harm of unemployment should not be ignored simply because it is less easily quantified than unemployment's other costs.
Thursday, April 8, 2010

By ANITA RAMASASTRY

What's a Domain Name Worth? The Sex.com Auction is Stopped, as Creditors Try to Maximize the Name's Value

FindLaw columnist and U. Washington law professor Anita Ramasastry explains the legal context of the fight over the multi-million-dollar domain name sex.com. She begins by describing the auction that was originally planned; cites estimates of the domain name's value; explains why the auction was halted; and provides the procedural background necessary to understand the federal bankruptcy proceeding that will likely be the mechanism by which the domain name will next change hands.
Wednesday, April 7, 2010

By MICHAEL C. DORF

A Federal Judge Rules Against the Government in a Warrantless Wiretapping Suit

FindLaw columnist and Cornell law professor Michael Dorf comments on a recent court decision regarding warrantless wiretapping and the Foreign Intelligence Surveillance Act (FISA). Dorf focuses, in particular, on comparing and contrasting the Obama Administration's stance on this issue with the Bush Administration's prior stance -- pointing out that the stances are much more similar than some might have expected or predicted. He evaluates some factors that might be thought to explain the similarity -- including the fact that the plaintiff organization in the wiretapping case at issue has since been dissolved due to its alleged support for Al Qaeda; the political cost of allowing courts to reject or diminish the state secrets privilege; and the differing institutional dynamics that may change the views of a Senator who later becomes President.
Monday, April 5, 2010

By NEIL H. BUCHANAN

Social Security Scare-Mongering and Trust Between Generations: There is No Crisis, Either Short-Term or Long-Term

FindLaw columnist, Cornell Visiting Scholar, George Washington law professor, and Economics PhD Neil Buchanan takes strong issue with media claims -- including claims made in a front-page New York Times article last week -- of a Social Security crisis. Buchanan contends that, contrary to suggestions that Baby Boomers will exhaust Social Security funds, today's younger workers will definitely be able to count on Social Security when they retire. He accordingly argues that the so-called Social Security "tipping point" is, in reality, a statistical blip.
Thursday, April 1, 2010

By SHERRY F. COLB

A Prisoner Seeks Vegan Food in Prison: Why Refusing Him is Both Illegal and Foolish

FindLaw columnist and Cornell law professor Sherry Colb argues that a prisoner who is seeking a vegan diet has a right to such a diet under the federal Religious Land Use and Institutionalized Persons Act (RLUIPA). She contends that the practice of veganism meets RLUIPA's requirements, as developed in federal courts' caselaw, when it is connected to a prisoner's practice of Buddhism or another religion, and perhaps also when it is simply a tenet of a prisoner's ethical veganism. In addition, she suggests that -- putting legal issues aside -- there is a compelling policy case for allowing prisoners to opt for vegan diets, particularly when such diets are part of a prisoner's larger renunciation of all types of violence against living beings. Wednesday, March 31, 2010

By JOANNA L. GROSSMAN

The End of the Battle Over Anna Nicole Smith's Late Husband's Estate: Why Her Young Daughter Likely Won't Receive Any of J. Howard Marshall's Money

FindLaw columnist and Hofstra law professor Joanna Grossman comments on the end of the fifteen-year course of litigation between famous Playboy and Guess model Anna Nicole Smith and her former stepson E. Pierce Marshall, and later between their estates. As Grossman explains, Smith was the wife of the late Texas oil billionaire J. Howard Marshall; Pierce was J. Howard's son. Grossman chronicles the legal decisions that were rendered in the fight between the two -- which went to the U.S. Supreme Court, and most recently resulted in a decision by the U.S. Court of Appeals for the Ninth Circuit. She explains why the Ninth Circuit decision is likely to be the last in this court saga,and why that decision means that Anna Nicole's young daughter, Dannielynn, is now extremely unlikely to receive any inheritance from J. Howard Marshall's massive estate. Tuesday, March 30, 2010

By JULIE HILDEN

The U.S. Court Of Appeals for the Third Circuit Issues an Encouraging Ruling in a First Amendment Case About Teen "Sexting"

FindLaw columnist, attorney, and author Julie Hilden comments on a recent decision by the U.S. Court of Appeals for the Third Circuit that concerns teens' practice of "sexting" -- sending each other sexy and sometimes nude or partially-nude photos of themselves via cellphone. In the case before the court, a Pennsylvania District Attorney had threatened teens that if they did not take a course taught by the D.A.'s office, then they would be prosecuted for their sexting under anti-child pornography laws. As Hilden explains, the facts of the case were disturbing in several ways -- for instance, all but one of the photos at issue including no nudity at all, and the D.A.'s course encouraged sexist stereotypes and forced students to write essays that they did not believe in. Hilden contends that the court made the right decision in affirming the validity of the First Amendment theories upon which the case proceeded. Monday, March 29, 2010

By VIKRAM DAVID AMAR

A Bill's Text, Its Whole Text and Nothing But Its Text? The Flap Over "Deem and Pass" in the Health Care Debate, and a Look at How a Bill Becomes a Law

FindLaw columnist and U.C., Davis law professor Vikram Amar comments on the merits of the constitutional issues that were raised by the controversy over the possibility of using the "Deem and Pass"/Slaughter Rule mechanism to pass the healthcare legislation. Amar expresses the hope that -- since the mechanism was not actually used-- the debate over its constitutionality can now continue in a calmer and less politically-charged context. Accordingly, he carefully notes and evaluates the arguments on both sides, including those from Stanford law professor Michael McConnell. Friday, March 26, 2010

By MARCI A. HAMILTON

Reflections, and an Update, on Justice Sandra Day O'Connor As She Approaches Five Years After Having Retired from the Court

FindLaw columnist and Cardozo law professor Marci Hamilton updates readers on the projects upon which Justice Sandra Day O'Connor -- for whom Hamilton clerked -- has embarked before and since O'Connor ended her tenure on the Supreme Court. Hamilton first describes O'Connor's efforts, while on the Court, to instill an ethic of judicial independence in Eastern Europe. She then goes on to chronicle O'Connor's current projects, which focus on urging states to appoint, not elect, their judges; and educating young Americans about the way our country's courts work. Thursday, March 25, 2010

By SONIA K. KATYAL & EDUARDO M. PEÑALVER

Introducing the Altlaw: The Shepard Fairey Obama "Hope" Poster Controversy

FindLaw guest columnists Sonia K. Katyal, a Fordham law professor, and Eduardo Peñalver, a Cornell law professor, comment on the recent legal controversy over artist Shepard Fairey's famous Obama "Hope" poster, which was based on a photograph. Katyal and Peñalver use the Fairey case as a window into the evolution of the doctrine of "fair use" -- which allows some uses of copyrighted material to be legally made, regardless of whether the copyright holder gives permission for the uses. They contend that rather than seeing those who invoke the "fair use" doctrine as outlaws, it is better that we see them as "altlaws" -- for their uses of copyrighted material have the beneficial social effect of developing the groundbreaking precedents that are necessary if both art and the law are to move forward. Wednesday, March 24, 2010

By MICHAEL C. DORF

What Weight Should Congressional Precedents Have in Constitutional Interpretation? Lessons of the "Slaughter Rule" Debate

FindLaw columnist and Cornell law professor Michael Dorf discusses the recently controversial "Slaughter Rule," which the Democrats considered using in order to get healthcare legislation passed. Dorf explains how the rule would have been applied: First, the House would have enacted a "self-executing rule" including a provision deeming the Senate bill to be passed upon the subsequent House passage of the reconciliation bill. Second, the House would have passed the reconciliation bill and -- as a result of the self-executing rule -- it would have been passing the original Senate bill as well. Though the debate over the Slaughter Rule is now moot, Dorf points out that a larger question that this debate raised is not: Should longstanding Congressional practice matter when it comes to judging constitutionality? Republicans contended the Slaughter Rule was unconstitutional; Democrats pointed out in response that it had been use since the 1930s. Wednesday, March 24, 2010

By MARCI A. HAMILTON

The Holy See's Promoter of Justice Grants an Interview About Clergy Sex Abuse: An Ally in the Church Is Found on Statutes of Limitations of Reform

FindLaw columnist and Cardozo law professor Marci Hamilton comments on a very interesting development in the continuing conflicts over legal accountability for clergy child sex abuse: The Holy See's Promoter of Justice, Monsignor Charles J. Scicluna, has voiced striking positions on the statute of limitations for such abuse. In particular, Msgr. Scicluna opined that in canon law, the statute of limitations would not be triggered until victims reached the age of 28 -- first reaching adulthood at 18, and then having 10 more years to file suit. Even more strikingly, Hamilton notes, Msgr. Scicluna added his view that there should be no statute of limitations at all on a crime this grave and that, indeed, Pope John Paul II had had the power to revoke the statute of limitations, and had done so. Hamilton calls for the Catholic Church in America to follow this precedent as well. Thursday, March 18, 2010

By JULIE HILDEN

The Supreme Court Rejects a First Amendment Challenge to a Federal Statute Limiting the Advice That Attorneys Can Give to Clients Contemplating Bankruptcy

FindLaw columnist, attorney, and author Julie Hilden criticizes the Supreme Court for a recent decision that she argues curtails attorneys' and clients' First Amendment rights. As Hilden explains, the statute at issue bars attorneys from advising clients who anticipate filing for bankruptcy that additional debts they incur in the near future can also be discharged in the bankruptcy proceeding. Hilden argues that the First Amendment forbids such an intrusion into attorney/client privilege -- especially in light of the fact that there are other remedies for "abusive" bankruptcy and questionable pre-bankruptcy debts (which need not be discharged if the bankruptcy judge so chooses). She also notes that, given the recession, many people in financial distress may still want to incur debt for business suits or travel, in order to try to get a job and stave off bankruptcy -- but this statute may prevent attorneys from letting them know they are free to do so. Wednesday, March 17, 2010

By SHERRY F. COLB

The Supreme Court Rules on How Clear Miranda Warnings Must Be

FindLaw columnist and Cornell law professor Sherry Colb discusses a recent Supreme Court decision concerning an unusually-worded set of Miranda warnings. The specific question before the Court was whether this set of warnings had adequately apprised the suspect of his right to have an attorney present during -- not just prior to -- interrogation. Colb contends that beneath this question, a more troubling question lurks: Do courts really want suspects to understand that they may have a lawyer with them during interrogation? Colb contends that, long before this case, the answer to this second question has been unclear, and provides evidence from the case law to support her point. Monday, March 15, 2010

By VIKRAM DAVID AMAR and KEVIN R. JOHNSON

Why U.S. News and World Report Should Include A Diversity Index in its Ranking of Law Schools

FindLaw columnist and U.C., Davis law professor Vikram Amar, and FindLaw guest columnist and U.C., Davis Dean and law professor Kevin Johnson contend that the influential US News and World Report law school rankings have a fatal flaw: The rankings fail to account for the extent to which law schools seek and exhibit diversity in their student bodies. Amar and Johnson note that U.S. News has indicated that it might be open to considering altering its rankings to address the diversity issue, and they argue that unless diversity is considered as a factor, schools may actually be punished by U.S. News for seeking diversity, if to do so lowers their mean or median LSATs and GPAs for entering students. Friday, March 12, 2010

By NEIL H. BUCHANAN

Is the IRS the Most Trustworthy Agency in the Country? Even Republicans Seem to Think So

FindLaw columnist, Cornell Visiting Scholar, George Washington law professor, and Economics PhD Neil Buchanan defends the Internal Revenue Service in the wake of a number of harsh recent criticisms of the agency. Buchanan argues that actions speak louder than words in this area -- for Republicans and Democrats alike show their trust in the IRS by repeatedly employing the tax system as a way to carry out government policy. Buchanan notes, for example, that President Obama and former President George W. Bush both have employed tax credits as a way of favoring their policy preferences. Buchanan points out, too, that if such policies were, instead, to be implemented using other methods, administrative headaches would doubtless still persist, no matter which method was chosen. Buchanan concludes that eliminating or seriously curtailing the reach of the IRS, as some have proposed, would only mean reinventing a very expensive wheel. Thursday, March 11, 2010

By ANITA RAMASASTRY

A Public School Allegedly Spies on Students By Using Webcams on Laptops: Is Such Surveillance Legal?

FindLaw columnist and U. Washington law professor Anita Ramasastry comments on a recent lawsuit that alleges that a public school that had distributed laptops with webcams to its students remotely activated one of those webcams in order to spy on a student when he was at home. The school claims that the webcams were only installed and used in order to track lost, misplaced, or stolen laptops, but the student -- who was rightfully in possession of his laptop -- claims that an administrator suggested otherwise, telling him that he'd been caught on webcam doing something improper while at home. Ramasastry raises the question of why the school didn't use GPS, rather than the webcams, to keep track of the computers; and she contends that, if its allegations prove true, the suit will raise a very serious Fourth Amendment issue. Tuesday, March 09, 2010

By MICHAEL C. DORF

Justice Scalia Suggests that the Legal Academy is Out of Touch: Is He Right?

During a recent Supreme Court oral argument, Justice Antonin Scalia humorously suggested that an attorney's argument might better qualify him for a place on a law school faculty, than help him prevail before the Court. But is the legal academy really so irrelevant to the Court's decisionmaking as Scalia implied? FindLaw columnist and Cornell law professor Michael Dorf argues that the answer is clearly "No." Dorf points to changes in tenure and hiring practices that have increased law professors' expertise in related subjects such as Economics and History, and notes that, even in the particular case where Scalia mocked the attorney, law professors' work still proved to be directly on point. Monday, March 08, 2010

By JOANNA L. GROSSMAN

Annulments Based on Fraud: What is the "Essence" of Marriage? Part Two in a Two-Part Series of Columns on Traditional and Modern Annulment

FindLaw columnist and Hofstra law professor Joanna Grossman continues her examination of the law as to when courts will grant to married couples an annulment, as opposed to a divorce. In this two-part series of columns, Grossman focuses, in particular, on a recent Colorado case in which a wife demanded an annulment based on her allegation that she had only re-married her ex-husband because he had falsely represented that he was dying. Here, in Part Two, Grossman contends that there has been a subtle shift in annulment doctrine in some jurisdictions away from a one-size-fits-all approach and toward a more individualized approach -- under which a court might ask whether a misrepresentation related to something that was fundamental to this particular marriage, rather than to marriage in general. Friday, March 05, 2010

By MARCI A. HAMILTON

Must a Public Law School Recognize a Christian Group That Bars Gay Persons From Being Officers or Prayer Leaders? The Supreme Court Will Decide

FindLaw columnist and Cardozo law professor Marci Hamilton comments on a case that the Supreme Court will resolve this Term. As Hamilton explains, the case raises the question whether a public law school must extend official recognition and funding to a student Christian group, even though that group excludes gay persons from being among its officers or prayer leaders. Hamilton argues that the law school is within its rights to decline to grant recognition or funding to the group, contending that the major relevant free-speech precedents cut against the group's claims. She also contends that the legal issues raised by the case mirror key political issues that are troubling the Republican Party. Thursday, March 04, 2010

By SHERRY F. COLB

Anti-Abortion Billboards Claim "Black Children Are An Endangered Species": A Meaningful Contention?

FindLaw columnist and Cornell law professor Sherry Colb discusses the controversial billboards that have recently appeared in majority-minority communities in Georgia. The billboards include a photo of an unhappy-looking African-American infant, and the legend "Black Children Are an Endangered Species." They also include the Internet address of a related website. Colb explains that, when read in conjunction with the text on the website, the billboards serve to protest the claimed disproportion between the number of African-American women who use abortion services, and the number of white women who do. The website and billboards also together suggest that adopting an anti-abortion stance is the answer. But should racial disparities in abortion -- if proven -- trigger the same kind of outrage and concern that, say, racial disparities in incarceration do? Colb offers a nuanced answer to this provocative question. Wednesday, March 03, 2010

By JOANNA L. GROSSMAN

Annulments Based on Fraud: What is the "Essence" of Marriage? Part One in a Two-Part Series of Columns on Traditional and Modern Annulment

FindLaw columnist and Hofstra law professor Joanna Grossman begins a two-part series of columns examining when courts will grant to married couples an annulment, as opposed to a divorce. In the series, Grossman pays particular attention to a recent Colorado case in which a wife demanded an annulment based on her allegation that she had only re-married her ex-husband because he had falsely represented that he was dying. Here, in Part One of the series, Grossman begins her explanation of the difference between the traditional and modern law and practice on annulment -- explaining how, traditionally, courts kept a tighter leash on such claims. Tuesday, March 02, 2010

By JULIE HILDEN

Should the Obscenity Standard for Internet Speech Be National, or Local?

FindLaw columnist, attorney, and author Julie Hilden discusses a recent criminal-law decision by the U.S. Court of Appeals for the Eleventh Circuit that raises the question whether Internet speech that is nationally and internationally available should still be vetted for possible obscenity by local juries applying local community standards. Hilden contends that the community standards of a local jury pool -- in a community that is typically hand-picked by prosecutors for its social conservatism -- should not be employed to determine whether Internet speech is obscene, and thus a crime. Tuesday, March 02, 2010

By STEVE SHEPPARD

How the Torture Lawyers Broke the Law, and Why They Must be Punished

FindLaw guest columnist and University of Arkansas law professor Steve Sheppard argues that Associate Deputy Attorney General David Margulis made a serious error in concluding that Bush Administration "torture memo" attorneys Jay Bybee and John Yoo should not be prosecuted. Sheppard contends that - - contrary to Margulis's conclusion -- it would have been very clear to Yoo and Bybee, at the time they wrote, that the governing law on torture was not as they portrayed it. Sheppard also argues that declining to prosecute Bybee and Yoo has serious policy consequences -- betraying the legacy of Nuremberg, allowing attorneys to raise the kinds of excuses that are denied even to police on the ground, putting U.S. soldiers at risk, and harming the U.S.'s status and cooperation with its allies. Monday, March 01, 2010

By VIKRAM DAVID AMAR and ALAN BROWNSTEIN

Can The President Expel Non-Disruptive People From A Public Event Based on Their Viewpoint? A Tenth Circuit Case Gets It Wrong

FindLaw columnist Vikram Amar and FindLaw guest columnist Alan Brownstein, both U.C., Davis law professors, take strong issue with a recent decision by the U.S. Court of Appeals for the Tenth Circuit. The court held that it was not clearly established as unconstitutional for two attendees at a speech by then-President George W. Bush to be expelled from the audience because White House Advance Office employees learned that the car they had driven to the speech bore a "No More Blood for Oil" bumper sticker. The exclusion was allegedly made pursuant to a policy of excluding those who disagreed with Bush's views from the audiences at his public appearances. Amar and Brownstein contend that it was clearly established that these actions, and this policy, violated the First Amendment. They also argue that if courts stop their analyses with the application of the clearly established test, and never reach the merits of the constitutional issue, then the ironic result might be that the underlying substantive law can never become clearly established. Friday, February 26, 2010

By NEIL H. BUCHANAN

The Austin Tragedy and the Dangerous Myth of the IRS Out of Control

FindLaw columnist, Cornell Visiting Scholar, George Washington law professor, and Economics PhD Neil Buchanan argues that it is unfortunate that the recent Austin, Texas plane attack on an Internal Revenue Service (IRS) building has spurred criticism against the IRS in some quarters. Buchanan notes that the facts show that the IRS -- despite its negative popular image -- is actually a model government agency. He also explains how Nixon-era funding cuts and later-debunked claims made in 1998 Senate Committee hearings led to longstanding misimpressions about the agency and its employees. Thursday, February 25, 2010

By MICHAEL C. DORF

Nullification, Secession, and Guns Show Constitutional Meaning is Never Settled

FindLaw columnist and Cornell law professor Michael Dorf offers a number of case studies that show that the meaning of our Constitution can change markedly over time. Dorf begins by considering the contention -- made by some in the Tea Party movement -- that the federal government cannot constitutionally impose a mandate on individuals to purchase health insurance. Dorf points out that two centuries of precedent support the constitutionality of such a mandate, but also notes that if constitutional interpretation on this point were to change drastically, it would not be the first time in history that this had happened. He then follows up with particular examples of marked changes, over American history, in constitutional interpretation. Wednesday, February 24, 2010

By JOANNA L. GROSSMAN & LAWRENCE M. FRIEDMAN

Elizabeth Edwards v. Andrew Young: Can He Be Held Liable for Contributing to the Failure of the Edwardses' Marriage?

FindLaw columnist and Hofstra law professor Joanna Grossman, and FindLaw guest columnist and Stanford law professor Lawrence Friedman, analyze the legal backdrop relating to reports that John Edwards's wife, Elizabeth, may be getting ready to sue his campaign aide Andrew Young for alienation of affections. Grossman and Friedman explain the history of claims for alienation of affections and related claims, and cover the relevant precedents regarding such claims in the Edwardses' home state, North Carolina, where the suit would be brought. They also note that a "criminal conversation" or "alienation of affections" suit might also be able to be brought by Elizabeth against John's former paramour and the mother of his child, Rielle Hunter -- and might actually be stronger than the suit against Young. Friday, February 19, 2010

MARCI A. HAMILTON

The Pieces of the Puzzle Are Falling into Place: Catholic Officials, a Global Web of Childhood Sexual Abuse, and the Judgment of History

FindLaw columnist and Cardozo law professor Marci Hamilton argues that ever since the Boston clergy child sex abuse scandal broke in 2002, an error has repeatedly been made: Instances of clergy child sex abuse, and related cover-ups, have been characterized as isolated and geographically-limited phenomena. Hamilton contends -- and adduces evidence to prove -- that, in reality, these instances together form a national and ultimately global pattern and problem, and should be treated as such. She points to the numerous victims who have come forward in disparate cities, here and abroad, as support for her conclusion, and praises the organization Voice of the Faithful for bringing Catholics together to acknowledge the realities of the clergy child sex abuse problem. But Hamilton also warns that the media have, in many ways, collaborated with Church attempts to convey that abuse was localized and has been fully addressed. Thursday, February 18, 2010

SHERRY F. COLB

Should Possession of Child Pornography Require Reparations to the Child?

FindLaw columnist and Cornell law professor Sherry Colb takes on a question that has sharply divided courts: Should a person who is found to have committed the crime of possessing child pornography be required to pay restitution to each child who appears in those images? The question has been posed very sharply recently, because images of one child victim -- whose pseudonym is "Amy" -- have been at issue in 350 criminal cases across the country. Moreover, the difference in the amount of restitution awarded in those cases is dramatic: Two Florida judges together awarded over three million dollars; a California judge awarded only $5000; and a Texas judge refused any award at all. Wednesday, February 17, 2010

VIKRAM DAVID AMAR

Constitutional Musings From California on the Filibuster

FindLaw columnist and U.C., Davis law professor Vikram Amar uses his observations of the dysfunctional California legislature to inform his comments on the similar problems Congress has faced recently. Amar focuses, in particular, on the way in which supermajority rules can paralyze a legislature; the possibility of reforming cloture rules; and the practical reasons why reform, although it is urgently needed, may not occur. Amar also discusses the factors that have cut against moderation both in California's legislature and in Congress. Friday, February 12, 2010

NEIL H. BUCHANAN

Our Grandchildren as Political Props: What Are Our Real Obligations to Future Generations?

We are told that giving benefits to older Americans today will only hurt our children and grandchildren in the future-- but is this claim, voiced by both the conservative David Brooks and the liberal Al Franken, really true? FindLaw columnist, Cornell Visiting Scholar, George Washington law professor, and Economics PhD Neil Buchanan says that the answer is a strong "No." Buchanan argues that even under the most pessimistic forecasts, future Americans will be far better off than Americans today, with future living standards more than doubling current standards of living, due to heightened productivity. Accordingly, he contends, the real problems facing future generations will concern their polluted environment, not their economic state. Thursday, February 11, 2010

MICHAEL C. DORF

Clarence Thomas, Sonia Sotomayor, and the Noble Lie

FindLaw columnist and Cornell law professor Michael Dorf discusses Justice Clarence Thomas's recent speech at the University of Florida law school, focusing in particular on Thomas's views on the Court's decisionmaking process and the types of criticisms of the Justices' approaches that may be accurate, versus those that are off-base. After examining Justice Thomas's perspective, Dorf puts forth his own view: that while the Justices' interpretive methodology surely matters, it is impossible to discount the key -- though sometimes subconscious -- role that their ideology also plays. Wednesday, February 10, 2010

ANITA RAMASASTRY

Verizon's Decision to Cancel Users' Internet Service for Illegal Downloading: A Better Option than RIAA Lawsuits?

FindLaw columnist and U. Washington law professor Anita Ramasastry discusses the new approach of the Recording Industry Association of America (RIAA) to the issue of illegal downloading: The RIAA is now partnering with Internet Service Providers (ISPs) such as Verizon to ensure that Internet users who ignore warnings about their illegal downloading will lose their Internet service. Ramasastry argues that this new system -- effectively a form of private copyright enforcement -- will likely be superior to the RIAA's prior approach of filing lawsuits. However, she contends that the new system needs guarantees of procedural fairness, and that ISPs like Verizon need to clearly convey the applicable rules and processes to their customers. Tuesday, February 9, 2010

RODGER CITRON

United States v. Comstock: Will the Supreme Court Uphold the Federal Government's Power to Commit Sex Offenders, or Invoke Principles of Federalism?

FindLaw guest columnist and Touro law professor Rodger Citron comments on the constitutional issues raised by a case that is currently before the U.S. Supreme Court, United States v. Comstock. As Citron explains, the case poses the question whether it is constitutional for the federal government to continue to confine a criminal offender who has served his full sentence, on the ground that the offender now needs to be civilly committed as "sexually dangerous." Here, the specific issue is not whether such civil commitment in general is constitutional, but whether the federal government can enter an area of law that has been traditionally reserved for the states. Focusing on the Justices' comments at oral argument and their general leanings, Citron predicts how they are likely to vote, and what the outcome is likely to be. Monday, February 8, 2010

MARCI A. HAMILTON

Children in Peril: From Haiti's Dubious Adoptions, to the Vatican's Continuing Cover-up

FindLaw columnist and Cardozo law professor Marci Hamilton counterposes two controversies -- the recent conflict involving the planned transport of Haitian children to the Dominican Republic by a religious organization involved with adoption; and the ongoing conflict over the extent of Catholic Church higher-ups' knowledge of, and action with respect to, clergy child sex abuse. Hamilton points out that it was Haiti's legal intervention that ensured that the children at issue would be reunited with their families if possible, and she calls for more aggressive legal action with respect to the Church -- particularly in light of recent evidence about the Vatican's role. Thursday, February 4, 2010

JOANNE MARINER

The Trial of Aafia Siddiqui

FindLaw columnist and human rights attorney Joanne Mariner comments on the ongoing, Manhattan-based federal court trial of Pakistani scientist Aafia Siddiqui, who is charged with the attempted murder, while in custody, of members of a group that included FBI agents. As Mariner explains, the trial is as interesting for what it has not covered, as for what it has: Unresolved questions still remain regarding whether Siddiqui may have spent months or years in a secret CIA and/or Afghan prison or was in hiding during that time; and regarding what has happened to her children -- two of whom are missing. Mariner notes that the U.S. government has taken the position that any secret-prison information is classified, while Siddiqui has refused to cooperate with her own legal team, and in outbursts, has claimed her children were tortured. Mariner contends that key questions such as these, that the trial has left unresolved, should be explored in another context or forum. Wednesday, February 3, 2010

SHERRY F. COLB

Can Violence Be Allowed When a Warning Is Prohibited? The Kansas High Court Issues a Perplexing Ruling

FindLaw columnist and Cornell law professor Sherry Colb analyzes a complex and, she argues, very troubling recent decision from the Kansas Supreme Court in a criminal case. In the case, the defendant admitted that he had threatened to break his sister's neck. But the defendant claimed that he had only made the threat because he was afraid, at the moment he spoke, that his sister was about to attack him. He therefore argued that he was entitled to have the trial court instruct the jury on self-defense -- a defense which, if proven, would have compelled an acquittal. Colb argues that the Kansas Supreme Court was wrong to hold that no such instruction was warranted -- and that its reasoning was deeply flawed, for it implied that the defendant could have invoked self-defense if he had actually harmed his sister, but not if he had taken the lesser step of threatening harm. Colb thus deems the ruling both counterintuitive and perverse. Wednesday, February 3, 2010

JULIE HILDEN

A Landlord/Tenant Defamation Case Highlights the Risks of Twitter

FindLaw columnist and attorney Julie Hilden analyzes a case in which a Chicago realty company sued a tenant for comments she had made about the company on Twitter. Hilden explains why the judge in the case may have erred in dismissing it, and notes that the case raised the issue of what types of comments satisfy the libel-law requirement that a "statement" must be made in order for a valid libel claim to be brought. She also contrasts the case with another high-profile recent case based on a tweet -- the suit by a well-known diet doctor against reality star Kim Kardashian. Finally, Hilden considers a possible tactic that the judge might have used to keep the case on the docket, yet also ensure that this "David vs. Goliath" fight was fought more fairly. Tuesday, February 2, 2010

JOANNA L. GROSSMAN

Common-Law Marriage: A Nineteenth-Century Relic with Continuing Relevance

FindLaw columnist and Hofstra law professor Joanna Grossman comments on a recent decision from the South Dakota Supreme Court regarding common-law marriage -- that is, marriage that occurs by agreement, not through the license and solemnization that traditional marriage requires. Grossman covers the facts of the South Dakota case -- in which a man died, and his daughters and a woman claiming to be his common-law wife clashed over his estate. She also explains the genesis of common-law marriage, surveys the state of common-law marriage today, and notes why this unusual relationship is still legally relevant today, despite the fact that most states do not allow it. Monday, February 1, 2010

VIKRAM DAVID AMAR

The Ongoing Proposition 8 Trial: Three Key Points About the Evidence and Arguments

FindLaw columnist and U.C., Davis law professor Vikram Amar comments on the ongoing trial regarding Proposition 8, California's voter-enacted ban on same-sex marriage. Amar makes three key points: (1) The evidentiary record in the litigation so far could support -- but won't compel -- a victory for the Prop. 8 challengers (assuming Supreme Court precedent permits such a victory in the first place); (2) Ultimately, whatever happens in the trial court, this will be appellate courts' call; and (3) This case may not ultimately be headed for the Supreme Court, if the U.S. Court of Appeals for the Ninth Circuit rejects the plaintiffs' challenges to Prop. 8. Friday, January 29, 2010

NEIL H. BUCHANAN

If We Must Obsess About Budget Deficits, Can We At Least Measure Them Correctly?

FindLaw columnist, Cornell Visiting Scholar, George Washington law professor, and Economics PhD Neil Buchanan contends that -- despite what many in the media have been claiming -- governmental budget deficits are not inherently bad. He urges, too, that given the reality that deficits are likely to be unfairly and categorically stigmatized, they should at least be measured correctly. Buchanan explains how the federal deficit is currently measured and why that measure can be misleading, and notes the importance of the interrelationship between state and federal budgets. He contends that the current politics of charge and counter-charge should be replaced by reasoned bipartisanship if we are truly to form a rational, constructive approach to the federal budget. And, most significant of all, Buchanan deems President Obama's new plan to cut spending to address deficits a "shockingly dangerous policy error" -- one recalling a colossal error that was made by FDR in the Great Depression. Thursday, January 28, 2010

ROBERT A. LEVY

Campaign Finance Reform: A Libertarian Primer

FindLaw guest columnist and Chairman of the Cato Institute, Robert Levy offers a libertarian reading of the Supreme Court’s recent Citizens United decision. Levy argues that the decision to loosen rules against corporations paying for campaign related speech was long overdue. Further, he contends that the best way to root corruption out of our political process and limit the influence of big money on government would be to reduce the powers of federal government. Thursday, January 28, 2010

ANITA RAMASASTRY

A Federal Court Dismisses a Suit Based on a Threat of Identity Theft and an Extortion Letter

FindLaw columnist and U. Washington law professor Anita Ramasastry discusses a recent judicial decision that denied standing to a would-be plaintiff whose data had been held by the company Express Scripts, which provides prescription-management services for employee benefit plans. After Express Scripts experienced a data breach, and received a letter from an anonymous person threatening to commit identity theft with employees' data, the plaintiff brought suit and sought class-action status. But, as Ramasastry explains, the court held that the would-be plaintiff did not fulfill the injury requirement of standing doctrine, in part because while 75 employees were named in the extorting letter, he was not among them. In addition to covering the case, Ramasastry also comments on the various approaches that are possible in fighting data breaches and identity theft. Wednesday, January 27, 2010

CARL TOBIAS

An Update on the Lingering Openings on the U.S. Court of Appeals for the Fourth Circuit

FindLaw guest columnist and U. Richmond law professor Carl Tobias updates readers on the details and background of the situation regarding the U.S. Court of Appeals for the Fourth Circuit, which has long had more than a quarter of its judgeships empty. Tobias comments on the nominees; notes that President Obama and the Senate are doing a better job on the process of filling these vacancies than they had been in the past; and gives specifics as to what more they need to do to truly restore the Fourth Circuit to its full strength. Tuesday, January 26, 2010

MICHAEL C. DORF

The Supreme Court Rejects a Limit on Corporate-Funded Campaign Speech

FindLaw columnist and Cornell law professor Michael Dorf analyzes the Supreme C0urt's recent -- and highly significant -- Citizens United decision, which invalidated a provision of federal law that had importantly limited corporations' ability to fund campaign speech. Dorf argues that the decision is especially notable for what it says about the Court's placid acceptance of the often disturbing ways in which money influences American politics. In addition to offering thorough commentary on the decision, Dorf also assesses its likely impact. He concludes that the decision probably should not be read to foreshadow the invalidation of all campaign-finance regulation, but predicts that it may be a significant step toward more permissive rules in this area. Monday, January 25, 2010

MARCI A. HAMILTON

The Election of Scott Brown, the Newfound Power of Independents, and Why the Framers Would Be Smiling

FindLaw columnist and Cardozo law professor Marci Hamilton argues that any surprise that Americans may be experiencing over the election of Scott Brown as a Massachusetts Senator is misplaced. She contends that just as the election of President Obama demonstrated the new power of independent voters in American politics, so too does the election of Brown. Hamilton contends that the Framers of our Constitution would be proud to see this shift in our politics, for she argues that President Obama has failed to live up to his promise of serving Americans' true needs, and instead has been captured by the allure of politics and power, and that his healthcare plan is a mistake. She concludes that Independents are thus justified in supporting a candidate like Brown. Thursday, January 21, 2010

SHERRY F. COLB

The Vermont Supreme Court Considers "Loss of Companionship" Damages for a Dog's Death

FindLaw columnist and Cornell law professor Sherry Colb comments on an interesting case that is before the Vermont Supreme Court. The case arose when a couple's dog wandered into a neighbor's yard, and the neighbor shot and killed the dog. The couple is now seeking damages from the neighbor for their emotional distress, and for the loss of their dog's companionship. Colb contends that the damages the couple are seeking should be available under the law, but she also warns that claims that this case could be the first step in ushering in a larger recognition of animal rights in America are seriously overstated. Rather than embracing animal rights, Colb suggests, a decision in favor of the couple who lost their dog would likely have a much narrower significance -- in that it would recognize that some people put special meaning and importance upon their pets, and would recognize the wrongness of the neighbor's criminal act. Wednesday, January 20, 2010

JOANNA L. GROSSMAN

Time to Revisit Baby M.? A New Jersey Court Refuses to Enforce a Surrogacy Agreement, Part Two

In Part Two in a two-part series of columns, FindLaw columnist and Hofstra law professor Joanna Grossman continues her discussion of a recent New Jersey trial court decision that recalls -- and was based upon the precedent of -- the famous Baby M. case. In the Baby M. case, a surrogate mother refused to relinquish her claim to a baby that she had carried, and for which she had provided the egg, and the New Jersey Supreme Court upheld her claim to be the baby's legal mother. In the new case, as Grossman explains, the surrogate was simply a gestational carrier, with no genetic relationship to the child -- yet the trial court still deemed the surrogate to be the child's legal mother. In this column, Grossman covers the arguments as to why the Baby M. precedent might -- and might not -- be thought to determine the result in the recent New Jersey case. Wednesday, January 20, 2010

JOANNA L. GROSSMAN

Time to Revisit Baby M?: A Trial Court Refuses to Enforce a Surrogacy Agreement, Part One

In Part One in a two-part series of columns, FindLaw columnist and Hofstra law professor Joanna Grossman discusses a recent New Jersey trial court decision that recalls -- and was based upon the precedent of -- the famous Baby M. case. In the Baby M. case, a surrogate mother refused to relinquish her claim to a baby that she had carried, and for which she had provided the egg, and the New Jersey Supreme Court upheld her claim to be the baby's legal mother. In the new case, as Grossman explains, the surrogate was simply a gestational carrier, with no genetic relationship to the child -- yet the trial court still deemed the surrogate to be the child's legal mother. In this column, Grossman covers the Baby M. precedent and the development of surrogacy law in America; in Part Two in the series, appearing tomorrow, she will discuss the recent New Jersey decision. Tuesday, January 19, 2010

VIKRAM DAVID AMAR AND ALAN BROWNSTEIN

Comparing U.S. and UK Courts' Approaches to Racial and Religious Preferences

FindLaw columnist Vikram Amar and FindLaw guest columnist Alan Brownstein, both U.C., Davis law professors, comment on a recent decision by the Supreme Court of the United Kingdom -- with a particular focus on how the UK Court's approach to alleged discrimination based on religion, race, and/or lineage compares to, and contrasts with, the US Supreme Court's approach to the issue. As Amar and Brownstein explain, the UK Court ruled that a Jewish school violated the UK's anti-race-discrimination statute when it extended a preference to children who are Jewish either by matrilineal descent, or as the result of a conversion satisfying the requirements of Orthodox Judaism. Friday, January 15, 2010

NEIL H. BUCHANAN

Taxing Wall Street Bonuses: An Imperfect But Necessary Measure

Should the federal government tax Wall Street financiers' bonuses -- including their 2009 bonuses, as well as bonuses they may receive in the future? FindLaw columnist, Cornell Visiting Scholar, George Washington law professor, and Economics PhD Neil Buchanan answers with a strong "Yes." Buchanan contends that the dramatic gap between America's have and have-nots calls for more progressive taxation generally, and argues that taxing Wall Street bonuses is a good start -- for a partial move toward a more progressive tax system is much better than no movement at all. He also argues that the government bailout provides strong additional justification for bonus-taxation proposals, and suggests that claimed fears of an exodus of talent from Wall Street if bonuses are taxed are not convincing. Thursday, January 14, 2010

MICHAEL C. DORF

How to Think About the Tiny Cancer Risk Posed by Airport Scanners

FindLaw columnist and Cornell law professor Michael Dorf comments on the question of how we should weigh the tiny risk of cancer caused by full-body airport scanners -- which have increasingly been demanded after the foiled Christmas Day terrorist bombing attempt on an airliner headed to Detroit -- against the scanners' potential preventive and deterrent effect. Citing specific cancer statistics, Dorf quantifies the radiation risk. Then, he considers the extent to which such scanners will truly prevent or deter terrorist attacks -- rather than, for example, displacing them so that they focus on targets other than airplanes. He also raises questions such as, Could the money that would be devoted to the scanners save more lives if spent elsewhere? And, should we take into account, as a benefit that the scanners provide, their ability to ensure that travelers experience less fear when they fly -- or, as a cost of the scanners' use, travelers' experiencing what the ACLU has deemed a "virtual strip search"? Wednesday, January 13, 2010

ANITA RAMASASTRY

A D.A. Puts Drunk Drivers on Twitter: Why The Policy Probably Won't Deter Future Offenders

FindLaw columnist and U. Washington law professor Anita Ramasastry discusses the potential effectiveness of a Texas District Attorney's decision to "tweet" the names of those arrested for drunk driving. Ramasastry notes that there is precedent for this practice, in the form of newspaper disclosures of the names of drunk-driving arrestees. But she questions how effective such a practice will be in convincing intoxicated persons - who, by definition, will not be thinking clearly -- that they should not drive, when the law's penalties alone have not already convinced them. Ramasastry also identifies a dark side of Twitter when it comes to drunk drivers: Teen drivers have been tweeting the locations of police drunk-driving checkpoints to each other. Tuesday, January 12, 2010

JOANNE MARINER

Unhappy Anniversary at Guantanamo

FindLaw columnist and human rights attorney Joanne Mariner comments on the eighth anniversary of the United States' 2002 decision to hold detainees at Guantanamo Bay, Cuba. She notes that the prison not only remains open, but still holds nearly 200 prisoners; only about ten, she explains, have been charged with a crime, although some detainees have been held by US forces since 2001. Mariner contends that this type of long-term indefinite detention without charge grievously harms America's reputation in the world, and should lead us to question America's commitment to its own constitutional values. Mariner faults the Obama Administration for breaking its early promise to close Guantanamo within a year, but argues that even worse is the Administration's plan to effectively move Guantanamo to a new Illinois facility, and thus, not to truly shut it down at all. The right course, she contends, is for the Administration to either try the prisoners in court, send them home, or resettle them, providing support and follow-up to ensure that they will not be susceptible to recruitment by militants. Monday, January 11, 2010

CARL TOBIAS

Why Filling the 100 Lower Federal Court Vacancies Is a Key Priority

FindLaw guest columnist and U. Richmond law professor Carl Tobias contends that now that lower federal court judgeship vacancies have hit 100 seats, it is urgent for President Obama and the Senate to nominate and confirm candidates, to ensure that the Third Branch moves much closer to its full complement of judges. Tobias details the situations of Obama's current slate of appellate and district court nominees; notes that Obama has sought nominees acceptable to Republican home-state senators, as well as Democratic ones; and urges that there is a pressing need for bipartisan effort to process and confirm the nominees soon. Friday, January 8, 2010

MARCI A. HAMILTON

The 2009 Holidays and the War Against Islamic Religious Zealots

FindLaw columnist and Cardozo law professor Marci Hamilton comments on the series of terrorist acts committed over the 2009-2010 holiday season -- including a planned attack on a Danish cartoonist who penned a controversial sketch of Muhammad with a turban drawn to resemble a bomb with a fuse, as well as the famous Christmas Day bombing attempt on a plane headed for Detroit. Hamilton argues that -- unlike the millions of peaceable Muslims the world over -- zealots like these attackers are the true enemy in the ongoing war. She contends, as well, that while the Obama Administration's term "war on Al Qaeda" is preferable to the Bush Administration's term "war on terror," the current conflict is really a war on Islamic religious zealots, whether they happen to belong to Al Qaeda or not. Thursday, January 7, 2010

SHERRY F.COLB

Abortion in Israel and the United States: A Lesson in Questioning Assumptions

FindLaw columnist and Cornell law professor Sherry Colb -- who recently taught a course on reproductive rights in Israel -- contrasts the ways in which Judaism and Christianity (Catholicism, in particular), and the U.S. and Israel, each conceptualize abortion. In particular, Colb focuses on beliefs as to when life begins, as to when (if ever) abortions are permissible, and as to the significance of the concept of "potential life." She notes that, in light of the existence of disagreement even among the devout regarding such issues, it is inaccurate to suggest that only secular persons take a less than absolutist view of abortion. Wednesday, January 6, 2010

JULIE HILDEN

Libel by Twitter? The Suit Against Kim Kardashian over the "Cookie Diet"

FindLaw columnist, attorney, and author Julie Hilden discusses the recent defamation lawsuit brought by COOKIE DIET® doctor Sanford Siegal and his company against reality-show celebrity Kim Kardashian, based on her calling the diet "unhealthy" on Twitter. Hilden considers whether Kardashian's comments would be categorized, under defamation law, as fact or opinion. She also notes that the necessary brevity of tweets -- that is, statements posted on Twitter -- means that it is difficult to invoke the powerful defense of "opinion based on disclosed fact" to defend a tweet that is alleged to be libelous. Monday, January 4, 2010

JULIE HILDEN

A Federal Appeals Court Wrongly Allows A Public High School to Ban Message T-Shirts

FindLaw columnist, attorney, and author Julie Hilden comments on a First Amendment decision from the U.S. Court of Appeals for the Fifth Circuit. The case concerns a public high school student who was banned from wearing a "John Edwards for President" T-shirt under the school's dress code. Hilden explains why the Fifth Circuit ruled against the student, and argues that the Supreme Court should grant review of the case, as the student has requested. In particular, she contends that the Court should make clear that, despite a recent decision upholding restrictions on student speech, students still have the right to speak peaceably in school on political topics. Wednesday, December 30, 2009

JOANNE MARINER

A First Look at the Military Commissions Act of 2009, Part Three

FindLaw columnist and human rights attorney Joanne Mariner continues her series of columns on the Military Commissions Act of 2009 ("2009 MCA"), which alters the rules set down for military commissions proceedings. In this column, Part Three in the series, Mariner begins by noting that Umar Farouk Abdulmutallab — accused of recently attempting to destroy a Northwest Airlines jet — will be tried in U.S. civilian federal court, not before a military commission. But she adds that there are still Guantanamo detainees who will face military commissions proceedings — and will thus be covered, instead, by the procedures set forth in the 2009 MCA. Continuing her coverage of the law's provisions, she explains how the 2009 MCA differs from its 2006 counterpart with respect to the Geneva Conventions. She also counters the commonly-made argument that suspects like Abdulmutallab do not "deserve" the level of justice typically meted out in the United States. Tuesday, December 29, 2009

ANITA RAMASASTRY

Should Courtroom Proceedings Be Covered Via Twitter? Why the Better Answer is "Yes"

FindLaw columnist and U. Washington law professor Anita Ramasastry discusses the controversy over the use of Twitter in the courtroom, which has divided judges. Ramasastry argues that the use of Twitter should be permitted, as there is little difference between the use of Twitter to convey reporters' and other court watchers' commentary immediately from the courtroom, and the use of Twitter to convey the same information during court breaks — a practice that is clearly permitted. One judge has paralleled the use of Twitter with the use of audio or video recording in the courtroom, and therefore banned it. But Ramasastry rejects the analogy, on the ground that directly conveying courtroom sounds or images is importantly different from conveying reporters' commentary on courtroom proceedings. Tuesday, December 29, 2009

MARCI A. HAMILTON

The Constitutional Fight Over Holiday Symbols, and the So-Called "War on Christmas"

FindLaw columnist and Cardozo law professor Marci Hamilton comments on the recent controversy in Luzerne County, Pennsylvania over the placement of a creche and menorah on the courthouse lawn over the holidays, which sparked protest from the ACLU and others. Hamilton argues that a proposed solution -- under which a private college in the area volunteered to host the creche and menorah over the holidays -- should have been adopted, as it would have mooted the constitutional issue here. She also notes that the Supreme Court has previously decided a series of creche cases, which underline why the Luzerne County display is problematic. Finally, she comments more generally on the contention that there is a "War on Christmas," responding in essence that the only real battle here is one to ensure religious diversity is respected. Thursday, December 24, 2009

JOANNA L. GROSSMAN

Can Unwed Fathers Block Adoptions? Navigating a Tricky Legal Terrain

FindLaw columnist and Hofstra law professor Joanna Grossman discusses the rights of unwed fathers. Grossman begins by focusing on a recent Nebraska Supreme Court case, holding that Nebraska's law on father's rights was unconstitutional as applied to a father who had never been formally granted rights, but who had maintained a longstanding familial relationship with the child. She then goes on to survey how the legal rights of unwed fathers have developed over time -- in part through a series of significant U.S. Supreme Court cases, beginning in the 1970s. Grossman argues that the Nebraska court made the right decision, contending that fathers who have shouldered their obligations to their children generally ought to also enjoy the benefits of their relationships with their children as well. Tuesday, December 22, 2009

VIKRAM DAVID AMAR

The Ninth Circuit Forbids Discovery of Proposition 8 Internal Strategy and Organization Documents

FindLaw columnist and U.C., Davis law professor Vikram Amar continues his series of columns providing coverage of the California federal court case relating to Proposition 8 -- California's controversial ban on same-sex marriage. In this column, Amar comments upon the December 11 ruling in the case by the U.S. Court of Appeals for the Ninth Circuit, holding that the drafters and organizers of Proposition 8 -- defendants in the case -- need not reveal, in the discovery process, their "internal campaign communications relating to campaign strategy and advertising." Amar agrees with the court's result, but argues that it should have reached that conclusion via a different path. Specifically, he suggests that internal pro-Proposition 8 campaign communications were not relevant to the constitutional question of whether the voters who approved Proposition 8 possessed unconstitutional discriminatory intent; instead, materials such as public advertisements bear on that question. Friday, December 18, 2009

NEIL H. BUCHANAN

Political Power in the Auto Industry: Why Did Congress Protect Car Dealers?

FindLaw columnist, Cornell Visiting Scholar, George Washington law professor, and Economics PhD Neil Buchanan comments on an unusual non-spending provision in the omnibus spending bill that the House just passed. The provision states that if General Motors and Chrysler want to stop doing business with any of their dealers, then the dealers may appeal that decision through arbitration. As Buchanan notes, the provision -- if it becomes law -- could prove very significant, as the two auto companies have announced plans to discontinue their business relationships with more than 2,000 dealerships across the country. Buchanan questions the wisdom of the provision, examines the roots of the dealerships' power, and notes other ways in which that power reveals itself -- such as the lack of any real alternative to the notoriously problematic dealership system. Thursday, December 17, 2009

JULIE HILDEN

The Federal Media Shield Bill, Anonymity, and the Definition of a Journalist

FindLaw columnist, attorney, and author Julie Hilden comments on the proposed federal "media shield" bill, now under consideration by the full Senate. Hilden supports the current bill, but argues that it would be a grave mistake to revive the three exceptions that were proposed but rejected in the Senate Judiciary Committee -- which would have restricted the reporter's privilege to employees of media outlets (thus excluding many bloggers), and would have excluded those who write anonymously from invoking the privilege. Wednesday, December 16, 2009

ANITA RAMASASTRY

Why Florida's Ban on Judges' "Friending" Lawyers on Facebook Is the Right Call

FindLaw columnist and U. Washington law professor Anita Ramasastry comments on a recent advisory ruling by the Florida Judicial Ethics Advisory Committee, holding that judges should not "friend" attorneys on Facebook and similar social networking sites -- and conversely, that lawyers should not "friend" judges on such sites. Ramasastry argues that the ruling was the right one -- noting that legal ethics rules are driven by concerns not only about the reality, but also about the appearance, of impropriety. She also explains why, while judges may run into ethics thickets if they "friend" lawyers, they may will not get in trouble if lawyers opt to become "fans" of their campaigns for judgeships on social networking sites, as long as they continue to follow proper recusal practices. Tuesday, December 15, 2009

CARL TOBIAS

Filling the Vacancies on the U.S. Court of Appeals for the Third Circuit

FindLaw guest columnist and U. Richmond law professor Carl Tobias argues that the Senate should move to confirm two strong nominees to the U.S. Court of Appeals for the Third Circuit: U.S. District Judges Joseph Greenaway and Thomas Vanaskie. Tobias explains why the vacancies have each lingered for more than three years, why he is confident that the two nominees are well-qualified, and what the cost of letting such appellate vacancies persist is likely to be. Tuesday, December 15, 2009

MICHAEL C. DORF

The Supreme Court Reviews a Conflict Between Equality and Freedom of Association

FindLaw columnist and Cornell law professor Michael Dorf discusses the difficult constitutional questions that arise when an organization claims that it needs to limit its membership, in order to be consistent about the message it seeks to send. In particular, in the Supreme Court case that Dorf covers, the branch of the Christian Legal Society (CLS) at the University of California, Hastings College of Law claims that its anti-gay tenets should allow it to exclude gays, yet still received funding from the law school, as other student groups do. Dorf explains the relevant Supreme Court precedents on the right to "expressive association" -- a First Amendment-based right that the Court has ruled does, under some circumstances, allow a group to exclude classes of persons from its membership in order to send its message. He also raises an interesting compromise solution to the dispute, but notes that the Court is unlikely to adopt the compromise. Monday, December 14, 2009

SHERRY F. COLB

Pro-Life Ideology Split in Two: Subtle Distinctions Expose Fundamental Divide

With the Stupak Amendment bringing the issue of abortion to the forefront of national politics, FindLaw columnist and Cornell law professor Sherry Colb discusses one point on which both pro-choice Americans and many pro-life Americans agree: Women who have abortions should not be prosecuted. Colb explains why many pro-life Americans believe that prosecutions should occur, but also that they should only target doctors, not women -- by invoking criminal law doctrines such as duress, self-defense, and excuse. She also parses the legal distinction between an action's being excused, and its being justified, to better explain the splits within the pro-life movement about whether abortion is tantamount to murder, and whether women who have abortions should be prosecuted. Wednesday, December 9, 2009

JOANNA L. GROSSMAN

Divorce Denied: "Social Abandonment" is Insufficient Grounds in New York

FindLaw columnist and Hofstra law professor Joanna Grossman covers a recent decision by a New York appeals court, denying a divorce to a wife who alleged that her husband refused to celebrate or acknowledge major holidays or birthdays with her; refused to eat meals together; refused to attend family functions or accompany her to movies, shopping, restaurants, and church services; once left her at a hospital emergency room; removed her belongings from the marital bedroom; and generally ignored her. Grossman explains why the court held that, under New York law, such "social abandonment" is not grounds for divorce. She also comments, more generally, on the way in which New York is an outlier state when it comes to divorce law. Tuesday, December 8, 2009

SONIA K. KATYAL

The Fight Over the Redskins Trademark and Other Racialized Symbols

FindLaw guest columnist and Fordham law professor Sonia Katyal comments on two recent rulings involving, respectively, the Washington Redskins name and logo, and the University of South Dakota's "Fighting Sioux" moniker. She puts these decisions in the larger context of the legal and ethical controversy over representations of Native Americans. Drawing from sources ranging from Sherman Alexie's novel "The Absolutely True Diary of a Part-Time Indian," to the testimony given by Native Americans in the Redskins litigation, to recent controversies over depictions of particular groups in popular culture, Katyal points out that Native American culture is a glaring exception to modern America's general, and rightful, sensitivity to the harm inflicted by racially-hostile representations. She also notes that the dispute over the Washington Redskins trademark is not over, with a new generation of Native American leaders pursuing a fresh case. Monday, December 7, 2009

JULIE HILDEN

A Court Dismisses A Claim That Craigslist Facilitates Prostitution

FindLaw columnist, attorney, and author Julie Hilden applauds a decision by a judge on the U.S. District Court for the Northern District of Illinois, dismissing a suit by a local sheriff against the free online classifieds service Craigslist. The sheriff's suit was based on the fact that solicitations for prostitution appeared in Craigslist's then-"erotic services" (now "adult services") section. Hilden explains the federal statutory immunity that formed the basis for the judge's decision, and the reasons why that immunity was created. She also cautions websites that it is possible that, while they cannot be held liable for users' message board content, they may possibly be able to be held liable based on the way they caption the sections that organize user postings. Monday, December 7, 2009

CARL TOBIAS

Professor Carl Tobias Responds to Senator Orrin Hatch on Judicial Nominations

FindLaw guest columnist and and U. Richmond law professor Carl Tobias responds to Senator Orrin Hatch on judicial nominations. Friday, December 4, 2009

VIKRAM DAVID AMAR and ALAN BROWNSTEIN

Is Monitoring Moslem Religious Services Without Particularized Suspicion Constitutional?

FindLaw columnist Vikram Amar and FindLaw guest columnist Alan Brownstein, both U.C., Davis, law professors, comment on the question whether the government can attend and monitor religious services in circumstances where the government has no clear evidence of the incitement of violence or of a conspiracy to engage in unlawful conduct. Amar and Brownstein note that, while the question is a general one, it has been especially relevant recently in light of communications between the accused perpetrator of the murders at Fort Hood and a radical imam. They consider relevant Supreme Court precedents, and reject the easy conclusion that there is no constitutional problem here simply because services are otherwise open to the public. Friday, December 4, 2009

NEIL H. BUCHANAN

The Real Damage From Investing Too Little in Higher Education: State Budget Cuts and Federal Responsibilities

FindLaw columnist, Cornell Visiting Scholar, George Washington law professor, and Economics PhD Neil Buchanan contends that the federal government should provide support for the states' higher education systems, which have faced massive funding cuts as a result of the recession. Buchanan describes the economic benefits of higher education, and warns that without federal support for state colleges and universities, America will become a permanently poorer country in the near future. He focuses, in particular, on the ominous current situation of California's famed public universities, and on the cautionary tale arising from the Thatcher government's cuts to British higher education in the 1980's, which took a ruinous toll. Thursday, December 3, 2009

MICHAEL C. DORF

A Supreme Court Ruling Means Prisoner Abuse Photos Stay Secret

FindLaw columnist and Cornell law professor Michael Dorf comments upon the Supreme Court's ruling -- issued Monday, November 30 -- regarding 21 photographs of abusive treatment of detainees in Afghanistan and Iraq. As Dorf explains, although technically the ruling simply tells the U.S. Court of Appeals for the Second Circuit to reconsider its decision to order the photographs' release, practically the decision is very likely to ensure that the photographs never see the light of day. Dorf contends that the Court's decision to effectively dispense with the Freedom of Information Act's requirement of national security classifications means that we will never know if the decision regarding these particular photos was the correct one, in that security concerns truly outweighed the public's right to know. Wednesday, December 2, 2009

JOANNE MARINER

A First Look at the Military Commissions Act of 2009, Part Two

FindLaw columnist and human rights attorney Joanne Mariner continues her multi-part series of columns on the Military Commissions Act of 2009 ("2009 MCA"), which alters the rules governing military commission proceedings. In this column, Part Two in the series, Mariner first focuses on the evidentiary rules that the 2009 MCA sets forth -- and in particular, on its answers to questions about whether statements that are involuntary and/or that are the product of cruel, inhumane or degrading treatment can be submitted as evidence in such proceedings. Next, she focuses on the ways in which the 2009 MCA has somewhat improved the resources available to the defense in such proceedings. Monday, November 30, 2009

CARL TOBIAS

Thanksgiving and the Third Branch

FindLaw guest columnist and U. Richmond law professor Carl Tobias takes advantage of the upcoming Thanksgiving holiday to assess some things for which the federal judiciary can be thankful for this year -- as well as to note a few areas in which there is room for improvement. Among the positive developments Tobias notes is a trend of bipartisan cooperation in the selection of judicial nominees. Tobias also lauds the signs of progress on comprehensive judgeships legislation, and on legislation to raise the compensation of federal judges, as Chief Justice John Roberts has suggested, in order to ensure the continued availability of excellent candidates. But he warns, too, that more bipartisan cooperation in the Senate regarding confirmation is needed. Wednesday, November 25, 2009

SHERRY F. COLB

Excluding Illegally-Obtained Evidence and the Doctrine of Double Effect

FindLaw columnist and Cornell law professor Sherry Colb offers an interesting and original perspective on the Fourth Amendment's prohibition on unreasonable searches and seizures and the "exclusionary rule." (The exclusionary rule forbids courts from admitting into evidence the fruit of an unconstitutional search, and has always been the subject of Supreme Court debate.) Colb contends that the Catholic Doctrine of Double Effect (DDE) can shed new light on the morality and logic behind the exclusionary rule. The DDE holds that the following two actions are morally distinct (1) intentionally and directly causing harm as a means of accomplishing a positive outcome, and (2) intentionally and directly bringing about the same positive outcome, while knowingly causing the same harm as an undesired side effect. Wednesday, November 25, 2009

JOANNA L. GROSSMAN

New York's Highest Court Upholds Benefits for Same-Sex Spouses in Narrow Ruling

FindLaw columnist and Hofstra law professor Joanna Grossman comments on a recent decision by the New York Court of Appeals, the state's highest court, regarding benefits for same-sex spouses. She contends that the decision, while correct in approving the benefits, was far too narrow. Grossman points out that it is a well-established rule that New York recognizes marriages that are validly celebrated in other states or countries. Accordingly, she argues that the court was wrong to rest its ruling on technicalities, and should instead have adopted the logic of the concurring opinion -- which would have simply stated the rule that New York recognizes same-sex marriages that were validly celebrated elsewhere, even if those marriages are disfavored by some, and applied that rule to same-sex marriages. Tuesday, November 24, 2009

JULIE HILDEN

A First Amendment Challenge to Animal Activists' Convictions: How Far Can Protesters Go? Part Two

FindLaw columnist, attorney, and author Julie Hilden continues her two-part series of columns on a criminal appeal from the U.S. Court of Appeals for the Third Circuit. The defendants -- animal rights activists from Stop Huntingdon Animal Cruelty (SHAC)'s New Jersey and Seattle branches, and SHAC itself -- were prosecuted for conspiracy under the Animal Enterprise Protection Act (AEPA). As Hilden explains, the appeal split the panel 2-1, with the dissenting judge expressing serious concern about the First Amendment and due process issues that the application of the AEPA raised. Here, in Part Two of the series, Hilden argues that the dissenting judge was correct, and the defendants' constitutional challenge was meritorious. Monday, November 23, 2009

VIKRAM DAVID AMAR and ALAN BROWNSTEIN

The Ninth Circuit Errs in Santa Cruz City Council Protester Case

FindLaw columnist Vikram Amar and FindLaw guest columnist Alan Brownstein, both U.C., Davis, law professors, contend that the U.S. Court of Appeals for the Ninth Circuit reached the wrong decision in a recent First Amendment case. In the case, the Santa Cruz, California City Council ejected an audience member, Robert Morse, for giving a silent, one-second Nazi salute. Apparently, Norse was protesting the Council's decision to cut off another audience member, whose time to speak had expired. Meanwhile, other persons were causing a disruption in the room. When Norse refused to leave, he was arrested. Did the ejection and arrest violate his First Amendment rights? The Ninth Circuit said no, but Amar and Brownstein raise several important problems with the opinion's constitutional analysis, and especially with its ruling that this case was properly dismissed prior to trial. Friday, November 20, 2009

NEIL H. BUCHANAN

Why the U.S. Government Must Invest in Infrastructure Now, Or Pay A Steep Cost

FindLaw columnist, Cornell Visiting Scholar, George Washington law professor, and Economics PhD Neil Buchanan argues that it is imperative for the U.S. to adopt policies that will improve its infrastructure, especially its transportation infrastructure -- in order to preserve the nation's competitiveness, while also making headway in reducing its current troubling levels of unemployment and underemployment. Drawing examples from his own recent travel, Buchanan points out that travel in many other countries compares favorably to travel in the U.S., on a number of different scales. He warns that these kinds of contrasts will affect where businesses locate, where tourists visit, and what the world thinks of America. Buchanan also contends that the past economic stimulus included too few infrastructure projects, and more should be initiated. Thursday, November 19, 2009

ANITA RAMASASTRY

The EU-US Safe Harbor Does Not Protect US Companies with Unsafe Privacy Practices

FindLaw columnist and U. Washington law professor Anita Ramasastry discusses the Federal Trade Commission (FTC)'s recent filing of complaints against seven US companies that the FTC alleged were not adhering to their promises regarding consumer privacy. Ramasastry explains the European Union’s Safe Harbor Program and how it affects US companies; details the FTC's allegations against the seven US companies; and describes the recent resolution of the complaints through consensual settlements. She also contrasts the current active enforcement of the Safe Harbor by the FTC with its marked lack of similar enforcement actions over the past nine years -- noting that we may be entering a new era with respect to the Safe Harbor. Tuesday, November 17, 2009

CARL TOBIAS

Elevating Judge David Hamilton to the Seventh Circuit

FindLaw guest columnist and U. Richmond law professor Carl Tobias argues that U.S. District Judge David Hamilton, nominated by President Obama to the U.S. Court of Appeals for the Seventh Circuit, should soon be confirmed by the Senate. Tobias explains why over ten percent of the seats on the federal appeals court remain open, describes the toll this situation may be taking on the courts, and argues that these seats should be filled expeditiously. He also notes that Hamilton is an especially strong nominee, as he enjoys the support of both Democratic and Republican Senators in his state, Indiana, and of the head of the conservative Federalist Society in Indianapolis. Tuesday, November 17, 2009

SEN. ORRIN G. HATCH

Senator Orrin Hatch Responds to Professor Carl Tobias on Judicial Nominations

Senator Orrin G. Hatch responds to FindLaw guest columnist Carl Tobais regarding the judicial nomination and confirmation process during the Obama and Bush administrations. Monday, November 16, 2009

MICHAEL C. DORF

Is There a Constitutional Right to Sign a Petition Anonymously?

FindLaw columnist and Cornell law professor Michael Dorf comments on a case from the U.S. Court of Appeals for the Ninth Circuit, which raises the question whether the Constitution protects the right to keep one's name secret from others when one signs a petition relating to a political issue. The case has already been to the Supreme Court once, and now, review is again being sought. As Dorf explains, the case arose with respect to signatures on petitions by those who support a referendum to repeal Washington's "everything but marriage" act. (As its nickname suggested, the act allows gay couples to gain all the rights incident to marriage, without using the term "marriage" itself.) Do these signatories have a right not to have their names and address revealed, even though Washington's Public Records Act says this information can be made available to the public? Dorf notes that, as a matter of constitutional law, the question is surprisingly difficult, and explains why. Monday, November 16, 2009

MARCI A. HAMILTON

Why the Stupak Amendment to the Healthcare Reform Bill Is Unconstitutional

FindLaw columnist and Cardozo law professor Marci Hamilton contends that the controversial Stupak Amendment, excluding abortion from the coverage of the federal healthcare reform bill's insurance plans, is not only bad policy but also unconstitutional. Hamilton begins by describing the status quo -- as established by the Hyde Amendment -- and how the Stupak Amendment would change it. She then argues that the Stupak Amendment violates the Establishment Clause, unconstitutionally discriminates against women, and violates substantive constitutional due process and privacy rights. Thursday, November 12, 2009

JULIE HILDEN

A First Amendment Challenge to Animal Activists' Convictions: How Far Can Protesters Go? Part One

In a two-part series of columns, FindLaw columnist, attorney, and author Julie Hilden covers a criminal appeal from the U.S. Court of Appeals for the Third Circuit. The defendants -- animal rights activists from Stop Huntingdon Animal Cruelty (SHAC)'s New Jersey and Seattle branches -- were prosecuted for conspiracy under the Animal Enterprise Protection Act. As Hilden explains, the appeal split the panel 2-1, with the dissenting judge expressing serious concern about the First Amendment and due process issues that the case raised. Here, in Part One of the series, Hilden describes the evidence against the defendants, the text of the statute, and the basis for the constitutional challenge. Wednesday, November 11, 2009

JOANNA L. GROSSMAN

Courts Divide Over the Constitutionality of Sex Toy Bans

FindLaw columnist and Hofstra law professor Joanna Grossman discusses a recent Alabama Supreme Court decision upholding the state's ban on the use of sex toys. Does such a ban violate the U.S. Constitution? That question has split the two federal appellate courts that have considered it. Grossman describes the Alabama law and its stated purpose, provides a brief history of similar laws in the U.S., and covers recent related precedents. In addition, she notes that it may be time for the U.S. Supreme Court to take up this issue -- in light of the ambiguity of the key Supreme Court precedent in this area of law, Lawrence v. Texas -- but wonders if the Court will be brave enough to do so. Tuesday, November 10, 2009

SHERRY F. COLB

Suit Challenges Federal Ban on Compensation for Bone Marrow Donor

FindLaw columnist and Cornell law professor Sherry Colb discusses a recent lawsuit that is challenging the federal ban on compensation for bone marrow donors. As she explains, there is a very strong policy argument for lifting the ban -- for it is estimated that about 1,000 patients per year in the U.S. are literally dying for lack of bone marrow donors, and compensation could incentivize more donors to come forward. But is there also a strong policy argument in favor of the ban? Colb examines ban supporters' fears about deception (which could occur if donors seeking money lie about their HIV risk); coercion (which could occur if a person feels that poverty gives her no choice but to donate, or if an unscrupulous third party forces her to donate and then takes the money); and commodification (which would occur if society were debased by the fact that a price tag had been put upon a bodily substance). Colb offers strong responses to each of these policy concerns, and then goes on to analyze whether the case that challenges the ban as unconstitutional can succeed on the merits, as a matter of constitutional law. Monday, November 9, 2009

VIKRAM DAVID AMAR

Should Summary Judgment Have Been Granted in the Federal Proposition 8 Suit? Part Two

FindLaw columnist and U.C., Davis, law professor Vikram Amar continues a two-part series of columns commenting on the suit brought in federal court to challenge California's anti-gay-marriage Proposition 8, on the ground that it violates the U.S. Constitution. In this column, Part Two, Amar continues his explanation of the defendants' contentions as to why the suit should have been dismissed; and explains why the judge's decision to proceed forward with the case was a plausible one -- despite the fact that a brief Supreme Court ruling, rejecting a similar argument for a right to gay marriage in Minnesota, might arguably control the issue. Amar explores whether this case may raise California-specific questions that justify a trial, and whether it may be advantageous for the federal district court to employ a trial to tee up certain issues for the U.S. Supreme Court. Friday, November 6, 2009

NEIL H. BUCHANAN

Should Federal Agencies or Courts Protect Consumers in Financial Markets?

FindLaw columnist, Cornell Visiting Scholar, George Washington law professor, and Economics PhD Neil Buchanan poses, and suggests an answer to, the following question: When a family’s house is at risk of foreclosure, or when credit debt threatens to push them into bankruptcy, should they be able to turn to an agency whose explicit role is to protect them, or should their only recourse be to fight for their future through the courts? Buchanan explains the limited role that courts can play -- by invoking equitable doctrines or, in one recent case, by discharging a mortgage in bankruptcy after the bank could not prove that it owned the mortgage. In light of this limited role, he contends that, in these areas, agency power should supplement the power of the courts. Thursday, November 5, 2009

JOANNE MARINER

A First Look at the Military Commissions Act of 2009, Part One

In the first in a two-part series of columns on the Military Commissions Act of 2009 ("2009 MCA"), FindLaw columnist and human rights attorney Joanne Mariner explains the ways in which the 2009 MCA alters -- and, she argues, somewhat improves upon -- the Bush Administration's 2006 MCA, and the ways in which it sticks with the Bush Administration model. In particular, Mariner looks at the new rules as to who can be brought before a military commission for trial; the way the law's treatment of the Taliban, in particular, has changed; and the change in the law's treatment of those found to provide purposeful and material support to terrorists. Mariner also takes issue with the law's failure to restrict itself to traditional definitions of armed conflict; its broad scope, encompassing even acts occurring long before 9/11; and its failure to exempt those who were under 18 when their offenses were allegedly committed from military commission proceedings. Mariner also argues that, while the law reaches too far in many areas, there is one area in which it does not reach far enough: It includes, but not American citizens, in a provision that embodies illegal discrimination and, Mariner argues, may explain why the law has not sparked much scrutiny or opposition. Wednesday, November 4, 2009

MICHAEL C. DORF

The Constitutionality of Health Insurance Reform, Part II: Congressional Power

In the second in a two-part series of columns rebutting common constitutional objections to health insurance reform, FindLaw columnist and Cornell law professor Michael Dorf takes on the objection that contends that the federal government lacks the authority under the Constitution to mandate individuals to purchase health insurance and to penalize those who do not comply. Dorf analyzes key Supreme Court Commerce Clause and taxing power precedents, and concludes that Congress does have the necessary power under the Constitution-- although he notes that, of course, Members of Congress are free to choose to vote against the mandate on the ground that they would prefer, as a policy matter, to leave health insurance decisions to states or to individuals themselves. Monday, November 2, 2009

CARL TOBIAS

With Obama Proceeding Reasonably To Fill Federal Judgeships, the Bottleneck Is the Senate

FindLaw guest columnist and U. Richmond law professor Carl Tobias surveys the facts relating to the many continuing federal judicial vacancies, and contends that much of the blame for these vacancies must be placed at the door of the Senate's GOP minority. Tobias notes that the nomination and confirmation process for Justice Sotomayor created unavoidable delay, and contends that since then, the Obama Administration has proceeded fairly -- by seeking and listening to the views of not only Democratic, but also Republican Senators from the states where judicial nominees would sit if confirmed -- while the Senate's GOP minority has held up confirmation proceedings. Thursday, October 29, 2009

MARCI A. HAMILTON

Why The Obama Administration Should Have Strongly Opposed the UN Religious Defamation Resolution

FindLaw columnist and Cardozo law professor Marci Hamilton argues that it was a mistake for the Obama Administration, through Secretary of State Hillary Clinton, to endorse a recent UN Resolution on the topic of religious defamation, and for Secretary Clinton to say, according to reportage, "that the United States was opposed to negative depictions of specific faiths." Hamilton contends that taking such a position is inconsistent with the U.S.'s obligation to speak out, and to allow its people the freedom to speak out, when religious groups/or and their members commit grievous wrongs, ranging from terrorism, to statutory rape, to clergy child abuse, to the murder of doctors who perform abortions. Hamilton contends that such groups and persons should not be held to be above criticism, any more than secular groups and persons should. Thursday, October 29, 2009

SHERRY F. COLB

Are "Hate Crimes" the Same Thing as "Thought Crimes"?: Opponents of the Federal Hate Crime Bill Invoke Free Speech

FindLaw columnist and Cornell law professor Sherry Colb takes strong issue with a commonly-heard objection to the proposed bill, which President Obama is expected to sign today, that would expand the scope of the federal hate crimes law to encompass hatred based upon gender, sexual orientation, gender identity, or disability. The objection contends that to ban a hate crime is to ban a "thought crime," when we all ought to have freedom of thought and speech. Colb responds that, to the contrary, to look to a perpetrator's motivation for committing a proven crime is a far cry from criminalizing thought or speech alone. She also covers the Supreme Court's two key hate crimes case, explicating the reasoning of the two and explaining why the Court accepts punishment enhancements based on motivation. Finally, she points out that conservative critics of the bill's emphasis on crimes' motivations are plainly comfortable with looking to motivation in other contexts -- such as in a suit alleging that an employer has committed so-called "reverse discrimination" against a white employee -- and thus, she suggests that their real discomfort must be with gay rights, not with the bill's focus on motivation. Wednesday, October 28, 2009

JULIE HILDEN

Does the Federal Anti-Animal-Cruelty-Depiction Statute Violate the First Amendment? Part Two

FindLaw columnist, attorney, and author Julie Hilden concludes a two-part series of columns on the pending Supreme Court case involving a First Amendment challenge to a federal statute that criminalizes depictions of illegal animal cruelty, such as occurs in "crush videos." In this column, Hilden explains why the statute's "serious value" exception could be seen as viewpoint discrimination. She also considers whether it might have been wiser for the statute’s drafters to draw from the law and precedent regarding the prohibition of child pornography -- rather than from the law and precedent regarding obscenity, which itself stands on shaky ground. Tuesday, October 27, 2009

JULIE HILDEN

Does the Federal Anti-Animal-Cruelty-Depiction Statute Violate the First Amendment? Part One

FindLaw columnist, attorney, and author Julie Hilden begins a two-part series on the case, recently heard by the Supreme Court, involving a First Amendment challenge to a federal statute that criminalizes depictions of illegal animal cruelty. In this column, Part One, Hilden describes the statute; explains how it borrows a "serious value" exception from Court-approved anti-obscenity statutes; and considers whether that exception would cover animal rights groups that seek to use depictions of the cruel, illegal treatment of animals in order to stop such practices. Part Two in the series, appearing tomorrow, will consider why the statute's language could be seen as constitutionally problematic, and whether it might have been wiser for the statute’s drafters to draw from the law and precedent regarding the prohibition of child pornography -- rather than from the law and precedent regarding obscenity. Monday, October 26, 2009

KRISTIN HENNING

The Case Against Juvenile Life Without Parole: Good Policy and Good Law

Kristin Henning, Co-Director of the Juvenile Justice Clinic and Professor of Law at Georgetown University, puts into context the cases of Joe Sullivan and Terrance Graham, in which the Supreme Court will soon decide the extent, if any, to which juvenile offenders may be sentenced to life in prison without the possibility of parole. Henning argues that banning such sentences for juveniles would be good law and policy because children's brains are still is a state of development allowing greater possibility of change than adults. Henning draws attention to the Supreme Court's 2005 decision in Roper v. Simmons, which outlawed death sentences for juvenile offenders in large part due to juveniles' changeability. Henning also points to international consensus (except in the US, up to now) against life sentences without the possibility of parole for juveniles, as well as the fact that only three US states appear to currently impose such sentences. Monday, October 26, 2009

VIKRAM DAVID AMAR

Should Summary Judgment Have Been Granted in the Federal Proposition 8 Suit? Part One

FindLaw columnist and U.C., Davis, law professor Vikram Amar begins a two-part series of columns commenting on the suit brought in federal court to challenge California's anti-gay-marriage Proposition 8 on the ground that it violates the U.S. Constitution. Here, in Part One, Amar explains why the judge presiding over the litigation rejected a summary judgment motion on behalf of the defendants, who are backers of Proposition 8. Amar argues that the judge was correct that a trial is warranted here. In addition, he analyzes the complex issues regarding what effect a prior Supreme Court ruling, Baker v. Nelson, will have upon this litigation -- and differs with the federal district judge in the Prop 8 suit on certain points regarding Baker's likely effect. Friday, October 23, 2009

NEIL H. BUCHANAN

The Proposed Consumer Financial Protection Agency: Enhancing, Not Restricting, Free Markets

FindLaw columnist, Cornell Visiting Scholar, George Washington law professor, and Economics PhD Neil Buchanan comments on a frequent objection to President Obama's proposed new agency, the CFPA. The CFPA's mission would be to change the regulatory rules regarding credit cards, mortgages, and other consumer financial transactions. The objection holds that a free market approach, with minimal or no regulation, is superior to regulations such as those the CFPA would provide. But Buchanan responds that this arena is already regulated in important ways-- and must inherently always be subject to regulation. Thus, the only real question here, he contends, is whether the regulations at issue will be pro-financial institution or pro-consumer -- and right now, he says, they are slanted much too far in the institutions' favor. Thursday, October 22, 2009

MICHAEL C. DORF

The Constitutionality of Health Insurance Reform, Part I: The Misguided Libertarian Objection

In the first in a two-part series of columns rebutting constitutional objections to health insurance reform, FindLaw columnist and Cornell law professor Michael Dorf takes on the objection that the "individual mandate" -- which would require Americans to either buy health insurance or face a financial penalty -- is unconstitutional. Dorf begins by explaining why, once insurers are barred from denying coverage based on pre-existing conditions, the individual mandate will be vital. He then focuses on a paper by libertarian Michael Cannon as a good statement of the objection to the individual mandate, and argues that Cannon's constitutional arguments do not ultimately hold water. In particular, Dorf cites a list of affirmative obligations placed by government upon individuals that have never raised, and should not raise, doubts about their constitutionality. Wednesday, October 21, 2009

JOANNA L. GROSSMAN

Are There Lessons About Sexual Harassment in the David Letterman Scandal?

FindLaw columnist and Hofstra law professor Joanna Grossman comments on the possible legal repercussions of the scandal over David Letterman's admission (prompted by an alleged extortion plot) that he has had sex with female employees who work, or worked in the past, on his show. Grossman cautions that we do not now know enough of the facts regarding the Letterman situation to determine for certain whether illegal sexual harassment occurred, but she describes possible scenarios that, under the law, could be troubling. She covers both the possibility of suits by women with whom Letterman had relationships, and suits by other employees (whether male or female) who may have felt they were denied the kind of favoritism that his paramours enjoyed. In addition, Grossman comments upon the statement that the National Organization for Women made in the wake of the Letterman scandal. Tuesday, October 20, 2009

JOANNE MARINER

Military Commissions, the Federal Courts, and the 9/11 Trial

FindLaw columnist and human rights attorney Joanne Mariner argues that it is imperative that the upcoming trial of the alleged planners of the 9/11 attacks take place in a federal civilian court, rather than before a military commission as currently planned. Reportedly, just such a transfer of the case is currently under consideration by the Obama Administration. Mariner contends that the advantages of the transfer would include (1) the federal courts' familiarity with terrorism cases and their superior track record of prosecuting them; (2) the courts' ability to provide both the appearance -- to the watching world -- and the reality of a fair and credible trial; (3) the message that trying the cases in federal civilian courts would send to the world, that terrorists are despicable criminals, not warriors; and (4) the fact that the courts' procedures are time-tested and constitutional, whereas the military commissions suffer from serious substantive and procedural flaws. Ultimately, Mariner urges, employing military commissions for this closely-watched trial would tarnish the proceedings in the eyes of the world; perpetuate the stigma of Guantanamo; and play into terrorists' hands. Monday, October 19, 2009

JOHN W. DEAN

What Kind Of Sentence Is Roman Polanski Facing?

FindLaw columnist and former counsel to the president John Dean explores a less-remarked aspect of the controversy over the fate of director Roman Polanski. Thus far, there has been much debate about whether Polanski should be extradited to the United States to be sentenced by a California judge for the crime of having sex with a minor -- a crime to which he pled guilty in 1977, but for which he was never sentenced, because he fled. But Dean asks a different question: If Polanski were to be extradited to California now, what sentence would he now face? Polanski's lawyers are suggesting that, had Polanski been sentenced in the '70s, he would have served less than a year. But Dean raises -- and, with the help of a sentencing expert, answers -- questions such as whether Polanski could get a higher sentence today, in light of the stricter sexual more of our times, and in light of his decision to flee. Friday, October 16, 2009

MARCI A. HAMILTON

Why Oprah Should Be Obama's Children's Czar – and the Priorities She Should Set

FindLaw columnist and Cardozo law professor Marci Hamilton argues that, given that there are so many "czar" positions in the federal government targeting a range of specific issues, it is anomalous and disturbing that there is no czar to focus on children's rights and issues. Hamilton outlines the ways in which children's issues have a national or federal dimension, focusing in particular on issues such as sex-trafficking, sex abuse, and children's healthcare -- including the need for healthcare for children of parents who believe in "faith healing." Hamilton suggests that Oprah Winfrey would be an ideal candidate for a Children's Czar position in light of her longstanding passion for the subject, her visibility, and her gift for effective communication. Thursday, October 15, 2009

CARL TOBIAS

Why Filling Lower Federal Court Vacancies Must Be A Top Priority

FindLaw guest columnist and U. Richmond law professor Carl Tobias explains why so many vacancies on the federal appellate and district courts still remain, and urges that these vacancies -- representing more than 10 percent of federal lower court judgeships -- must soon be filled. Tobias explains why the Bush Administration failed to fill the vacancies, and why the Obama Administration also has not yet done so. Tobias is optimistic about the Obama Administration's ability to move forward in filling the vacant judgeships, in light of its policy of prior consultation with home-state Senators, including GOP Senators, regarding candidates. He also explains why, while the Supreme Court gets the lion's share of press attention, both federal appellate and district courts play a tremendously important role in American justice, as their word is often effectively final -- so that the nation should focus closely on these seats, as well as those on the High Court. Thursday, October 15, 2009

ILYA SOMIN

Forfeiture Laws, the War of Drugs, and Alvarez v. Smith

FindLaw guest columnist and George Mason University law professor Ilya Somin argues that the Supreme Court should uphold Alvarez v. Smith, a Seventh Circuit decision holding that the Illinois Drug Asset Forfeiture Procedure Act (DAFPA) deprives property owners of their right to due process. DAFPA allows police to seize property such as cars for months on end without any procedure for owners to contest the seizure and without any requirement for authorities to show that seizure is necessary to prevent loss of evidence. He points out the threat such seizure laws pose to innocent people whose property gets caught up in the War on Drugs, and points with hope to a Second Circuit opinion written by Justice Sotomayor striking down a similar seizure law in New York. Wednesday, October 14, 2009

SHERRY F. COLB

The Supreme Court Considers a Miranda Rights Case

FindLaw columnist and Cornell law professor Sherry Colb discusses a case that the Supreme Court will decide this term regarding Miranda rights -- the list of rights, beginning with the right to remain silent, that must be read to criminal suspects who are in police custody. As Colb explains, the case before the Court raises the question whether the police can interrogate a suspect in custody who has received Miranda warnings but who, afterward, neither explicitly waives, nor explicitly invokes, his right to remain silent. Colb analyzes the issues in the case in the context of prior Court precedents; explains why Miranda warnings exist in the first place; and tentatively predicts that the Court will validate the police's continuing to ask questions as long as a suspect does not explicitly invoke his right to remain silent. Wednesday, October 14, 2009

JOANNA L. GROSSMAN & DEBORAH L. BRAKE

The Lilly Ledbetter Fair Pay Act of 2009: A Preliminary Report, Part Three

FindLaw columnist and Hofstra law professor Joanna Grossman and FindLaw guest columnist and U. Pittsburgh law professor Deborah Brake continue their three-part series on the Supreme Court's Ledbetter decision, regarding the statute of limitations for pay discrimination, and the federal statute that supersedes that decision. In this column, Part Three and the last in the series, Grossman and Brake focus on three questions: (1) What discriminatory practices are encompassed within the Act's reference to a "compensation decision or other practice"?; (2) Does the Act have any effect on statutes that it did not specifically amend, but that are interpreted with reference to Title VII law?; and (3) Does the Court's decision have continuing vitality with respect to Title VII cases that are not directly covered by the Act, but involve concerns similar to those that drove the passage of the Act. Tuesday, October 13, 2009

JULIE HILDEN

Why Dan Rather's Suit Against CBS Was Dismissed

FindLaw columnist, attorney, and author Julie Hilden analyzes the opinion from New York's Appellate Division (First Department) dismissing all of anchorman Dan Rather's claims against CBS. Rather had alleged that CBS broke its contract with him when it "warehoused" him -- declining to put him on the air for a period of fifteen months that began early in 2005, and followed the late 2004 scandal over the authenticity of what Rather and his producers had claimed to be Texas National Guard internal documents relating to George W. Bush's service with the Guard as a young man. Hilden explains some of the factors that caused the Appellate Division to side unanimously with CBS, and considers how New York's Court of Appeals -- the state's highest court -- may rule. Monday, October 12, 2009

VIKRAM DAVID AMAR

The Supreme Court Faces the Question of Who Can Sue to Challenge a Religious Display

FindLaw columnist and U.C., Davis, law professor Vikram Amar analyzes the issues raised by an important standing case that the Supreme Court will resolve this Term. The case poses the question whether a plaintiff can sue to challenge an alleged Establishment Clause violation -- in the form of a large cross on public land -- despite the fact that, as a Catholic, he does not object to the cross itself, but simply objects to one religion's symbol being displayed alone on government land without other religions having similar access. Another wrinkle in the case, as Amar explains, is that after the case began, the government transferred the public land at issue into private hands -- and now argues there is no remaining Establishment Clause issue. Friday, October 9, 2009

NEIL H. BUCHANAN

Financial Market Reform: Two Goals, No Frills

FindLaw columnist, Cornell Visiting Scholar, George Washington law professor, and Economics PhD Neil Buchanan considers two key regulatory goals -- keeping banks small enough that they stay out of the "Too Big to Fail" category, and keeping salaries and bonuses for financial executives and money managers in line with the ideal incentive structure. Regarding bank size, Buchanan points to Japan's example as a cautionary tale, and regarding incentivizing executives, Buchanan notes that research shows that executives may actually be more interested in how much they make relative to others, than in how much they make absolutely. In both areas, Buchanan advocates bright-line rules, rather than flexible standards, so that compliance (or lack of it) is crystal clear. Thursday, October 8, 2009

MICHAEL C. DORF

Does the Second Amendment Bind the States?

FindLaw columnist and Cornell law professor Michael Dorf discusses the complex, interesting law and precedent surrounding the issue of how, and to what extent, the rights enumerated in the Constitution's Bill of Rights apply -- or, in technical terms, are "incorporated" -- not just against the federal government, but also against the states. In particular, Dorf focuses on an upcoming Supreme Court case that raises the question whether the Second Amendment's right to bear arms applies against the states and their subdivisions. Since the Court recently struck down the District of Columbia's handgun ban on Second Amendment grounds, the Court's answer to the incorporation question in the Second Amendment context may affect the fate of state and local gun laws. Wednesday, October 7, 2009

JOANNE MARINER

Tortured Language

FindLaw columnist and human rights attorney Joanne Mariner contends that, despite Bush era euphemisms, many of the interrogation methods used during the Bush Administration should rightly, and simply, have been called "torture." Mariner also argues that, since legal experts have firmly and credibly categorized the methods used by the Bush Administration as torture -- with Attorney General Eric Holder stating in his confirmation, for instance, that waterboarding is torture -- the media should follow suit. Mariner suggests that referring to "harsh" or "coercive" interrogation tactics when what is really meant is torture, is not journalistic neutrality, but simply the kind of euphemistic language that George Orwell so memorably decried in "The Politics of Language." Mariner notes that waterboarding, in particular, has long been recognized as torture in the U.S. and elsewhere, and provides specific examples to illustrate her point. Accordingly, she argues that, when news organizations refrain from deeming practices such as waterboarding "torture," they are ignoring legal and historic realities. Tuesday, October 6, 2009

JOHN W. DEAN

The Harding Affair, Part Two: Evidence of Racism Rising

In Part Two of a two-part series on President Warren G. Harding's extramarital affair with Carrie Phillips and the letters it produced, FindLaw columnist and former counsel to the president John Dean presents the results of his question-and-answer session with attorney James D. Robenalt, the author of a book about the affair. Among the topics Dean discusses with Robenalt is the revival of old, racist insinuations that Harding's presidency was a failure because Harding was secretly African-American. Robenalt notes that such suggestions dramatically backfired when Harding was running for president, because the public did not take well to ugly slurs upon a candidate. Friday, October 2, 2009

MARCI A. HAMILTON

From Polanski to "Big Love": Hollywood's Twisted View of Child Sex Abuse

FindLaw columnist and Cardozo law professor Marci Hamilton argues that Hollywood's elite should be ashamed of its members' sympathy for director Roman Polanski, who fled the country years ago after pleading guilty to statutory rape based on his giving a thirteen-year-old girl quaaludes and alcohol, and then having sex with her. Hamilton parallels the Polanski case with the Catholic Church child sex abuse scandal, and argues that there is other evidence, too, that Hollywood is failing to take statutory rape as seriously as it should, such as the show "Big Love." She also points out that child predators are all too often charming and attractive; that is why they succeed. When power is added into the mix, she argues, children have no chance unless society affirms the seriousness of the crime. Thursday, October 1, 2009

SHERRY F. COLB

Does the Mere Existence of an Invalid Arrest Warrant Injure Its Target?

FindLaw columnist and Cornell law professor Sherry Colb discusses a fascinating Fourth Amendment case in which the U.S. Court of Appeals for the D.C. Circuit recently heard oral argument. The case poses the question whether a person has standing to bring a civil rights lawsuit in federal court whenever a baseless arrest warrant is issued against him or her. In this case, the government points to the facts that the plaintiff was never actually arrested; that the government has dismissed the warrant; and that the government has indicated it will never prosecute the plaintiff on the charge that had led to the warrant. However, the plaintiff argues that he continues to fear that he will be wrongfully arrested. In considering which side is right here, Colb examines both Fourth Amendment doctrine and the Constitution's "case or controversy" requirement for the exercise of federal jurisdiction. Wednesday, September 30, 2009

CARL TOBIAS

Congress and the Pending Comprehensive Judgeships Legislation

FindLaw guest columnist and U. Richmond law professor Carl Tobias argues strongly for the passage of the bill, pending in the Senate, that would create 63 new federal appellate and district court judgeships. With the last similar legislation having been passed in 1990 and the federal courts' dockets having become more and more crowded since then, Tobias contends that the pending legislation is urgently needed. He points out, for instance, that with civil cases typically taking a back seat to criminal ones, federal courts' civil dockets are becoming extremely slow, a phenomenon that takes a serious toll on the justice the courts dispense. But will the bill pass? Tobias cites some political factors that may come into play. Wednesday, September 30, 2009

JOANNA L. GROSSMAN & DEBORAH L. BRAKE

The Lilly Ledbetter Fair Pay Act of 2009: A Preliminary Report, Part Two

FindLaw columnist and Hofstra law professor Joanna Grossman and FindLaw guest columnist and U. Pittsburgh law professor Deborah Brake continue their three-part series on the Supreme Court's Ledbetter decision regarding the statute of limitations for pay discrimination, and the federal statute that supersedes that decision. In this column, Part Two in the series, Grossman and Brake examine some questions that the lower federal courts are confronting regarding the Act: How broadly should courts construe the Act’s coverage of employment decisions that discriminate in compensation? And, what constitutes a "discriminatory compensation decision or other practice" as defined in the Act? They focus in particular on a significant case from the U.S. Court of Appeals for the Third Circuit. Tuesday, September 29, 2009

JOANNA L. GROSSMAN & DEBORAH L. BRAKE

The Lilly Ledbetter Fair Pay Act of 2009: A Preliminary Report, Part One

FindLaw columnist and Hofstra law professor Joanna Grossman and FindLaw guest columnist and U. Pittsburgh law professor Deborah Brake embark upon the first column in their three-part series on the Supreme Court's Ledbetter decision regarding the statute of limitations for pay discrimination, and the federal statute that supersedes that decision. In this column, Grossman and Brake brief readers on both the Act and the decision that prompted it -- which, as Justice Ginsburg eloquently stated in dissent, held that “Any annual pay decision not contested immediately (within 180 days) ... becomes grandfathered, a fait accompli beyond the province of Title VII ever to repair." Monday, September 28, 2009

LAURA HODES

Schools' Suits Against Students Who Mock Them Online

FindLaw columnist and attorney Laura Hodes discusses three recent legal clashes between schools and students who criticized the schools and/or their teachers or other personnel on the students' blogs or Facebook pages. Hodes explains why, although the students' writing was done off-campus, the courts still applied the Supreme Court's First Amendment test regarding on-campus behavior. That test asks if school administrators possessed a reasonable fear that the writing at issue would cause substantial disruption at the school, and Hodes details how the test was applied by the courts. Friday, September 25, 2009

NEIL H. BUCHANAN

Stop Denigrating Government: There is No Economy Without It

FindLaw columnist, Cornell Visiting Scholar, George Washington law professor, and Economics PhD Neil Buchanan argues that recent claims that the government should stay out of markets -- such as the market for health insurance -- take an all-or-nothing stance that clashes with reality. Drawing in part upon the work of Professors Liam Murphy and Thomas Nagel, Buchanan suggests that the idea of property -- or markets -- without government to enforce related law is incoherent. Accordingly, he calls for reframing the debate to ask not whether government should intervene in the economy, but simply how it can do so in the most positive possible way. Thursday, September 24, 2009

MICHAEL C. DORF

Football and Federalism: A Case Centers on NFL Drug Testing

FindLaw columnist and Cornell law professor Michael Dorf covers a recent decision by a panel of the U.S. Court of Appeals for the Eighth Circuit that raises interesting questions of federalism. In the decision, the three-judge panel allowed Minnesota Vikings players Kevin Williams and Pat Williams to challenge the league’s drug-testing regime under Minnesota law, despite contrary provisions in the collective bargaining agreement between the league and the players' union. Dorf notes that the case is interesting because, had the decision come out the other way, it would have substantially undercut American federalism, by effectively forbidding states from applying their laws to protect or regulate NFL players. Wednesday, September 23, 2009

CARL TOBIAS

Filling the Three Openings on the U.S. Court of Appeals for the Second Circuit

FindLaw guest columnist and U. Richmond law professor Carl Tobias explains the situation with respect to vacancies on the U.S. Court of Appeals for the Second Circuit, and urges that these vacancies be filled soon, so that the court can function at its full capacity and ability. Tobias explains why the Second Circuit's importance is even greater in the current recession, and praises President Obama for adopting efficient practices -- such as consulting with a state's Senators and proposing consensus nominees -- that seem likely to allow even longstanding judicial vacancies to be filled. Wednesday, September 23, 2009

JULIE HILDEN

Should Lawyers Be Allowed to Blog Critically About Judges?

FindLaw columnist, attorney, and author Julie Hilden discusses a Florida case in which an attorney was reprimanded by the Florida Bar for blogging critically about a judge. As she explains, the Florida Supreme Court upheld the attorney's reprimand and fine -- despite arguments by the ACLU, an amicus in the case, that these punitive measures violated the First Amendment. Hilden contends that the ACLU was right, and that attorneys' criticisms of judges on blogs and elsewhere should be recognized as First Amendment-protected speech. Monday, September 21, 2009

DAVID RITTGERS

National Security Court: Reinventing the Wheel, Poorly

Cato Institute legal analyst and FindLaw guest columnist David Rittgers critiques the idea of a national security court – a hybrid civilian/military tribunal system to handle terrorism cases. Specifically, Rittgers reviews Glenn Sulmasy's book The National Security Court System: A Natural Evolution of Justice in an Age of Terror, which advances the idea of hybrid tribunals as a "third way" of handling terrorism cases, beyond traditional civil courts and military tribunals. Rittger's ultimately finds the idea of a national security court unpersuasive, arguing that the existing court system can evolve to handle terrorism cases, just as it evolved to handle cases against the Klu Klux Klan and cases against organized crime. Monday, September 21, 2009

JOHN W. DEAN

The Harding Affair: Evidence of Racism Rising

In Part One of a two-part series on President Warren G. Harding's extramarital affair with Carrie Phillips and the letters it produced, FindLaw columnist and former counsel to the president John Dean draws from the recent book by attorney James D. Robenault about the affair. Dean begins by discussing the Harding family's successful legal battle to quash a would-be biographer's bid at using the letters in service of the racist argument that Harding's presidency was a failure because Harding was secretly African-American -- an argument that, Dean notes, is still being made today. Dean praises Robenault's book for shedding light on interesting aspects of the Harding/Phillips relationship, including Phillips's status as a German sympathizer -- and perhaps even a German spy -- and her unsuccessful attempt to make Harding a sympathizer as well. Friday, September 18, 2009

MARCI A. HAMILTON

The NEA and Political Propaganda

FindLaw columnist and Cardozo law professor Marci Hamilton discusses the recent controversy over film producer Patrick Courrieche's charge that, during a recent phone call with representatives of the National Endowment for the Arts, he and other artists were encouraged to create works that will further the Obama Administration's policy priorities. Hamilton describes a similar charge, leveled against a Republican Administration in the past. She also covers the Supreme Court decision that rejected a facial challenge to NEA policies, but left open the way for possible as-applied challenges to NEA actions in the future. Ultimately, Hamilton contends, the best solution is to abolish the NEA entirely. Thursday, September 17, 2009

JULIE HILDEN

Why a New York Court Unmasked the Blogger Who Wrote Harshly About a Model

FindLaw columnist, attorney, and author Julie Hilden argues that a New York court was wrong to reveal the identity of the blogger who called model Liskula Cohen names such as "skank" and "ho." Hilden argues that New York should follow other states in adopting a more pro-First Amendment test for when bloggers' anonymity can be compromised, and that the names Cohen was called by the blogger do not fulfill the libel-law requirement of making a "statement of fact" about Cohen. Hilden also argues that Google -- the owner of Blogger.com -- should have taken a more active role in protecting the First Amendment rights of the blogger, rather than trying to fence-sit by raising only formal, not substantive, arguments in the case. Tuesday, September 15, 2009

SHERRY F. COLB

Cass Sunstein's Views About Organ Donation: When is a "Nudge" Illegitimate?

FindLaw columnist and Cornell law professor Sherry Colb argues that the Senate was right to confirm Cass Sunstein as the Administrator of OIRA (the Office of Information and Regulatory Affairs), an office within the Office of Management and Budget that oversees the federal government’s regulatory apparatus. Sunstein's critics had cited his view that when someone dies, the default rule -- if the deceased person did not express a preference -- should be that his or her organs are donated so that others may live. Colb makes the case for this particular default rule, while also examining the importance and meaning of default rules more generally. She also contends that Sunstein's position on which default rule is the correct one should not have posed an impediment to his confirmation, since the position was, at a minimum, reasonable, and punishing nominees for expressing reasonable views would impoverish public debate. Monday, September 14, 2009

CARL TOBIAS

Judge Andre Davis Should Be Elevated Now, and All the Fourth Circuit's Seats Filled Soon

FindLaw columnist and U. Richmond law professor Carl Tobias explains why a full third of the seats on the U.S. Court of Appeals for the Fourth Circuit are now vacant, and urges that President Obama should soon nominate, and the Senate soon confirm, judges for these seats. In particular, Tobias focuses upon the seat, open for a shocking nine years, to which U.S. District Judge Andre Davis has been nominated, and urges Davis's prompt confirmation. Monday, September 14, 2009

VIKRAM DAVID AMAR

Further Thoughts on "Getting to 60" and the Kennedy Vacancy

FindLaw columnist and U.C., Davis, law professor Vikram Amar offers additional commentary on the timely issue of how to fill vacated Senate seats -- such as the one in Massachusetts that has been left empty after the passing of Senator Edward Kennedy. In particular, Amar focuses on the possibility that the Massachusetts legislature will empower Governor Duval Patrick to make a temporary appointment to fill Kennedy’s seat, until a special seat-filling election is held in January, but also bar Patrick from appointing anyone who is planning to run in the special election. Amar explains why the proposal -- even if well-intentioned -- raises constitutional problems. Friday, September 11, 2009

NEIL H. BUCHANAN

Can Capitalists Learn to Love Socialized Medicine?

FindLaw columnist, Cornell Visiting Scholar, George Washington law professor, and Economics PhD Neil Buchanan offers an interesting response to those who object to the government's involvement in America's health care system. Buchanan's argument draws upon the study "Retirees at Risk: The Precarious Promise of Post-Employment Health Benefits," by Richard L. Kaplan, Jordan Zucker, & Nicholas J. Powers. Buchanan points out that when employers break promises -- due to bankruptcy or other reasons -- to take care of their employees by providing retirement health care benefits, the government must inevitably step in, rather than leaving workers to suffer. Buchanan suggests that government health care is, in this way, an ally to both workers and employers. He also notes that government health care could be even more of an ally to business, if coverage were to be broadened far beyond situations where employers breach their contracts to provide worker health care, to reach all workers. Thursday, September 10, 2009

MICHAEL C. DORF

Was the Deal Capping Drug Cost Savings Inappropriate?

FindLaw columnist and Cornell law professor Michael Dorf discusses the following deal, which recently was made by the Obama Administration: The Pharmaceutical Research and Manufacturers of America (PhRMA) has agreed that it will give $80 billion worth of discounts to patients over ten years, and spend $150 million for advertising in support of the President’s health care plan. In exchange, the White House has agreed that savings from drug discounts will be capped at the $80 billion; the government will not use its purchasing power to negotiate deeper price cuts. Dorf contends that there are problems with the deal -- but the involvement of industry is not among them. Instead, Dorf says, it is the free speech implications of the bill that should give us pause, for even if the deal does not technically violate the letter of the First Amendment, it does violate the Amendment's spirit. Wednesday, September 9, 2009

ANITA RAMASASTRY

Heartbreak over Heartland: Why Prosecution for Data Breaches Isn't Enough

FindLaw columnist and U. Washington law professor Anita Ramasastry discusses the lessons that can be drawn from the recent indictments, by the U.S. Department of Justice, of three hackers -- one named Alberto Gonzalez and the other two as yet unidentified -- in connection with what is reportedly the largest data breach that has occurred thus far in U.S. history. As Ramasastry explains, the breach compromised both credit and debit card data that was held by Heartland Payment Systems, Inc., based in Princeton, N.J.; 7-Eleven, Inc.; Hannaford Brothers Co., which operates grocery stores in Maine and Massachusetts; and two other, unidentified corporations. Ramasastry covers the state of laws and practices concerning data security, including the Payment Card Industry Data Security Standard (PCI DSS), and the pending lawsuits that have been filed in connection with this historic breach. She also suggests respects in which PCI DSS falls short, and ways in which Americans' data security can be better guaranteed. Friday, September 4, 2009

JOHN W. DEAN

Political Manipulation of the Threat Level: Is Ridge's Charge a Federal Crime?

FindLaw columnist and former counsel to the president John Dean discusses a revelation made in former Secretary of the Department of Homeland Security Tom Ridge's recent memoir, The Test of Our Times. Ridge claims, in the book, that shortly before the 2004 presidential election, then-Attorney General John Ashcroft, with the support of then-Secretary of Defense Donald Rumsfeld, urged that threat levels be raised, despite the lack of intelligence supporting that decision. As Dean describes, Ridge seems to be backing away from his claim now. Yet Dean notes that, based on Ridge's account, the claim should be able to be corroborated by four other people to whom Ridge wrote that he spoke at the time. Moreover, Dean contends -- citing case law and the relevant statute -- that Ridge's book's claim, if proven, could form the basis for a criminal conspiracy charge against Ashcroft and Rumsfeld. Friday, September 4, 2009

MARCI A. HAMILTON

Sen. Ted Kennedy's Legacy of Disdain for the Separation of Church and State

FindLaw columnist and Cardozo law professor Marci Hamilton contends that the late Senator Edward Kennedy had a habit of failing to pay heed to the Establishment Clause's separation of church and state -- and instead favoring religious institutions over secular ones. One example upon which Hamilton focuses involves the building of a large Mormon temple in a residential neighborhood in Belmont, Massachusetts, despite zoning limitations. Hamilton notes that Senator Orrin Hatch's eulogy for Kennedy indicates that Kennedy intervened to favor the temple -- and even may have done so while the case pitting the temple against its secular neighbors was before Massachusetts' highest court. Thursday, September 3, 2009

CARL TOBIAS

Diversifying California's Federal District Courts

FindLaw columnist and U. Richmond law professor Carl Tobias argues that the Senate ought to confirm three recently-nominated candidates for spots on California's U.S. District Courts: Los Angeles County Superior Court Judge Jacqueline Nguyen; attorney Dolly Gee; and United States Magistrate Judge Edward Chen. Tobias notes that all three are highly-qualified, and contends that the fact that they are also Asian-American means that their confirmation would add needed diversity to the federal bench. Tobias's statistics show that -- despite the recent, high-profile Supreme Court confirmation of Justice Sonia Sotomayor -- the federal courts, especially in California, are still a long way from reflecting the population they serve. In particular, despite the numerous gifted Asian-Americans practicing law in California, Tobias points out, Asian-Americans federal judges in the state remain exceedingly rare. Thursday, September 3, 2009

STEVE SHEPPARD

Cheney Is Wrong: There Is Precedent for the Torture Investigation

FindLaw guest columnist and University of Arkansas law professor Steve Sheppard offers a rebuttal to former Vice President Dick Cheney's claim that Attorney General Eric Holder's investigation and possible prosecution of Bush Administration agents for their interrogation practices will set a "terrible precedent." Sheppard cites several prior instances -- including Teapot Dome and Iran-Contra, which Cheney himself investigated -- in which administrations have previously investigated their predecessors. He also contends that one reason that such investigations are rare is that often, administrations have already investigated their own alleged misdeeds, obviating the need for their successors to do so. Wednesday, September 2, 2009

SHERRY F. COLB

What Vegans Can Learn from the Gay Rights Movement's Successes

FindLaw columnist and Cornell law professor Sherry Colb parallels some of the features of the vegan movement with those of the gay rights movement. In drawing the parallel, Colb notes that a vegan and a gay person each must make a choice as to how "out" he or she will choose to be, regarding his or her identity, and how avidly he or she will urge others to share the same views. Each also may face difficult family conflicts, and pressure to conform to majority lifestyles. Drawing upon the work of law professor and author Kenji Yoshino, Colb notes that a gay or vegan life may include many disparate instances in which one must decide whether to be "out," or to "cover" one's identity, in a particular context, and the answer one gives might not always be the same. Accordingly, she argues that vegans struggling with such questions have much to learn from the gay rights movement. Wednesday, September 2, 2009

JOANNA L. GROSSMAN & LINDA C. MCCLAIN

Unfinished Business: Sex Equality on the Global Agenda, Part Two of a Two-Part Series

In a two-part series of columns, FindLaw columnist and Hofstra law professor Joanna Grossman, and FindLaw guest columnist and Boston University law professor Linda McClain discuss the continuing impediments to women's equality, on both the domestic and international fronts. The series draws upon their recently-published essay collection, "Gender Equality: Dimensions of Women's Equal Citizenship." Here, in Part Two of the series, Grossman and McClain discuss how gender equality issues relate to, and play out in, international policy and politics. In particular, they discuss the different meanings of "citizenship" and how different kinds of citizenship are being denied to women across the globe; Hillary Clinton's "new gender agenda"; and the importance of women's international economic empowerment. Tuesday, September 1, 2009

JOANNA L. GROSSMAN & LINDA C. MCCLAIN

Unfinished Business: Difference, Leadership, and Women's Equal Citizenship, Part One of a Two-Part Series

In a two-part series of columns, FindLaw columnist and Hofstra law professor Joanna Grossman, and FindLaw guest columnist and Boston University law professor Linda McClain discuss the continuing impediments to women's equality, on both the domestic and international fronts. In the series, they draw on their recently-published essay collection, "Gender Equality: Dimensions of Women's Equal Citizenship." Here, in Part One of the series, Grossman and McClain consider the extent to which the Obama presidency has affected identity politics, and the relevance to gender issues of the Hillary Clinton and Sarah Palin candidacies. They also focus on the confirmation process of now-Justice Sonia Sotomayor as showing why gender (as well as ethnicity) still matters in politics, and they note the importance of the work of the new White House Council on Women and Girls. Monday, August 31, 2009

VIKRAM DAVID AMAR

How Should Senator Kennedy's Seat Be Filled? Constitutional Considerations

FindLaw columnist and U.C., Davis, law professor Vikram Amar discusses the constitutional issues raised by the question -- increasingly pressing in the wake of Senator Kennedy's passing -- of how Senate vacancies should be filled. Amar covers the current situation in Massachusetts, and then moves to the broader question of what option might be best for not only Massachusetts, but also all the other states, to address the contingency of an unexpected vacancy. Specifically, Amar considers the advantages and disadvantages of party-consistency statutes -- ensuring that the successor shares the same political party as his or her predecessor -- and a constitutional amendment ensuring that vacancies be filled by election, not appointment. Friday, August 28, 2009

NEIL H. BUCHANAN

Rationing Health Care: We Have Always Done It, We Do It Now, and We Always Will

FindLaw columnist, Cornell Visiting Scholar, George Washington law professor, and Economics PhD Neil Buchanan argues that charges that the Obama health care plan will "ration" care are both accurate and irrelevant to the debate. Buchanan explains how any health care system, like any system that allocates goods and services, must technically ration them. He also argues that the current system of private health insurance not only rations care, but rations it in irrational ways -- for instance, by making some options (such as getting care covered while traveling) so burdensome that insured persons simply eschew them, despite possible risks to their health. Buchanan urges that the debate must move toward a comparison of two systems of rationing -- the one we have now, and the one we might have under Obama's plan -- and away from the loaded and misleading use of the term. Thursday, August 27, 2009

MICHAEL C. DORF

Did the Supreme Court Recognize an Innocent Person's Right Not to Be Executed?

FindLaw columnist and Cornell law professor Michael Dorf comments on a recent, high-profile decision by the Supreme Court to direct that a hearing be held in the case of death row inmate Troy Davis, who has put forward strong evidence that he is innocent of the crime for which he was convicted and sentenced to death. Dorf clarifies the ins and outs of the Court's habeas corpus jurisdiction, which it exercised in this case; and details the split among the Justices regarding whether it is unconstitutional to execute someone for a crime he did not, in fact, commit but for which he was properly convicted and sentenced. Wednesday, August 26, 2009

JOANNE MARINER

What the Inspector General Found

FindLaw columnist and human rights attorney Joanne Mariner discusses the long-delayed release of the 2004 report of the CIA's Inspector General, describing Bush-era interrogation abuses, and the related news that Attorney General Eric Holder is appointing a federal prosecutor to look into such abuses. Mariner summarizes the significant new information in the report -- which was revealed thanks to ACLU litigation. She also points to the potentially high significance of the report's large blacked-out portions (constituting almost a third of its length), which include lengthy sections concerning waterboarding. Mariner argues that while appalling unauthorized interrogation techniques were used, it is important to keep in mind, too, that many appalling techniques were also fully authorized by interrogators' superiors and Bush Administration attorneys. She urges that Attorney General Holder should refrain from putting full responsibility on underlings while ignoring the wrongs of higher-ups who evidence suggests orchestrated abuse as a matter of policy. Tuesday, August 25, 2009

STEVE SHEPPARD

Sharon Keller, Troy Davis, and the Duty of a Death Case Judge

FindLaw guest columnist and University of Arkansas law professor Steve Sheppard comments on two high-profile death penalty cases and the lessons they teach. In the first case, Judge Sharon Keller -- the Presiding Judge of the Texas Court of Criminal Appeals -- allegedly refused death row inmate Michael Richard an extension of time for his motion to stay his execution, pending the outcome of a key Supreme Court case. Similar stays were granted throughout the United States and apparently, Keller's only reason for refusing Richard's motion was that it was after 5:00 p.m. and his attorneys had come to the courthouse too late in the day. In the second case, which came before the U.S. Supreme Court, the Justices directed that there be a hearing on evidence suggesting the possible innocence of death row inmate Troy Davis, despite a statute that purported to bar such evidence from being heard. Sheppard points to both cases as illustrations of why death penalty cases must turn on guilt or innocence, not legal technicalities. Monday, August 24, 2009

JOHN W. DEAN

Health Care Reform: A Time for Real Action

FindLaw columnist and former counsel to the president John Dean discusses why Republican opposition to President Obama's health care reform efforts has been effective, even despite being, he contends, wrong on the merits. Dean also contends that supporters of the President will be much more effective in continuing to use the Internet to make their case for reform, than by organizing a March on Washington centered on the health care issue, as has been proposed. Dean reviews a number of past marches on Washington and contends that they were either ineffective or very limited in their effectiveness. He adds, too, that the marches' past benefit, of bringing like-minded people together, is less crucial now, when the Internet can easily achieve that goal. Dean also contrasts President Clinton's tactic in seeking health care reform, by bypassing Congress, to President Obama's tactic of involving Congress in reform efforts, and the possible pitfalls of each approach. Dean argues that America urgently needs health care reform but also notes that, in the current situation, it is far from certain that reform efforts will succeed. Friday, August 21, 2009

MARCI A. HAMILTON

The Health Care Bill: Opposition May Be Rude, But It Is Hardly "Un-American"

FindLaw columnist and Cardozo law professor Marci Hamilton argues that there are very good reasons for Americans to carefully scrutinize the House health care bill, and that adamant protest that may drown out other voices is not "un-American," as Speaker Pelosi has deemed it. Hamilton contends that the sponsors of a bill that is over 1000 pages long should have expected vociferous and prolonged debate, and points out that they could have chosen a more modest measure. She also encourages Congress to disclose which interest groups are behind the bill's provisions, in order to better inform Americans of the motivations behind the bill. Thursday, August 20, 2009

SHERRY F. COLB

Supreme Court Considers Constitutionality of Juvenile Life Without Parole

FindLaw columnist and Cornell law professor Sherry Colb details and assesses the precedents and arguments that may inform the Supreme Court's deliberation as it considers, during its coming term, two important companion cases. The cases raise the question whether imposing sentences of life imprisonment without parole upon juvenile offenders violates the Eighth Amendment's prohibition on cruel and unusual punishment. Colb argues that, as a matter of policy, the case against sentencing juvenile offenders to life without parole is strong. However, after analyzing relevant Court precedents, she finds that they offer little support for an Eighth Amendment argument against sentencing juveniles to life without parole. Nevertheless, Colb expresses the hope that the Court will modify its doctrine in this case, and remove this harsh punishment as an option. Wednesday, August 19, 2009

JULIE HILDEN

The Denial of the Times's Request for Emperor's Club Wiretap Applications

FindLaw columnist, attorney, and author Julie Hilden argues that a three-judge panel of the U.S. Court of Appeals for the Second Circuit made the wrong decision earlier this month, when it found that The New York Times had no statutory, common law, or First Amendment right to access sealed wiretap applications in the notorious "Emperor's Club" prostitution ring case. Given that customers' identities were protected, the investigations' four targets had already pled guilty, and only their early pleas had kept the applications under seal in the first place, Hilden deems the government's case for denying the Times access a weak one. She also notes that this important issue may soon find its way to the Supreme Court, and contends that the Court, unlike the panel, should find a First Amendment right to access here. Tuesday, August 18, 2009

JULIE HILDEN

What Lawyers Can Learn from Screenwriters

FindLaw columnist, attorney and author Julie Hilden argues that some of the rules that screenwriters are advised to follow can also be of substantial use to attorneys. In particular, she focuses upon advice counseling screenwriters to stay with chronological order, avoid voiceovers, let viewers put two and two together, and thread a uniting theme through the story being told. Hilden contends that each of these precepts contains a truth that can assist attorneys, as well as screenwriters, in getting their messages across effectively to their intended audiences. Monday, August 17, 2009

VIKRAM DAVID AMAR

Legalizing Marijuana in California: Why It Won't Lessen the State's Tax Woes

FindLaw columnist and U.C., Davis, law professor Vikram Amar explains why one possible fix that has been suggested for California's embattled budget will likely be ineffective. Some in the state have argued that marijuana should be legalized and taxed, in order to generate revenue for California. But Amar points out that California proposals to this effect typically assume that Californians will be likely to report their marijuana purchases to state tax officials, despite the fact that serious federal consequences still may ensue, especially if the marijuana is not used medicinally. Amar examines this assumption, and suggests that it may well be faulty. Friday, August 14, 2009

NEIL H. BUCHANAN

Can the Public Option in Health Care Reform Be Saved? Should It Be? Part 2

In Part Two of a two-part series of columns, FindLaw guest columnist, Cornell Visiting Scholar, George Washington law professor, and Economics PhD Neil Buchanan continues his commentary on the ongoing debate over health care reform -- and in particular, the "public option." (If the "public option" proposal becomes law, then Americans will still have the choice among various private insurers, but will also have the choice to opt to get health insurance through a non-profit plan run by the government.) In Part One of this series, Buchanan focused upon the two key arguments in favor of the public option. In this column, Part Two, Buchanan contends that a public insurer would be unlikely to be able to keep its cost down, and that, even if it did so, it would still suffer bruising, misleading, yet likely successful attacks from critics. Buchanan concludes that the Congressional regulation of private health insurers may provide an approach superior to that of the public option. Friday, August 14, 2009

NEIL H. BUCHANAN

Can the Public Option in Health Care Reform Be Saved? Should It Be?

In Part One of a two-part series of columns, FindLaw guest columnist, Cornell Visiting Scholar, George Washington law professor, and Economics PhD Neil Buchanan weighs in on the ongoing debate over health care reform -- and in particular, the "public option." (If the "public option" proposal becomes law, then Americans will still have the choice among various private insurers, but will also have the choice to opt to get health insurance through a non-profit plan run by the government.) Buchanan suggests that the public option may have a fatal flaw, but it's not one of those critics tend to mention. The real problem with the public option, he argues, may be that politicians’ (perhaps deliberate) misunderstanding of the mechanics of public finance will cause them to unfairly attack the public option, and thus undermine public support for it. Thursday, August 13, 2009

MICHAEL C. DORF

Should the Supreme Court Alter Its Approach to Campaign Finance Regulation?

FindLaw columnist and Cornell law professor Michael Dorf analyzes the legal doctrines in play in Citizens United v. Federal Election Comm'n, a case in which the Supreme Court will hold a special oral argument on September 9. As Dorf explains, while the case directly concerns the question whether a feature-length film entitled "Hillary: The Movie" falls under campaign finance reform laws, it also is likely to raise key questions about First Amendment-based limitations upon campaign finance legislation. Indeed, as Dorf notes, the case may prove to be a forum for the Court to significantly change doctrine in this area -- but not necessarily in a way that would be optimal. Wednesday, August 12, 2009

ANITA RAMASASTRY

Why Courts Need to Ban Jurors' Electronic Communications Devices

FindLaw columnist and U. Washington law professor Anita Ramasastry takes a look around the country to see how different jurisdictions are dealing with the same problem: While jurors often legitimately need to contact their families and workplaces during the day, some are instead using their cellphones and other electronic devices to violate court prohibitions on discussing their cases before deliberations begin; discussing their cases with non-jurors; and learning about cases via Google or Wikipedia, rather than restricting themselves to the evidence admitted in court. Ramasastry considers various responses that courts have made to the problem -- which has been known to lead to costly and wasteful mistrials -- and she argues that banning electronic devices in the courthouse, while making phones available at breaks, may be the best solution. Tuesday, August 11, 2009

JOANNE MARINER

Letting Cheney off the Hook

FindLaw columnist and human rights attorney Joanne Mariner discusses Attorney General Eric Holder's reported decision to appoint a federal prosecutor to investigate Bush-era interrogation abuses. Mariner criticizes Holder for reportedly leaning toward limiting the investigation to CIA operatives and the employees of private contractors who worked with them, and looking only to whether interrogators went beyond what Bush Administration attorneys had authorized. Mariner argues that the proper focus of the investigation should be senior officials, not low-level personnel. In addition, while Mariner lauds President Obama for abolishing secret CIA prisons and banning torture, she contends that only by holding senior Bush Administration officials accountable, can America truly restore its moral authority. She also argues that, since the Bush Administration legal memos authorized crimes, it would be indefensible for Holder to limit the investigation only to conduct that went beyond the memos. Monday, August 10, 2009

JOHN W. DEAN

Looking for Great "Big History" Books

FindLaw columnist and former counsel to the president John Dean argues that there is a dearth of "big history" books being published, and that the situation should be remedied, because such books are of great importance. Dean defines a work of "big history" as one that examines human history using a wide framework, and cites as examples Jared Diamond's "Guns, Germs, and Steel: The Fate of Human Societies" and Fred Spier's "The Structure of Big History: From the Big Bang Until Today," as well as big-picture works by Isaac Asimov and Amy Chua. Dean also expresses interest -- based in part on the wish of his late, beloved friend Ron Silver -- in joining with historians to co-found a "big history" website if there is reader support for it. Friday, August 7, 2009

MARCI A. HAMILTON

The Healthcare Bill and Its Troubling "Religious Conscience" Exemption

FindLaw columnist and Cardozo law professor Marci Hamilton argues that while much of the House healthcare bill has been hotly debated, there is one provision within it that deserves far more scrutiny than it has gotten thus far. The provision, Hamilton explains, would allow a "religious conscience" exception for families that believe in faith-healing, rather than medical care -- meaning that these families could withhold care not just for their adults, but for their children as well. Hamilton argues that several aspects of the exemption are highly problematic: It is unconstitutionally restricted only to established religions, and it puts children in serious peril of dying from treatable conditions such as diabetes. Thursday, August 6, 2009

JULIE HILDEN

A Texas Case Asks Whether Bloggers Enjoy Journalists' Right to Early Appeals

FindLaw columnist, attorney, and author Julie Hilden discusses a recent Texas appellate case that held that an online journalist and defamation defendant could invoke a statute allowing journalists who raise free-speech-based claims and defenses to file interlocutory appeals if their summary judgments motions are denied. While Hilden argues that the appellate court's result was the right one, she takes strong issue with the court's test as to who counts as a journalist -- a test that, she contends, ignores Internet journalism realities and will disproportionately burden those breaking into journalism. She argues that instead, all defendants in cases involving free speech claims or defenses should be entitled to interlocutory appeals, in order to mitigate the constitutionally-disfavored "chilling effect" that occurs when speech triggers costly court proceedings. Wednesday, August 5, 2009

JOANNA L. GROSSMAN & EDWARD STEIN

The State of the Same-Sex Union: Part Three in a Three-Part Series

FindLaw columnist and Hofstra law professor Joanna Grossman and FindLaw guest columnist and Cardozo law professor Edward Stein conclude their three-part series on the current and future state of same-sex unions in America. In this final installment, Part Three, Grossman and Stein answer the following question: Will same-sex marriages that are validly celebrated in one state also be recognized in other states? As they explain, the answer is complicated, varying state by state, in part because the relevant law is unprecedented and quite recent -- with most states' laws on this point having been enacted primarily over the last ten years. Tuesday, August 4, 2009

SHERRY F. COLB

Lessons From an Animal Cruelty Case In the U.S. Supreme Court

FindLaw columnist and Cornell law professor Sherry Colb discusses an important First Amendment and animal cruelty case that the Supreme Court recently decided to review. The case involves the constitutionality of a statute through which Congress responded to the phenomenon of "crush" videos, in which a woman tortures and slowly kills animals to appeal to those with a sexual fetish for watching such abuse. However, as Colb notes, in the case the Court will review, Robert J. Stevens was convicted not of any crush-video offense, but of filming and distributing violent videos of pit-bull fights and pit-bull attacks. After the U.S. Court of Appeals for the Third Circuit struck down Stevens's conviction on First Amendment grounds, the Supreme Court opted to take the case. Colb covers the key First Amendment precedents that may influence the Court's ruling, drawing on cases from the context of child pornography to argue that the state has a legitimate interest in destroying the market for certain materials. She also contends that those who are horrified by crush videos, but who are not vegans, should look within to consider whether their practices of eating meat or animal products do not create a valid analogy between themselves and the repellent crush video makers. Monday, August 3, 2009

VIKRAM DAVID AMAR

Using the Gates Arrest as a Comprehensive "Teachable Moment"

FindLaw columnist and U.C., Davis, law professor Vikram Amar argues that in addition to raising important questions about racial equality, the now-famous arrest of Professor Henry Louis Gates also illustrates a key point about free speech and the First Amendment. If one assumes the facts set out in the arrest report to be true, Amar points out, arresting officer James Crowley soon realized that Gates was not, in fact, a burglar -- the concern that neighbors had expressed, and that had caused the police to arrive at the scene in the first place. Accordingly, Amar argues, Gates's eventual disorderly conduct arrest must have arisen from what Gates said to the officer after Gates was cleared of any wrongdoing -- but what Gates said then was protected by the First Amendment. Amar contends, too, that while the report claims Gates was yelling at Crowley before the arrest occurred, police officers should be held to a higher standard under which they do not response to angry words alone with handcuffs and an arrest. He notes, too, that the Supreme Court has clearly conveyed that an officer's being berated is not a valid basis for a disorderly conduct arrest. Friday, July 31, 2009

ROBERT A. LEVY

Sotomayor and the Second Amendment

FindLaw guest columnist and Chairman of the Cato Institute, Robert Levy, explains why Judge Sotomayor's jurisprudence on the right to bear arms is no reason to oppose her confirmation. Levy, who was co-counsel to the plaintiff in the District of Columbia case which recently established Second Amendment rights as individual rights, argues that while other aspects of Sotomayor's jurisprudence may deserve questions, the much discussed recent Second Circuit panel decision regarding the Second Amendment, in which Sotomayor joined, was a correct following of Second Circuit and Supreme Court precedent. Friday, July 31, 2009

NEIL H. BUCHANAN

Should Advocates of Single-Payer Health Insurance Oppose the Public Option?

FindLaw guest columnist, Cornell Visiting Scholar, George Washington law professor, and PhD economist Neil Buchanan explains some of the trade-offs involved in the healthcare reform proposals Congress is currently considering. Buchanan focuses especially on the "public option" proposal -- pursuant to which the federal government would create a public health insurance company to compete with private health insurance companies. As Buchanan explains, one theory behind the public option is that it will help keep private insurers' bills and practices in line, since patients who feel mistreated by private insurers could opt out into the public system. But Buchanan cautions that the public option also has a downside: It could incentivize private insurers to test the limits of Congress's proposed regulations aimed at preventing insurers from cherry-picking the healthiest patients and dropping those who become sick -- since patients who are barred at the start, or eventually dropped, could be relegated to the public option, allowing insurers to both save money and save face. Thursday, July 30, 2009

ANITA RAMASASTRY

FTC and Industry Agree: Consumers Need Clear Notice When Web Use Is Tracked

FindLaw columnist and U. Washington law professor Anita Ramasastry discusses recent developments regarding companies' tracking of their customers' online activity, in order to generate behavioral advertising. As she explains, the Federal Trade Commission has issued a report on this topic, and has reached a settlement with Sears Holdings Management Corporation through which the company promised to make clearer disclosure of any such tracking in the future and procure clearer customer consent. Ramasastry also details the set of principles on this issue that was adopted earlier this year by industry trade groups. Thursday, July 30, 2009

MARCI A. HAMILTON

The New York Catholic Conference's Aggressive Bid to Stop Reform of Child Sex Abuse Laws

FindLaw columnist and Cardozo law professor Marci Hamilton takes very strong issue with the tactics recently used by the New York Catholic Conference with respect to proposed legislation that would extend the criminal and civil statutes of limitations for child sex abuse by five years, and also create a one-year "window" during which previously time-barred claims could be brought to court. Hamilton details the hardball tactics that have been employed, including threats to close local parishes and schools, and arguments that suggest inaccurately that the current legislation would bankrupt the Church or that the bill is no longer live in the legislature. Wednesday, July 29, 2009

MICHAEL C. DORF

Should Congress Change the Standard for Dismissing a Federal Lawsuit?

In the wake of a recent Supreme Court decision that importantly changed federal pleading standards, FindLaw columnist and Cornell law professor Michael Dorf argues that Congress should seriously consider revising those standards to once again more closely track the "notice" pleading system set forth in the Federal Rules of Civil Procedure. Dorf details both how the Court's decision transformed pleading standards, and also what a statute that would effectively supersede the Court's decision might look like. He also contends that his own proposed statute -- available via a link to his blog -- would be preferable, in important ways, to the current proposal being circulated by Senator Specter in Congress. Wednesday, July 29, 2009

CHRISTOPHER L. EISGRUBER

Why Supreme Court Confirmation Hearings Matter Less Than You Think

FindLaw guest columnist and Princeton Provost and Public Affairs professor Christopher Eisgruber -- who is the author of a recent book on the Supreme Court appointments process -- considers what impact the recent Supreme Court confirmation hearings of Sonia Sotomayor will have upon future nominees for seats on the Court. Eisgruber explains why, in general, most nominees currently have no incentive to reveal their views during their hearings, and why senators generally do not need hearings to assess nominees' qualifications. He also contends that Supreme Court confirmation hearings tend to cause both senators and the nominee to pretend that the nominee's values are unimportant when, in fact, they play an important role. Finally, he predicts that future nominees whose candidacies are more divisive are likely to spark confirmations hearings very different from the ones we just witnessed this summer. Tuesday, July 28, 2009

JULIE HILDEN

The Case of Hal Turner: A Blog Post About Violence Tests the First Amendment

FindLaw columnist, attorney, and author Julie Hilden discusses the case of Hal Turner, a talk radio host who has been charged with death threats, attempted assault, and attempted murder. The charges are based on comments Turner made on his blog suggesting that three federal appellate judges who had rejected a Second Amendment right-to-bear-arms argument "deserve[d] to die," and providing the judges' addresses, their phone numbers, and the locations of their workplaces; Turner also wrote on his blog, in discussing the judges, "Obey the Constitution or die." Recently, on The Huffington Post, leading First Amendment attorney Martin Garbus suggested that Turner should be able to raise a First Amendment defense, in part because First Amendment doctrine requires incitement of "imminent" lawless action. Hilden compares and contrasts the case with the famous "Nuremberg Files" case, and questions the fit between the imminence doctrine and the Internet context. Monday, July 27, 2009

JOHN W. DEAN

Barack Obama Is A "Fox," Not a "Hedgehog," and Thus More Likely To Get It Right

FindLaw columnist and former counsel to the president John Dean applies a framework devised by Philip Tetlock, who studies political judgment, to President Obama. Dean concludes that in Tetlock's terms, Obama is a "fox," interested in diverse thoughts, ideas, and experiences, and not a "hedgehog," seeking a universal unifying principle under which to proceed. Dean argues that former President George W. Bush was clearly a "hedgehog" according to this framework, and offers thoughts regarding into which categories other past presidents might fall. Dean argues that Tetlock's framework, while of course not a complete analysis of personality, nonetheless has much to offer to those who are interested in the inner workings of the minds of the powerful and influential. Friday, July 24, 2009

VIKRAM DAVID AMAR

The Sotomayor Hearings: The Good, the Bad and the Ugly

FindLaw columnist and U.C., Davis, law professor Vikram Amar recaps some highlights of the Sotomayor Supreme Court confirmation hearings. Amar praises Sotomayor for her effectiveness in rebutting critics' claims by maintaining a cool demeanor and emphasizing context in her responses. However, he criticizes the Senate for continuing its tradition of allowing nominees, including Sotomayor, to evade questions about Court precedents. Amar argues that such precedents are a proper subject for inquiry, and suggests a follow-up question for Senators to use in the future when their questioning along these lines is thwarted. Finally, Amar suggests the hearings overall may have importantly misled the public by suggesting falsely that Justices (and judges) can truly restrict themselves to applying established law, and need never make new law themselves. Thursday, July 23, 2009

SHERRY F. COLB

Child Obesity as Child Neglect: Is the Standard American Diet Dangerous?

FindLaw columnist and Cornell law professor Sherry Colb comments on a controversial South Carolina case in which the state's Social Services Department accused a mother of neglecting her 14-year-old son because he was morbidly obese. Colb contends that the state's decision was clearly the wrong one, as this is not a case of an abusive or neglectful mother, but rather of an apparently loving mother without the resources or information she needs. Colb parallels the situation to one in which a hypothetical loving parent might have an anorexic child -- a situation which ought not to lead to neglect charges. Colb also raises the broader point of how this case fits into our country's obesity epidemic, citing the deeply unhealthful nature of the Standard American Diet, and ways the government could and should protect the health of children, ranging from better information about the link between nutrition and health, to improving the healthfulness of public schools' lunches. Wednesday, July 22, 2009

CARL TOBIAS

Questions and Answers In Supreme Court Confirmation Hearings

FindLaw guest columnist and U. Richmond law professor Carl Tobias discusses the issue of when it is permissible for a Supreme Court nominee to decline to answer certain questions posed by Senators. Tobias draws examples from both this summer's Sotomayor hearings, and the earlier Roberts and Alito hearings, to explain how the lines have been drawn, and to outline why Sotomayor shied away even from some questions asked by Democratic Senators such as Al Franken. Overall, Tobias concludes that Sotomayor toed much the same line as her recent predecessors regarding the questions she would and would not answer. Wednesday, July 22, 2009

JOANNA L. GROSSMAN & EDWARD STEIN

The State of the Same-Sex Union: Part Two in a Three-Part Series

FindLaw columnist and Hofstra law professor Joanna Grossman and FindLaw guest columnist and Cardozo law professor Edward Stein continue their series on the current and future state of same-sex unions in America. In this installment, Part Two, Grossman and Stein describe the sliding scale of rights regarding the formal recognition of same-sex relationships in various states -- including rights to marriage, civil unions, and domestic partnerships. They also describe how anti-same-sex-marriage states have put their prohibitions into law. Finally, they point to facts that suggest that while same-sex marriage may gain some modest legal support around the country in the near future, the current state of affairs nationwide will not soon change dramatically. Tuesday, July 21, 2009

JULIE HILDEN

Would a Law Requiring Consent to Link Violate the First Amendment?

FindLaw columnist, attorney, and author Julie Hilden discusses a proposal by Judge Richard Posner -- writing in his private capacity -- that would attempt to save the flagging journalism industry, and especially newspapers' websites. Posner suggests that the government should consider “[e]xpanding copyright law to bar online access to copyrighted materials without the copyright holder's consent, or to bar linking to or paraphrasing copyrighted materials without the copyright holder's consent….” But would the new federal statute required to accomplish that change be deemed to violate the First Amendment? Hilden explains the reasons why it might, or might not -- and contends that Posner's argument is much stronger with respect to linking than it is with respect to paraphrase. Monday, July 20, 2009

LAURA HODES

The Salinger Copyright Case: Reading the Colting Book Shows It Is "Fair Use"

FindLaw guest columnist, attorney, and writer Laura Hodes comments on U.S. District Judge Deborah Batts's recent decision to grant a preliminary injunction against the U.S publication of a novel by Swedish author Fredrik Colting, a.k.a. "J.D. California," that has already been published in Britain. Hodes, who read the book after ordering it from Amazon UK, argues that Judge Batts erred in her analysis of whether Colting's book's use of copyrighted material from J.D. Salinger's novel "Catcher in the Rye" constituted "fair use" or simply copyright infringement. Hodes cites postmodern literary theory in support of her argument that Batts underestimated the extent to which Colting's book did significantly more than simply steal Salinger's character Holden Caulfield and some of the plot of "Catcher." She also argues that Judge Batts put too much weight upon publishing and marketing hype, as opposed to the text of the book itself, in the fair use analysis. Monday, July 20, 2009

BEN BRATMAN

A Defense of Sotomayor's "Wise Latina" Remark – with No Rewording Required

FindLaw guest columnist and U. Pittsburgh legal writing professor Ben Bratman draws on discrimination law to argue that Supreme Court nominee Sonia Sotomayor's famous "wise Latina" remark can be defended on its own terms. Some Sotomayor supporters have deemed the comment's phrasing a poor choice of words, and Sotomayor herself, during the hearings, called it a "rhetorical flourish" that "was bad." But Bratman argues that well-established discrimination law principles undergirded Sotomayor's comment -- for the case law has directed judges to put themselves in plaintiffs' positions; those positions include race and gender; and it may well be the case that a judge is better able to imagine being in a plaintiff's position if he or she shares the same gender and/or race as the plaintiff. Friday, July 17, 2009

NEIL H. BUCHANAN

Everyone Seems to Agree That Budget Deficits are Harmful. Can They All Be Wrong?

FindLaw guest columnist, George Washington law professor, Cornell Visiting Scholar, and Economics PhD Neil Buchanan argues that budget deficits -- the specter of which is often used by politicians to scare Americans -- can actually be healthy for an economy, especially one that is mired in a recession like ours. Buchanan contends, accordingly, that President Obama should be not put on the political defensive on the ground that his stimulus package contributes to deficit spending. Paralleling deficits with medicine and then with vitamins, Buchanan encourages readers to see their positive side, and notes that while deficit spending run the risk of being tainted by logrolling and pork, it also can be a boon to all if done correctly. Thursday, July 16, 2009

LOUIS KLAREVAS & CHRISTINE BUCKLEY

Human Trafficking and the Child Protection Compact Act of 2009

FindLaw guest columnists Louis Klarevas, a professor at NYU's Center for Global Affairs, and Christine Buckley, an author and human rights advocate, describe the grave, continuing problem of human trafficking -- including the sex trafficking of an estimated 1.8 million children. They urge that it is imperative not only that Congress approve the pending Child Protection Compact Act (CPCA), but also that it provide the funds that are vitally necessary to enforce it. Klarevas and Buckley praise the CPCA for including seven important initiatives, but they also point out that fulfilling each one of those initiatives will itself require virtually all of the funding currently allocated by Congress; to fund all seven, they urge, much more funding is necessary. Wednesday, July 15, 2009

MICHAEL C. DORF

Judge Sotomayor Proves Insufficiently Activist for Some Republican Senators

FindLaw columnist and Cornell law professor Michael Dorf comments on the ongoing confirmation hearings of Obama Supreme Court nominee Sonia Sotomayor, previously a judge on the U.S. Court of Appeals for the Second Circuit. Dorf notes that Sotomayor's answers, thus far, have shown her to be a very strong believer in precedent. As a result, Dorf notes, the hearings have ironically caused Republican Senators to ask why Sotomayor is unwilling to disregard precedent on conservative issues such as applying the Second Amendment to the states, and claims of "reverse" discrimination against white employees. Dorf concludes that Sotomayor's Republican questioners have scored few points -- for attacks on her speeches will be dwarfed by the weight of the numerous judicial decisions she has authored or joined, and attacks on her judicial philosophy have only revealed her tendency to hew to precedent. Wednesday, July 15, 2009

JOANNE MARINER

The CIA's Bad Apples

FindLaw columnist and human rights attorney Joanne Mariner comments upon Newsweek's recent report that Attorney General Holder is considering appointing a prosecutor to look into Bush Administration interrogation abuses. Mariner argues that Holder should make the appointment, which she says would send the strongest possible message to the world that the U.S. does not employ, endorse, or condone torture. However, she also expresses concern about the reported scope of the potential prosecutorial task, which is said to be limited to investigating only interrogation tactics that went beyond those authorized by lawyers. Mariner contends that opting for such a narrow scope would validate the erroneous legal opinions of attorneys who were simply Bush Administration ideologues providing easy rubber-stamps; and would mischaracterize the facts, styling Bush Administration torture as the work of a few rogues, not the officially-validated policy it actually was. Tuesday, July 14, 2009

JOHN W. DEAN

Defaming The Dead: Congressman Peter King's Michael Jackson Media Rant

FindLaw columnist and former counsel to the president John Dean takes strong issue with New York Republican Congressman Peter King's decision, in the wake of Michael Jackson's death, to call Jackson a "child molester" and a "pedophile" despite his acquittal in a criminal trial. Dean points out that, were Jackson still alive, King's comments might well run afoul of defamation laws. He also recalls that in the 1980s, the New York Assembly seriously considered a law that would create a remedy for defaming the dead, and suggests that influential Jackson supporters such as Reverend Al Sharpton might do well to re-introduce such legislation in New York in the wake of Jackson's death and the ensuing attacks upon Jackson's character. Friday, July 10, 2009

MARCI A. HAMILTON

The Two P's of Gender Inequality: Prostitution and Polygamy – How the Laws Against Both Are Underenforced to Protect Men and Subjugate Women

FindLaw columnist and Cardozo law professor Marci Hamilton comments on the scandal over news reports that Villanova's Law School Dean, Mark Sargent, was allegedly a customer at a brothel raided by the police. Sargent has since resigned, but Hamilton argues that this is not enough: He and other high-profile men such as Eliot Spitzer, she contends, should also face criminal charges for being "johns." Hamilton parallels prosecutors' reluctance to go after johns with its reluctance to go after the adult men who, by being involved in polygamous marriage, commit statutory rape. Both types of resistance, she contends, are symptoms of lingering, deep-rooted gender inequality. Thursday, July 9, 2009

STEVE SHEPPARD

Supreme Court Finds No Right to Post-Conviction DNA Tests

FindLaw guest columnist and University of Arkansas law professor Steve Sheppard discusses an important end-of-Term Supreme Court decision in which a majority of the Court held that a man convicted of rape had no right, under the Constitution's Due Process clause, to have a test done, at his own expense, on the DNA in the evidence that was used against him at trial. Sheppard argues that the majority -- in an opinion written by Chief Justice John Roberts -- perpetrated a grave injustice here. In particular, Sheppard contends that some of the points Roberts made -- for instance, that DNA testing is available in most jurisdictions anyway, and that the states or Congress may well create rights to access DNA -- are irrelevant to the constitutional issue. If due process means anything, Sheppard argues, it must mean access to evidence that could prove that one is innocent of the crime of which one has been convicted. Wednesday, July 8, 2009

JOANNA L. GROSSMAN & EDWARD STEIN

The State of the Same-Sex Union: Part One in a Three-Part Series

FindLaw columnist and Hofstra law professor Joanna Grossman and FindLaw guest columnist and Cardozo law professor Edward Stein explain the early history of attempts to establish a right to same-sex marriage, in the first of a three-part series of columns constituting a "state of the nation" report on the legal history of the fight for same-sex marriage rights. As Grossman and Stein explain, attempts to establish a right to same-sex marriage began in America as early as the 1970's, but were rebuffed. However, additional lawsuits in the late 1980's and early 1990's advanced the movement, with some rights of same-sex partners being recognized. Grossman and Stein detail the rights movement's early victories and defeats -- ending this Part in their series with a discussion of the important Supreme Court decisions relating to same-sex marriage by Hawaii, Massachusetts, and Vermont. Tuesday, July 7, 2009

VIKRAM DAVID AMAR

Common Sense Wins in Redding, the School Strip-Search Case

FindLaw columnist and U.C., Davis, law professor Vikram Amar argues that the Supreme Court was right to rule as it did in the controversial case about a public school's decision to perform a search upon a middle-school student suspected of having prescription strength ibuprofen, in light of the fact that the search exposed part of her breasts and pelvic area. Amar places the ruling in the context of a chain of Supreme Court precedents regarding public-school students' Fourth Amendment rights, and lauds the Court for drawing a line showing that students do retain some rights in this area of constitutional law. He also takes to task lower court judges who he argues deferred too much to the school, and thereby abdicated their duty to review the constitutionality of the school's policies. Monday, July 6, 2009

SHERRY F. COLB

The Right of Confrontation: A Supreme Court Decision Reveals Strong Schisms

FindLaw columnist and Cornell law professor Sherry Colb discusses a recent Supreme Court decision regarding the meaning of the Constitution's Confrontation Clause, which gives criminal defendants the right to be confronted with the witnesses against them. As Colb explains, the Court recently split on the question whether the government, when submitting forensic test results (such as the results of a test as to whether a substance is cocaine), must provide the analyst who performed the test to be questioned by the defense. In addition to analyzing that decision, Colb also traces the Court's troubled Confrontation Clause history. Thursday, July 2, 2009

ANITA RAMASASTRY

CLEAR Shuts Down, but the Future of Frequent Flier Data is Still Cloudy

FindLaw columnist and U. Washington law professor Anita Ramasastry discusses the privacy implications of the shutdown of CLEAR, the private company that had worked with the Transportation Security Administration to create quicker airport security lines for trusted business travelers. Ramasastry describes the type of information that CLEAR required that its customers submit, and explains what may happen to that information now. In particular, she focuses on the possibilities that the information may be used by other companies performing the same services CLEAR offered or by the TSA, and that the information might be in asset in the possible bankruptcy proceedings of CLEAR or its parent company. Thursday, July 2, 2009

MICHAEL C. DORF

The Supreme Court Decides the New Haven Firefighter Case

FindLaw columnist and Cornell law professor Michael Dorf discusses the controversial recent Supreme Court decision that arose from a New Haven fire department's decision not to use certain test results for promotions when it discovered that the results would not lead to a single African-American firefighter's promotion. Dorf covers three interesting questions raised by the decision: In light of the fact that the Court announced a new standard, why didn't it remand for lower federal courts to apply that standard? Can Congress, if it chooses, overturn the Court's result? And, how might the decision affect the confirmation hearings of Supreme Court nominee Sonia Sotomayor, who was one of three federal appellate judges who joined the decision that the Court overturned? Wednesday, July 1, 2009

JOANNE MARINER

Obama's New Euphemism

FindLaw columnist and human rights attorney Joanne Mariner argues that President Obama's recent reference to "prolonged detention" in a speech, combined with a news report of a new executive order in the works that would authorize indefinite detention, is very troubling. Mariner sets out four strong arguments as to why authorizing indefinite detention without charge -- a practice that she notes would clash with U.S. history and constitutional tradition -- would be a serious mistake for the Administration. Indeed, she contends it would recreate one of Guantanamo's most troubling practices, thus creating an equivalent to Guantanamo despite the closure of the facility itself. Tuesday, June 30, 2009

STEVE SHEPPARD

Supreme Court Bans Judge Buying

FindLaw guest columnist and U. Arkansas law professor Steve Sheppard comments on a recent, closely-split Supreme Court decision regarding the appearance, and perhaps also the reality, of judicial bias. The bias question arose when a coal company made a $3 million contribution to the campaign of a West Virginia judicial candidate; the candidate was then elected to the state's supreme court, where he soon voted to overturn a $50 million jury verdict against the company. In light of such a clear appearance of bias, Sheppard asks, why did the Court split 5-4? Sheppard notes the dissenters' concern with outside review of judges' recusal decisions, but argues -- like the majority -- that Due Process requires such review in extreme cases like this one, and that the common-law method of judging will create standards for when such review is proper. Monday, June 29, 2009

JOHN W. DEAN

Why Didn't Governor Sanford Suppress His E-Love-Letters?

FindLaw columnist and former counsel to the president John Dean comments on the possible copyright-infringement action that South Carolina Governor Mark Sanford might have against the newspaper that opted to publish his emailed love letters to his paramour. Dean includes in his column the results of his question-and-answer session with Los Angeles-based attorney John C. Kirkland, who is both well-versed in copyright law and the author of the best-seller "Love Letters of Great Men." Dean also notes the irony that while the newspaper at issue, South Carolina's The State, doubtless would vigorously enforce its own copyrights, it likely has infringed Sanford's. Friday, June 26, 2009

JOANNA L. GROSSMAN

The Supreme Court Curtails Federal Protection Against Age Discrimination

FindLaw columnist and Hofstra law professor Joanna Grossman analyzes the majority and dissent in a controversial recent Supreme Court case concerning age discrimination. As Grossman explains, a majority of the Supreme Court held that employees suing under the Age Discrimination in Employment Act (ADEA) cannot invoke the “mixed-motive” theory -- which makes it easier to prove discrimination when there is evidence of both legitimate and illegitimate motives for a firing, demotion, or other adverse employment action. Grossman notes that the mixed-motive theory can still be invoked by those suing for race or sex discrimination under Title VII -- and argues that Congress should now supersede the Court's ruling by making the theory available to ADEA plaintiffs too. Thursday, June 25, 2009

SHERRY F. COLB

The Highest Court of New York State Protects Privacy from GPS Monitoring

FindLaw columnist and Cornell law professor Sherry Colb discusses an important recent decision by the New York Court of Appeals, holding that police should have obtained a search warrant before they attached a GPS device to a suspect’s car and continuously monitored its whereabouts for over two months. Colb contrasts the approach of New York's highest court with that of the U.S. Supreme Court when it comes to Fourth Amendment issues involving the tracking of suspects. She also predicts that the New York decision's approach could influence federal courts considering cases involving GPS and the Fourth Amendment in the future. Thursday, June 24, 2009

MARCI A. HAMILTON

The Folly of the Federal Religious Freedom Restoration Act – and Texas's Too

FindLaw columnist and Cardozo law professor Marci Hamilton points to two recent judicial decisions as strong evidence supporting her argument that the passage of federal and state Religious Freedom Restoration Acts (RFRAs) was a mistake. In one decision, a tiny town was forced to accept a religious group's halfway house for ex-convicts despite its contrary zoning regulation. In the other decision, a fire department was forced to allow firefighters' religiously-motivated wearing of facial hair, despite safety risks. Hamilton contends that both cases should have come out the other way, and that both show that RFRAs ask courts to go outside their proper role. Tuesday, June 23, 2009

JULIE HILDEN

Salinger Sues: His Challenge to an Unauthorized "Catcher in the Rye" Sequel

FindLaw columnist, attorney, and author Julie Hilden comments on a copyright suit that is ongoing in the U.S. District Court for the Southern District of New York. The suit pits "Catcher in the Rye" author J.D. Salinger against Swedish writer Fredrik Colting, who has written an unauthorized "Catcher in the Rye" sequel featuring a 76-year-old version of Holden Caulfield, and seeks to publish the book in the U.S. Hilden comments on Salinger's chances of prevailing in the suit, and on the underlying question whether the unauthorized sequel is likely to be protected as a parody or criticism of the original. Monday, June 22, 2009

VIKRAM DAVID AMAR

What is Fair Game for the Sotomayor Hearings?

FindLaw columnist and U.C., Davis, law professor Vikram Amar considers which topics Supreme Court nominee Sonia Sotomayor, previously a judge on the U.S. Court of Appeals for the Second Circuit, can properly be asked about during her confirmation hearings. Amar contends that questions about Sotomayor's substantive legal views are fair game. He also finds questions about her judicial temperament to be legitimate -- but only if they cite specific instances when she is claimed to have been intemperate, so that she has a fair chance to rebut the accusations. Amar argues, too, that it is fair to ask Judge Sotomayor about her famous "wise Latina woman" comment, and that she would be well-advised to modify the view stated there, by retracting the claim that a wise Latina woman's decision would be "better" than that of a white man. However, he notes that her core point -- that one's background influences one's judgment -- is entirely mainstream and legitimate -- and has been accepted by the Supreme Court itself in contexts such as jury diversity, and by Justice Alito in his own confirmation hearing. Friday, June 19, 2009

NEIL H. BUCHANAN

How is Money Created? Debunking Some Myths About Recent Policies to Stabilize the Financial System and the Economy

FindLaw guest columnist, George Washington law professor, and Economics PhD Neil Buchanan argues that the now-common charge (made repeatedly in The New York Times) that the Federal Reserve is creating money "out of thin air" -- and that this decision will inexorably cause inflation and even hyper-inflation -- is misguided. Buchanan contends that the real risk is, instead, that the government is not doing enough to address the recession. He also explains why gold-standard proposals would not ultimately defeat the "money out of thin air" concern, even if that concern were valid. Buchanan concludes that the question is much more subtle than the "thin air" claim suggests: It is not about whether the Fed should create money (which it inherently must do), but about how, specifically, it should decide how much money to create. Thursday, June 18, 2009

MICHAEL C. DORF

The Obama Administration Defends the Defense of Marriage Act

FindLaw columnist and Cornell law professor Michael Dorf comments on the controversy over the Obama Administration's decision to argue that the federal Defense of Marriage Act (DOMA) is constitutional -- despite President Obama's promise, when he was running for election, to sign (and not veto) future legislation repealing DOMA. Dorf argues that the current Obama Administration litigation stance on DOMA is not necessarily directly inconsistent with the candidate's promise, for President Obama could consistently believe DOMA to be constitutional, yet also believe that it should be repealed. However, Dorf points to troubling particulars of the Obama Administration's litigation stance that, he argues, betray the spirit of Obama's campaign promise. Wednesday, June 17, 2009

ANITA RAMASASTRY

The FTC Goes to Court to Ban a Rogue Web Host from the U.S.

FindLaw columnist and U. Washington law professor Anita Ramasastry discusses a pending Federal Trade Commission (FTC) lawsuit against Pricewert, which operates the Internet Service Provider called Triple Fiber Network (3FN). As Ramasastry explains, the FTC's suit is based on allegations that Pricewert is implicated in activities that constitute unfair trade practices. She discusses the evidence that caused a Northern California federal district court to grant a temporary restraining order against the company and freeze its U.S. assets. However, she notes that even if the FTC wins its suit, as it seems likely that it will, the FTC's victory may be only partial, with the company simply moving its operations to servers outside the U.S. Teusday, June 16, 2009

JOANNE MARINER

Leaving Guantanamo

FindLaw columnist and human rights attorney Joanne Mariner considers the situation of a particular subset of remaining Guantanamo detainees, the Uighurs, who have been cleared to be released, and who, according to findings of a federal district judge, have no connection to terrorism. The Uighurs -- ethnically members of a minority group in China -- are citizens of countries such as Algeria, Egypt, Libya, and Uzbekistan where, if they are repatriated, they may face persecution. Moreover, the Uighurs' -- or any Guantanamo detainees' -- release into the United States is increasingly looking like an unlikely option in face of strong Congressional disapproval. Mariner considers the few remaining alternatives for the Uighurs, and explains the complicating factors -- such as the prospect of China's retaliating against countries that accept the Uighurs, and the problem of countries' inability to explain to their citizens why their country is accepting Guantanamo detainees, when the United States itself refuses to do so. Tuesday, June 16, 2009

JOHN W. DEAN

Expert Advice On Dealing With A Prior Administration's Use of Torture

FindLaw columnist and former counsel to the president John Dean draws from the work of the late Samuel P. Huntington -- a highly-regarded Harvard professor and former president of the American Political Science Association -- in commenting on how the Obama Administration should respond to the Bush Administration's past use of torture. As Dean explains, Huntington's work focused upon transitions from pure authoritarian rule to democracy. However, Dean also finds Huntington's work enlightening with respect to the recent transition, within our democracy, from an administration with a strongly authoritarian worldview, to one with a very different perspective. Dean offers lessons from Huntington's work that are directly tailored to the Obama Administration's current quandary. Friday, June 12, 2009

MARCI A. HAMILTON

The Maturing of a Movement: Statute of Limitations Reform for Sex Abuse Victims

FindLaw columnist and Cardozo law professor Marci Hamilton discusses the progress of the movement seeking statute-of-limitations (SOL) windows for past child sex abuse victims, whose claims against abusers and the institutions that turned a blind eye to them otherwise could not be heard in court. Hamilton tracks the beginning of the movement via the Boston Globe's reporting on abuse within the Catholic Church, and the movement's subsequent unfolding in California. Then she focuses upon the arguments currently being made in New York, as abuse survivors seek SOL legislation, and upon the current political situation there. Thursday, June 11, 2009

SHERRY F. COLB

Kansas v. Ventris: The Supreme Court Misconstrues the Right to Counsel

FindLaw columnist and Cornell law professor Sherry Colb comments on a recent Supreme Court Sixth Amendment right-to-counsel decision, and reflects on how well the decision does -- or does not -- square with prior Court precedent. As Colb explains, the decision required the Court to confront the following question: When police or prosecutors cause a suspect's cellmate to ask him about his alleged crime, can the damning answer the suspect gives to the cellmate (without the benefit of counsel) later be offered as inculpatory evidence against the suspect at trial, to contradict other, exculpatory statements that he makes? The Court said yes, but Colb contends that its ruling justifying that answer is incoherent -- and she points to serious problems, as well, with a closely-related Court precedent in this area of law. Wednesday, June 10, 2009

JOANNA L. GROSSMAN

When Same-Sex Couples Adopt: Problems of Interstate Recognition

FindLaw columnist and Hofstra law professor Joanna Grossman discusses some of the legal complexities that can affect same-sex couples who adopt children. After summarizing the current state of the law nationwide regarding same-sex couples' parenting, Grossman focuses on two recent cases from New York and Florida that both raise the following issue: What happens when same-sex partners become parents in one state, but then move to a state that does not accord the same protection to the partners’ respective parent-child relationships? She notes that, oddly, partners in same-sex couples may sometimes be well-advised to seek a formal adoption degree even as to children of whom they are biological parents -- and explains how adoption can serve as both a sword and a shield for parents in same-sex relationships. Tuesday, June 9, 2009

JOANNE MARINER

Global Views on Closing Guantanamo (the Right Way)

FindLaw columnist and human rights attorney Joanne Mariner points out that if the Obama Administration opts for a system of preventive detention -- that is, detention without charge or trial -- for some of the remaining Guantanamo detainees, then it will be out of step with many other governments around the world with respect to the protection of civil liberties. Mariner contrasts the democratic governments that currently eschew preventive detention with the repressive governments that currently embrace it. She also gives specifics as to how repressive governments have been emboldened regarding their detention systems by their ability to point to the U.S.'s similar system. Mariner argues that if Guantanamo itself is closed, but its underlying unjust detention system continues elsewhere, then the world's rightful outrage at this feature of U.S. justice, and repressive governments' ability to cite the U.S. example as justification, will both continue unabated. Monday, June 8, 2009

JULIE HILDEN

Can a Public School's Library Block Pro-Gay Websites? An ACLU Lawsuit Says No

FindLaw columnist, attorney, and author Julie Hilden discusses a recent suit filed by the ACLU challenging two Tennessee public school districts' use of filtering software. An "LGBT" checkoff within the software allowed the school districts to block high school students' access to pro-gay advocacy websites -- but not to anti-gay advocacy websites -- and the students sued. Hilden explains both why this lawsuit was a particularly strong one, and why other cases may raise additional complexities. In addition, she questions whether it is appropriate for public schools to buy software that offers the option of a check-off cutting off access to websites in a discriminatory fashion. Friday, June 5, 2009

DOUGLAS W. KMIEC

Sotomayor as a Student: Her Experience Illuminates Her Views on Race

FindLaw columnist and Pepperdine law professor Douglas Kmiec looks to Supreme Court nominee Sonia Sotomayor's student days to consider how her experience might affect her views on the law as a Justice. Interestingly, Kmiec notes, as a student, Sotomayor served as a research assistant to Jose Cabranes -- later her colleague on the U.S. Court of Appeals for the Second Circuit -- with respect to an article on America's conflicted role in regional foreign affairs. Kmiec suggests that the article, and in particular its discussion of Puerto Rican citizenship, may offer further insight into Sotomayor's views on race, which have become controversial since her nomination -- in a way that, he argues, should strengthen her candidacy. Friday, June 5, 2009

ANITA RAMASASTRY

Robocalling or Roboharassment? The FTC Sues Car Warranty Telemarketers

FindLaw columnist and U. Washington law professor Anita Ramasastry discusses developments in a suit that was recently filed by the Federal Trade Commission (FTC) against three companies and some of their executives. The FTC alleges that the companies' representations to call recipients --made in "robocalls," and by its customer service representatives -- regarding automobile warranties were deceptive and misleading, and that the companies simply ignored the National Do-Not-Call Registry in setting up their robocall systems. Ramasastry explains the laws that the FTC believes the companies flouted; argues that the FTC's case is likely a strong one; and advises consumers as to how to ensure that they are not tricked by misleading or deceptive phone or mail solicitations. Thursday, June 4, 2009

MICHAEL C. DORF

What is Sonia Sotomayor's Judicial Philosophy?

FindLaw columnist and Cornell law professor Michael Dorf identifies the judicial philosophy of Supreme Court nominee Sonia Sotomayor as legal realism. Dorf explains what embracing a legal realist philosophy entails, and contrasts Sotomayor's approach to the formalist philosophy embraced by Chief Justice John Roberts and Justice Clarence Thomas. He also contends that Sotomayor's judicial philosophy is the central fact into which the Senate Judicial Committee should -- and, given the ground rules of confirmation hearings, can -- inquire. Wednesday, June 3, 2009

KEVIN JOHNSON

In Context, Sotomayor's Remarks on Race and Judging Aren't Controversial

FindLaw guest columnist and U.C., Davis, law school Dean Kevin Johnson contends that the comments by Judge Sonia Sotomayor that have sparked conservative claims that she is a "reverse racist" are actually quite uncontroversial when put into their full context. Dean Johnson -- who attended the conference at which Sotomayor made the remarks at issue, during an address entitled "A Latina Judge's Voice" -- describes the purpose of the conference, Sotomayor's audience, and the range of topics Sotomayor discussed. In addition, Johnson also quotes parts of her address that directly undermine claims that she believes that all white males lack empathy. Finally, Johnson asks why, given the broad acknowledgement of the different perspectives that Justices Thurgood Marshall and Sandra Day O'Connor contributed to the Court, the suggestion that a Latina woman would also bring a unique perspective is deemed offensive. Tuesday, June 2, 2009

VIKRAM DAVID AMAR

An Analysis of the California Court Ruling Upholding Proposition 8

FindLaw columnist and U.C., Davis, law professor Vikram Amar explains several key aspects of last week's California Supreme Court ruling upholding the voter-passed constitutional amendment Proposition 8. First, Amar addresses the key question of why the court reached opposite conclusions about same-sex marriage in 2008 (when it found that the state constitution required marriage equality) and this year (when it held that marriage equality was now not constitutionally-required). Second, Amar covers the reasons why the court upheld the same-sex marriages performed in the interim between its first decision and Proposition 8 as valid. Third, Amar questions why the court characterized Proposition 8 as narrow, because same-sex couples can still enter into a registered partnership, when its prior opinion deemed the label of "marriage" to be highly significant. Monday, June 1, 2009

JOHN W. DEAN

The Olson/Boies Challenge to California’s Proposition 8: A High-Risk Effort

FindLaw columnist and former counsel to the president John Dean follows up on this week's California Supreme Court decision upholding Proposition 8 -- an amendment to the California Constitution banning same-sex marriage -- with a discussion of the suit initiated by high-profile lawyers David Boies and Theodore Olson challenging Proposition 8 as a violation of the U.S. Constitution. Dean explains why many GLBT groups, and the ACLU, are skeptical of Boies and Olson's challenge, fearing that it will only prompt a negative Supreme Court ruling that will bar the door for similar challenges for years to come, and pointing to same-sex marriage developments at the state level as a sign that progress can continue to be made in state courts and legislatures. Friday, May 29, 2009

JULIE HILDEN

The Defamation Suit Based on a "CSI" Episode: Will the Plaintiffs Prevail?

FindLaw columnist, attorney, and author Julie Hilden discusses an unusual, recently-filed defamation suit that is based on an episode of "CSI: Crime Scene Investigation" and on prior online summaries of the episode. The suit was brought by two married L.A. realtors who say that two sexually perverse characters in the episode were based on them, and that they have lost business as a result. Hilden contends that although it seems likely -- if the couple's allegations are true -- that the characters were indeed partially based on them, this defamation-by-fiction case is still likely to be a loser in court. Thursday, May 28, 2009

NEIL H. BUCHANAN

Mortgages, Housing, and the American Dream: Do We Really Need to Own Our Homes?

FindLaw guest columnist, George Washington law professor, and Economics PhD Neil Buchanan argues that the current housing crisis should prompt us all to carefully reconsider the fundamental American assumption that homeownership is superior to renting. Buchanan notes that our legal system offers multiple incentives for homeownership, but asks if those incentives are justified in light of the fact that homeownership leads families to invest virtually all their capital in one place, rather than diversifying investments. Buchanan points out that for many, it is preferable to rent rather than buy; that many homeowners only stay in a given home for a few years anyway; and that homeownership always carries significant risks, which have now been intensified and exposed by the recession. Thursday, May 28, 2009

SHERRY F. COLB

Ten Angry Men?: Why The Supreme Court Should Take a Jury Unanimity Case

The movie "12 Angry Men" told the story of how a lone holdout juror can make a profound difference in a criminal case. But -- as FindLaw columnist and Cornell law professor Sherry Colb explains -- there are two American states, Oregon and Louisiana, where prosecutors can procure a criminal conviction, for a lesser felony than murder, by convincing only ten jurors out of twelve. In 1972, the U.S. Supreme Court okayed such split-verdict criminal convictions, but Colb argues that it should grant review in a case that would allow the Court to reverse itself. Colb points out that even when unanimity is required, holdouts may be rare due to the human tendency to conform, and adds that, when unanimity is not required, there is little incentive for the majority even to listen to dissenters. She contends that if the Court required unanimous juries under the Sixth Amendment, it would also effectively be requiring a process of dialogue and persuasion that would improve the accuracy and fairness of verdicts. Wednesday, May 27, 2009

KAREEM U. CRAYTON

The Court's NAMUDNO Decision: Judging the Costs and Efficiency of Preclearance

FindLaw guest columnist and University of Southern California law and political science professor Kareem Crayton discusses the cost-benefit analysis with respect to "preclearance" -- the process, mandated by the Voting Rights Act, by which certain states and localities that have significant records of racial discrimination must submit new changes in election laws to the federal government for approval. As Crayton explains, at the recent Supreme Court oral argument in the NAMUDNO case, Justice Kennedy suggested that, over the past decade, states and municipalities may have spent over a billion dollars to comply with the preclearance requirement. However, Crayton presents evidence suggesting that this estimate is far too high -- and offers a detailed cost-benefit analysis as to the preclearance requirement that indicates that its benefits far outweigh its costs. Wednesday, May 27, 2009

JOANNA L. GROSSMAN

AT&T v. Hulteen: The Supreme Court Deals a Blow to Once-Pregnant Retirees

FindLaw columnist and Hofstra law professor Joanna Grossman analyzes the Supreme Court's recent decision in a case that raised the question whether retiring female workers must legally get credit for time when they were compelled to take leave due to pregnancy-related disability. Currently, the law requires that employers must treat pregnancy-related disability like another other disability, with respect to leave, but at the time the women's leaves were taken, the law was arguably different. Grossman explains the reasoning of both Justice Souter's opinion for the majority and Justice Ginsburg's dissent, and argues that Ginsburg was correct that the women were legally entitled, upon their retirement, to credit for the leave they took. Tuesday, May 26, 2009

VIKRAM DAVID AMAR

Recent Cases Highlight the Importance of States' Protections of Liberties

FindLaw columnist and U.C., Davis, law professor Vikram Amar covers two California cases illustrating that, although most Americans think of the U.S. Constitution when they think of constitutional protections, state constitutions can also play a vital role. The first case involves California's decriminalization of marijuana. Amar explains the precise relationship of federal and state law regarding medical marijuana: Although federal law makes medical marijuana illegal, state entities -- while they cannot violate federal law, or interfere with its enforcement -- are not obliged to reinforce or assist in implementing federal law. The second case involves a California public school's drug-testing policy requiring all students involved in "competitive" activities -- not just athletes -- to be tested; the policy, Amar notes, was enjoined by a California state court. Friday, May 22, 2009

NEIL H. BUCHANAN

The 2009 Social Security Trustees' Report: Good News Behind the Headlines

FindLaw guest columnist, George Washington law professor, and Economics PhD Neil Buchanan argues that the dire headlines and commentary about Social Security, in the wake of this year's Trustees' report, paint a much bleaker picture than is truly accurate. Buchanan puts the facts and figures regarding Social Security carefully in context, and assuages young people's fears that, by the time they retire, there will be nothing left for them. In fact, he contends, there is no question that their benefits' buying power will exceed that of their grandparents' benefits. Buchanan also warns about conflating the fates and situations of Social Security and Medicare, when the latter is indeed in serious trouble. Thursday, May 21, 2009

MICHAEL C. DORF

The Supreme Court Dismisses a 9/11 Detainee's Civil Lawsuit

FindLaw columnist and Cornell law professor Michael Dorf discusses a very significant civil procedure decision that the Supreme Court handed down this week. The decision, Ashcroft v. Iqbal, concerns a complaint filed by a man who alleges that, after 9/11, he was brutally abused while in immigration detention. As Dorf explains, a majority of the Supreme Court held that the man's suit could go forward as against his jailors, but not as against the then-Attorney General or then-FBI Director. Dorf notes two important aspects of the decision: its effect of creating great uncertainty as to how fully-particularized allegations in a civil complaint must be; and its seeming assumption that -- despite famous counterexamples -- Bush Administration wrongdoing must have been the work of a few bad apples, not the result of a conscious policy. Wednesday, May 20, 2009

ANITA RAMASASTRY

Do Interactive Websites Have a Legal Duty to Remove Malicious Content?

FindLaw columnist and U. Washington law professor Anita Ramasastry discusses a recent decision by the U.S. Court of Appeals for the Ninth Circuit that grew out of a nightmare scenario: A woman's ex-boyfriend put nude pictures of her on Yahoo, along with her work address, work phone number and email address. Then, pretending to be her, he made sexual overtures to men in Yahoo's chatrooms -- directing them to the profile and thus inducing them to call her, email her, and even show up at her workplace expecting sex. The woman -- the plaintiff in the suit -- alleges that a Yahoo representative told her the site would de-post the material, but that it did not do so until she sued the company. She sued Yahoo for negligence and promissory estoppel; the first claim was dismissed, but the second was not. Ramasastry argues that this was the right result, describing and commenting on the immunity created by Section 230 of the Communications Decency Act for websites sued in their capacity as publishers of user content. Tuesday, May 19, 2009

JOANNE MARINER

Military Commissions, Round Three

FindLaw columnist and human rights attorney Joanne Mariner discusses a recent decision by President Obama that pleased a number of prominent conservatives, but has troubled many liberals: Obama has declared that his administration will try a set of remaining Guantanamo detainees before a revised version of President Bush's military commissions, rather than prosecuting them in the federal courts. Mariner -- noting that this is a sharp reversal of Obama's stance on the commissions during his campaign -- argues that Obama was right the first time. She cites a series of strong reasons why federal court trials are preferable, and why Obama's revisions to Bush Administration tribunal procedures, while an improvement, fall short of guaranteeing due process. Mariner also points to a possible silver lining to Obama's decision, however: The option of military tribunal proceedings may decrease or eliminate the number of detainees who will be held indefinitely without trial. Monday, May 18, 2009

JOHN W. DEAN

The Politics of Excusing Torture In The Name of National Security

FindLaw columnist and former counsel to the president John Dean explains the difficult path President Obama must now walk as he seeks both to forge good relationships with the national security establishment, and to maintain good relationships with supporters who often disagree strongly with that establishment. To make things even more complicated, Dean argues that part of the George W. Bush Administration's legacy was to leave Obama facing an alienated national security establishment, which Dean contends was seriously misled, manipulated, and humiliated during the eight years of that presidency. Dean considers how each of these factors plays into the controversy over Obama's decision not to release photos of detainees being tortured by American soldiers. Friday, May 15, 2009

JULIE HILDEN

Why Sexting Should Not Be Prosecuted as "Contributing to the Delinquency of a Minor"

FindLaw columnist, attorney, and author Julie Hilden continues a series of columns on the legal aspects of "sexting" -- the practice, prevalent among teens, of sending nude and semi-nude photos of oneself or others via cellphone. In a prior column, Hilden contended that a Pennsylvania D.A. should not have sought to prosecute an instance of sexting under child pornography laws. In this column, Hilden argues, similarly, that an Ohio D.A. should not have sought to prosecute sexting under that state's contributing-to-the-delinquency-of-a-minor statute. She contends that such statutes not only raise serious constitutional issues based on their vagueness, but also are ill-suited for the unique context of teen sexting. Wednesday, May 13, 2009

JOANNA L. GROSSMAN

EEOC Recommends Employer "Best Practices" to Promote Work/Family Balance

FindLaw columnist and Hofstra law professor Joanna Grossman discusses a new set of "best practices" issued by the Obama Administration's Equal Employment Opportunity Commission (EEOC), and designed to provide relief to caregivers who must balance commitments to family members and work commitments. Grossman describes the EEOC's new philosophy -- going beyond combatting discrimination to seek to affirmatively improve work/life balance for workers -- and details the way that workers will likely be affected. She also notes how work/family issues and gender equality issues may intersect, in light of the disproportionate number of women who serve as caregivers. Tuesday, May 12, 2009

SHERRY F. COLB

Implications of the "Holier-than-Thou Effect" For Criminal Justice

FindLaw columnist and Cornell law professor Sherry Colb examines how the "holier-than-thou effect" -- in which individuals predict that they would act more morally in certain situations than, in fact, they do in practice -- may be negatively influencing America's criminal justice system. Colb asks whether America's stunningly high incarceration rate may have resulted, in part, from Americans' refusal to empathize with prisoners, due to the "holier-than thou effect." For instance, if we believed that we ourselves might turn to dealing drugs under certain life circumstances, would our laws be less harsh on drug dealers? Colb suggests that a more accurate ability to predict our own behavior might convince us to adopt a perspective far closer to "There but for the grace of God go I," and to shift from an objective of retribution to one of rehabilitation. in the case of some offenses and offenders. Monday, May 11, 2009

VIKRAM DAVID AMAR

Why Obama and the Senate Must Ask Specific Questions of Souter's Replacement

FindLaw columnist and U.C., Davis, law professor Vikram Amar considers both the criteria that should be used in the search for a replacement for Supreme Court Justice David Souter, and the questions President Obama should ask of that person before nominating -- and the Senate, before confirming -- him or her. Amar contends that it is reasonable to look at candidates' demographics and personal backgrounds, but that, in the end, we must remember that these factors are relevant only insofar as they will inform the candidate's contribution, as a Justice, to the Court's work of deciding the cases before it. In addition, he argues for a sharp break from the recent practice of shying away from asking candidates questions about their specific views on particular Court decisions. Asking such questions, Amar argues, is not only the best, but the only, way of seeking what kind of Justice a possible nominee will really be. Friday, May 8, 2009

ANITA RAMASASTRY

The Failure of Facebook's Voter Experiment: What It May Mean

FindLaw columnist and U. Washington law professor Anita Ramasastry discusses the possible lessons we may take from Facebook's inability to get even one percent of its users to vote on its proposed new Terms of Service (ToS). Ramasastry contends that Facebook might have seen better voter turnout if it had given its users better notice -- for instance, by doing so via email and doing so more than once. Moreover, she argues that Facebook should not respond to the low voter turnout by eliminating user votes on changes to the ToS, given that important issues such as the protection of user privacy and users' rights to their content are likely to be at stake. Thursday, May 7, 2009

JOANNE MARINER

Obama's Counterterrorism Reforms: What Remains to be Done

FindLaw columnist and human rights attorney Joanne Mariner assesses the ways in which the Obama Administration has thus far reformed its counterterrorism policies, and recommends additional measures that the Administration should also take. Among the as-yet-unresolved issues, Mariner explains, are the fates of the remaining Guantanamo detainees, some of whom need to be resettled; and the question of how those among the detainees who are suspected of terrorism should be prosecuted. Mariner notes that while military commission proceedings have been halted, there has been no final decision by the Administration to move the detainees' cases into the federal courts -- a step that she argues is the right solution here. Wednesday, May 6, 2009

MICHAEL C. DORF

The Supreme Court Upholds the FCC's Policy on "Fleeting Expletives"

FindLaw columnist and Cornell law professor Michael Dorf discusses the Supreme Court's recent, 5-4 decision upholding the Federal Communications Commission's position that even "fleeting expletives" -- that is, expletives used as intensifiers, and not to refer to excretion or to sex -- are banned from the airwaves and if used, can result in a fine. Dorf explains the reasons why the case divided the Court, and explores an interesting aspect of Justice Thomas's view. He also offers some possible solutions to a puzzle: Why did the Court use the terms "S-Word" and "F-Word" when it had used the actual expletives at issue -- "shit" and "fuck" -- in prior opinions? Did the arrival of Chief Justice Roberts trigger the change? And, did the use of the euphemisms strengthen the majority opinion's logic, or undermine it? Monday, May 4, 2009

JOHN W. DEAN

Q & A Session on Bad Advice: Bush's Lawyers In The War On Terror

FindLaw columnist and former counsel to the president John Dean offers the results of his Q&A session with University of Colorado (Boulder) law professor Harold Bruff. Bruff is the author of a new book on how President Bush's lawyers at the Office of Legal Counsel (OLC) came to provide him with dubious -- and now much-criticized -- advice supporting torture and other "war on terror" tactics, despite OLC's long tradition of providing balanced and independent legal advice. Bruff describes the inner dynamics that led Bush Administration OLC lawyers to act differently than their predecessors, reading the law in such a way as to magnify the law and precedent in favor of presidential power, and to virtually ignore the law and precedent to the contrary. Friday, May 1, 2009

MARCI A. HAMILTON

How a Supreme Court Case Tore the Republican Party in Two

FindLaw columnist and Cardozo law professor Marci Hamilton contends that the roots of the current split in the Republican party -- as exemplified by Senator Arlen Specter's defection to the Democratic Party and Senator Olympia Snowe's recent editorial criticizing the party -- can be traced back to Roe v. Wade. However, Hamilton also argues that the fault for the split lies not with the Supreme Court and its controversial decision, but rather with the Republican Party itself, for giving a single issue the lion's share of its attention and focus. Thursday, April 30, 2009

SHERRY F. COLB

Avoiding Race Discrimination Between a Rock and a Hard Place: The U.S. Supreme Court Hears Argument in Ricci v. DeStefano

FindLaw columnist and Cornell law professor Sherry Colb discusses Ricci v. DeStefano, a case in which the Supreme Court recently heard oral argument. As Colb explains, the case seems to present a paradox: If an employer takes an action to avoid engaging in one form of race discrimination – disparate-impact discrimination – can that very action constitute another form of race discrimination – disparate-treatment discrimination? And if so, what is the employer to do? In the case before the Court, a fire department found that its test for employees yielded promotions only for three white employees, and learned that the test was more likely than similar tests to favor whites over African-Americans. The department decided to junk the test's results on the ground that the test might be discriminatory -- but the white employees who would otherwise have been promoted said that it was they who had now become victims of discrimination. Wednesday, April 29, 2009

RODGER CITRON

The Supreme Court Considers a Powerful Challenge to the Voting Rights Act

FindLaw columnist and Touro law professor Rodger Citron discusses a case in which the Supreme Court is holding oral argument today -- Northwest Austin Municipal Utility District Number One v. Holder ("NAMUDNO"). As Citron explains, the case concerns the interpretation of Section 5 of the Voting Rights Act, which involves the federal pre-clearance of changes to states' voting rules. Citron discusses the legislative history of the Act; explains the nature of the constitutional issue, which pits civil rights against state sovereignty; and predicts that Justice Kennedy -- the very likely swing vote here -- will vote to sustain Section 5 as constitutional. Wednesday, April 29, 2009

JULIE HILDEN

How Should Teens' "Sexting" – the Sending of Revealing Photos – Be Regulated?

FindLaw columnist, attorney, and author Julie Hilden discusses a Pennsylvania prosecutor's recent attempt to go after teens' "sexting" under child pornography laws, and the ACLU's suit to stop him from doing so, which resulted in a temporary injunction. Hilden contends that, in this particular case, the child pornography laws did not fit, since the photos were not of the teens' genitals or of sexual contact. However, she contends that before a future "sexting" case arises that does technically fit the laws, we should figure out how to legally (or extralegally) regulate "sexting" in a way that does not conflate it with child pornography, but instead addresses its true nature. Tuesday, April 28, 2009

JULIE HILDEN

Is It a Violation of Privacy Law to Reproduce a MySpace Posting in a Context Where the Very People It Targets Will See It? A California Court Says No, But Allows An Intentional Infliction of Emotional Distress Claim to Stand

FindLaw columnist, attorney, and author Julie Hilden discusses a recent California appellate decision that concerns the boundaries of privacy in the age of MySpace and similar sites. As Hilden explains, the case arose because a MySpace poster and her family claim that they suffered severe repercussions when their town's newspaper -- without the poster's permission -- published her MySpace attack on the town as a "Letter to the Editor." Hilden considers the validity and strength of the various claims that arose out of the publication of the letter, and of a possible copyright claim that was not brought. Monday, April 27, 2009

EDWARD LAZARUS

Reflections on Almost a Decade of Writing for Writ – and on Some of the Key Legal Reforms For Which I Have Advocated In This Space

FindLaw 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. Friday, April 24, 2009

VIKRAM DAVID AMAR & ALAN BROWNSTEIN

If California Passes Its Bill Criminalizing the Hanging of a Noose on Someone Else's Property or Public Property with Intent to Terrorize, Would This Anti-Hate Law Be Constitutional?

FindLaw columnist Vikram Amar and FindLaw guest columnist Alan Brownstein, both U.C., Davis, law professors, comment on the constitutionality of a bill currently pending in the California Assembly. If the bill becomes law, it will criminalize hanging a noose on another's property or upon the premises of a school, workplace, public park, or college campus, with the intent to terrorize another. Since hanging a noose, in this context, communicates a message -- albeit a reprehensible one -- will the law be struck down as violating the First Amendment? Amar and Brownstein analyze several key Supreme Court "hate speech" precedents -- which are, as they explain, in tension with each other -- in order to predict how the Supreme Court might analyze the California law. Thursday, April 23, 2009

MICHAEL C. DORF

Why President Obama Should Consider Pardoning those Who Designed, Authorized, and Carried Out the Bush Policy of Abusing Detainees

FindLaw columnist and Cornell law professor Michael Dorf discusses a number of questions that are especially timely in light of the recent release of four memos by Bush Administration attorneys that authorized methods of interrogation which many eminent legal experts believe constituted torture under the applicable law. These questions include: Was there any plausible legal basis for the memos' conclusions? Should the Obama Administration prosecute those who designed, authorized, and/or carried out the policies to which the memos gave their blessing? And, might pardoning those who were inculpated in these practices and policies actually be a better solution than simple non-prosecution, in that pardons would at least admit that what was done was criminal? Dorf argues that President Obama should seriously consider the pardon option. Wednesday, April 22, 2009

ANITA RAMASASTRY

Does an Unauthorized User of a Website Consent to Its Terms of Use, Even When the User Is "Borrowing" Someone Else's Account or Subscription? A Maryland-Based Federal Court Correctly Says Yes

FindLaw columnist and U. Washington law professor Anita Ramasastry discusses an interesting recent federal district court decision holding that an unauthorized user of a website -- for instance, one who borrows the user ID and password of another -- can still be held to the site's Terms of Use, including a provision regarding forum selection in the event of a lawsuit. As Ramasastry explains, this result can be based on a number of different theories: A "borrower" may have specific notice of the Terms of Use if the website repeatedly puts them on the screen, or a "borrower" may be seen as the sublicensee of the authorized user, who is the licensee of the website. Tuesday, April 21, 2009

JOANNE MARINER

Tortured Evidence and Terrorist Blacklists

FindLaw columnist and human rights attorney Joanne Mariner discusses last week's release of four memos from the Bush Administration in which Bush Justice Department attorneys claimed that it was legal for U.S. interrogators to apply to detainees even techniques that constituted torture under U.S. and international law. Mariner raises several questions about how the evidence that resulted from these torturous practices was used. She asks, for example, Was the tainted evidence used exclusively for further investigation, or did it also affect legal and administrative proceedings -- the outcomes of which, in turn, affected rights? Mariner notes that this question is especially important because information procured by torture is not only illegally obtained, but also typically highly unreliable. Thus, for instance, detainees may have been kept for a longer time at Guantanamo based on unreliable evidence that resulted from their or other detainees' undergoing torture. Mariner notes that unreliable evidence arising out of terror may also have tainted the government's blacklists composed of individuals and groups claimed to be connected to terrorism -- potentially resulting in innocent people and organizations appearing on the blacklists and suffering the consequences. Monday, April 20, 2009

JOHN W. DEAN

The New Nattering Nabobs of Negativism Are Gunning For Obama's Judicial Nominees: A Republican Strategy That We Must All Hope Fails

FindLaw columnist and former counsel to the president John Dean describes the present, and predicts the future, Republican strategy toward President Obama's nominees to the federal judiciary. Dean contends that Republicans are wrong to complain that too many George W. Bush nominees to judgeships were blocked, in light of certain statistics: Over 316 Bush Justices and judges were confirmed; those jurists now represent over 37 percent of the federal judiciary; and the Senate approved 95 percent of Bush’s nominees. Based on recent Republican statements and actions, Dean predicts that while President Obama deserves at least the same courtesy that former President Bush received, he will not receive it -- despite his efforts toward bipartisanship in the nomination process. Friday, April 17, 2009

MARCI A. HAMILTON

Taking Stock of the 2008 Intervention at the Texas Fundamentalist Latter-Day Saints Compound On Its One-Year Anniversary: The Lessons We Must Learn to Effectively Protect Children in the Future

FindLaw columnist and Cardozo law professor Marci Hamilton reflects on the fallout from, and lessons from, last year's decision by Texas's Child Protective Services (CPS) to enter a Fundamentalist Latter-Day Saints (FLDS) compound in the state, and to remove children from the compound based on evidence that statutory rapes and bigamous marriages involving underage girls were occurring there. Hamilton takes strong issue with much of the press coverage of the intervention -- contending that CPS was simply following its usual procedures after receiving a hotline call, finding evidence of abuse, and removing children who might otherwise suffer further abuse from the situation. She also argues that the Texas courts, in this instance, ignored blatant evidence of violations of state criminal statutes, and let down the children at issue. Moreover, she notes that there are now voices from within CPS itself indicating that two of its attorneys were disappointed that the children were eventually returned, feeling that there was a strong case for termination of parental rights that was not considered. Thursday, April 16, 2009

SHERRY F. COLB

Feminists For Life and the Hard Questions It Must Confront

FindLaw columnist and Cornell law professor Sherry Colb reflects upon a speech recently given at Cornell by Karen Shablin, a spokesperson for the group Feminists for Life (FFL). Colb contends that Shablin is right to question whether pregnant college women truly have a free choice to decide to opt to have children, in light of the daunting practical obstacles that would be involved. Pro-life and pro-choice feminists, Colb argues, should be able to agree that women should never feel compelled to give up the chance to have children in order to pursue an education and career. However, Colb also takes strong issue with FFL's failure to take any position on whether women should avail themselves of contraception; she argues that an organization like FFL, which is expressly seeking to provide alternatives to abortion, should endorse the very common alternative of contraception. Wednesday, April 15, 2009

EDWARD LAZARUS

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

Commentators 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. Tuesday, April 14, 2009

JOANNA L. GROSSMAN

The Vermont Legislature, Inventor of the "Civil Union," Grants Full Marriage Rights to Same-Sex Couples: Why It Decided Civil Unions Were Not Sufficient to Ensure Equality

FindLaw columnist, Hofstra law professor, and visiting Vanderbilt law professor Joanna Grossman discusses the reasons that convinced the Vermont legislature -- without any prompting from the state's courts -- to grant full marriage rights to same-sex couples. As Grossman explains, the same legislature that begrudgingly invented the civil union as a marriage alternative has now concluded, based on the evidence presented to it, that in practice, civil-union couples are not treated as the equal of married couples. In this case, Grossman notes, "separate but equal" proved truly unequal in real-world scenarios where civil-union couples confronted obstacles married couples did not face. Monday, April 13, 2009

JOANNE MARINER

International Complicity in US Abuses, Part III

In the third in a series of related columns, FindLaw columnist and human rights attorney Joanne Mariner discusses additional evidence regarding the Bush Administration's collaboration with other countries' governments in "war on terror" human rights abuses. In particular, Mariner focuses on evidence, given by a former Guantanamo detainee, of British involvement in torture. Mariner notes that the British Attorney General has ordered a probe of the former detainee's allegations. In addition, Mariner cites evidence of collaboration by Pakistan, Australia, Georgia, and Italy in apparent U.S. abuses of detainees' rights. She also notes that evidence indicates that Pakistani authorities collaborating with the U.S. went so far as to hold detainees' relatives, and even their children, as hostages. Friday, April 10, 2009

VIKRAM DAVID AMAR

The Supreme Court's Latest "Exclusionary Rule" Decision: Why Justice Kennedy, the Swing Vote, Was on the Liberal Side Here, But the Conservative Side in a Prior Decision Regarding the Rule

FindLaw columnist and U.C., Davis, law professor Vikram Amar discusses an interesting contrast between two "exclusionary rule" Supreme Court decisions as to which Justice Anthony Kennedy was the swing vote; one decision mandated exclusion of the evidence at issue, while in the other, the Court's majority permitted the evidence at issue to be introduced in court. Amar considers which aspects of the two cases -- one of which, Corley v. United States, was decided just this week -- may have led Justice Kennedy to cast his crucial vote as he did. As Amar explains, the difference in Justice Kennedy's vote may also involve his views on Congressional reversals of prior Supreme Court decisions. Friday, April 10, 2009

JOANNA L. GROSSMAN AND LINDA C. MCCLAIN

The Iowa Supreme Court Appeals to Iowa's Constitution and Iowan Values to Strike Down State Ban on Same-Sex Marriage – and Renders the Practice Once Again Legal In Three (Make that Four) States

Recently, the Iowa Supreme Court made headlines by striking down gay marriage as contrary to Iowa's constitution. FindLaw columnist, Hofstra law professor, and visiting Vanderbilt law professor Joanna Grossman and FindLaw guest columnist and Boston University law professor Linda McClain offer a careful, detailed analysis of the Iowa Supreme Court's opinion, and especially of its emphasis on why upholding a ban on same-sex marriage would clash with what it means to be an Iowan. Grossman and McClain also consider the significance of this heartland state's defining equality to encompass a right to same-sex marriage, and place the ruling in the context of other same-sex marriage developments nationwide. Thursday, April 9, 2009

ANITA RAMASASTRY

Google Street View's Troubles in the United Kingdom: Why the UK May Pose a Legitimate Privacy Challenge for Photographic Mapping, and How Google Should Respond

FindLaw columnist and U. Washington law professor Anita Ramasastry discusses an interesting phenomenon: There has been much more opposition to Google Street View -- a part of Google Maps that relies on online postings of photos of streets and houses taken from Google's cars -- in the UK, than in the US and elsewhere. Ramasastry details the strong backlash Street View has evoked in the UK, including a number of cases in which couples and families were put into conflict based on photographs captured by Street View cars and posted online. She also discusses UK privacy law, and suggests that, in the UK, Google Street View may be able to quiet the controversy it has faced by complying with rules similar to those that govern closed-circuit television there, and by taking care to protect domestic-violence victims from having former abusers be able to locate them based on unblurred Street View images. Wednesday, April 8, 2009

MICHAEL C. DORF

Why the Supreme Court Decision Upholding Cost-Benefit Analysis Under the Clean Water Act Should Not be Used to Discredit Best-Practice Standards

FindLaw columnist and Cornell law professor Michael Dorf offers an in-depth look at a recent, important Supreme Court decision at the intersection of environmental law and administrative law. Dorf explains three types of standards that regulators may use when evaluating particular technologies (design standards, performance standards, and best-practice standards); their pros and cons; and how they can be combined. He also comments on how the Justices' ideologies may have played a role in the way they split their votes in the case. Monday, April 6, 2009

JOHN W. DEAN

The Strong Message Attorney General Eric Holder Sent to All Federal Prosecutors When He Dismissed the Indictment Against Senator Ted Stevens, and the Apparent Basis for the Dismissal

FindLaw columnist and former counsel to the president John Dean discusses the basis for Attorney General Eric Holder's recent decision to dismiss the indictment, based on allegations of corruption, that the Department of Justice had brought against Senator Ted Stevens, and which had resulted in a conviction. Dean praises Judge Emmet Sullivan of the U.S. District Court for the District of Columbia for issuing a series of rulings that brought apparent DOJ misconduct to light and that served as a basis for Holder's decision. He also faults Bush Administration Attorney General Michael Mukasey for not addressing Sullivan's rulings by taking strong action, as his successor, Holder, later did. Friday, April 3, 2009

CARL TOBIAS

The New Postpartisan Selection of Federal Judges: President Obama Displays His Commitment to Ending the Confirmation Wars

FindLaw guest columnist and U. Richmond law professor Carl Tobias discusses President Obama's recent nomination of U.S. District Judge David Hamilton to an Indiana-based seat on the U.S. Court of Appeals for the Seventh Circuit, arguing that this nomination is a strong sign that President Obama intends to embrace a less partisan judicial confirmation process than we have seen for 20 years. Tobias criticizes President Bush for having failed to consult with local Senators on nominations, for choosing conservative nominees who could not command a consensus, and for even going so far to renominate candidates whom Senators who were his fellow Republicans opposed. Based on the Hamilton nomination, Tobias suggests that President Obama may follow a new model, one in which the President seeks out nominees acceptable to local Senators of both parties prior to making a nomination, and declines to try to force controversial candidates through the Senate. Thursday, April 2, 2009

MARCI A. HAMILTON

The Recent Federal District Court Decision Regarding the "Morning After" Pill: How It Reveals Evidence of the Bush White House's Interference with the FDA, Where Religion Displaced Science to the Detriment of the Public Good

FindLaw columnist and Cardozo law professor Marci Hamilton discusses a recent, controversial decision by an Eastern District of New York federal judge, which held that that the Bush FDA violated administrative law's prohibition against arbitrary and capricious agency action when it banned the sale of the emergency contraceptive "Plan B" over the counter to women under 18. Hamilton details the facts that convinced the judge that the Bush FDA's actions had violated the law, and contends that this case is an instance in which a decision that should, by law, have been made based on science, was made based on religion instead. Thursday, April 2, 2009

SHERRY F. COLB

Why A Botched Abortion Case Should, and Does, Inspire Outrage: The Sycloria Williams Story

FindLaw columnist and Cornell law professor Sherry Colb discusses the criminal charges recently brought against a woman, Belkis Gonzalez, who allegedly suffocated a fetus that was inadvertently delivered alive at an abortion clinic that Gonzalez owned. This month, Gonzalez was charged with tampering with evidence and the unlicensed practice of a health-care profession resulting in serious bodily injury -- but not with homicide. She also faces a wrongful-death suit from the infant's mother, Sycloria Williams. Colb contends that this should not be seen as an abortion case, because the infant had been delivered alive when Gonzalez killed it; explains the key moral and legal differences between these facts and a true abortion scenario; and considers why Gonzalez might have acted as she allegedly did: What rationale -- even if an indefensible one -- might have gone through her mind? Wednesday, April 1, 2009

JOANNA L. GROSSMAN

Who's Your Daddy? A New York Court Says the Answer Doesn't Matter When the Court Is Dividing Marital Property

FindLaw columnist and Hofstra law professor Joanna Grossman discusses a notable New York appellate case that confronted the question whether it is relevant to a divorce court's division of marital property if one of the wife's children, born during the marriage, was not, in fact, fathered by her husband -- but she claimed otherwise. The New York appellate court decided that this revelation about the child's parentage and its concealment was not sufficient to affect the marital-property division, and Grossman explains why its decision was likely the right one, given the relevant law and history. Tuesday, March 31, 2009

VIKRAM DAVID AMAR

Reforming the Way Senate Vacancies are Filled: A Q&A About the Proposed Constitutional Amendment and the "ELECT Act" Bill

FindLaw columnist and U.C., Davis, law professor Vikram Amar follows up on his recent column -- written with FindLaw guest columnist and attorney Michael Schaps -- regarding proposed ways to address the problems with giving governors the power to temporarily fill Senate vacancies. (As readers will recall, these problems were recently illustrated by several controversies regarding such appointments, and especially by the scandal surrounding former Illinois Governor Rod Blagojevich.) In their prior column, Amar and Schaps covered the pros and cons of two proposed solutions, one via constitutional amendment and one (which they provisionally endorsed) via a proposed statute, the ELECT Act, which would ensure that vacancies will be filled quickly through special elections. In this column, Amar answers frequently-asked questions arising out of the debate over the proposed amendment and statute, including questions about the constitutionality of the ELECT Act. Friday, March 27, 2009

EDWARD LAZARUS

The AIG Controversy: The Public's Anger Is Certainly Understandable, But Some Suggested Solutions Would Go Much Too Far

FindLaw 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. Thursday, March 26, 2009

JOANNE MARINER

The Global Impact of U.S. "War on Terror" Abuses, Part II

FindLaw columnist and human rights attorney Joanne Mariner follows up on her recent column discussing the global impact of the U.S.'s "war on terror" human rights abuses -- such as torture, "disappearances," and arbitrary detention. In this second column, Mariner focuses on a number of countries with which the evidence suggests that the U.S. collaborated in abuses, often through the practice of rendition: Egypt, Ethiopia, Gambia, Indonesia and Jordan. Mariner also describes how some evidence that resulted from rendition to Egypt, and from torture, made its way into the Bush Administration's case, conveyed to the U.N. by Secretary of State Colin Powell, for a purported Iraq-Al Qaeda link. Wednesday, March 25, 2009

ANITA RAMASASTRY

Is Facebook's New "Bill of Rights" a Lasting Policy Change? Why User Inaction May Cause the Experiment to Fail

FindLaw columnist and U. Washington law professor Anita Ramasastry discusses Facebook's actions in the wake of the controversy over its changing its Terms of Service, without direct notice to its users and in a way that purported to give Facebook a perpetual license to posted content, even when users had left the service. As Ramasastry explains, Facebook has now proposed a new system under which it has reverted to its original Terms of Service, and given users the chance to vote on its new "Principles" and "Statement of Rights and Responsibilities." Ramasastry provides a detailed account of how users' voting on this and future amendments to Facebook's contract with its users will work, and raises questions about whether the new system will be workable and effective. Tuesday, March 24, 2009

MICHAEL C. DORF

What Constitutional Rights Should Schoolchildren Have? Two Recent Cases Underscore the Ways in Which Children Are Not Simply Miniature Adults

FindLaw columnist and Cornell law professor Michael Dorf examines the constitutional rights of schoolchildren, focusing on a federal appellate case in which the Supreme Court recently granted certiorari, and another in which the Court is also likely to grant review. The cases concern, respectively, schoolchildren's rights against strip-searches seeking contraband, and schoolchildren's own rights not to recite the Pledge of Allegiance (separate from their parents' rights not to have their children be required to do so). One of Dorf's key themes is that it is wrong to reflexively grant children lesser constitutional rights than we grant adults; instead, Dorf contends, children should enjoy different constitutional rights than adults enjoy, because children's rights should be tailored to their status and situation. Monday, March 23, 2009

JOHN W. DEAN

Howard Fineman's "Thirteen American Arguments": A Key Briefing on the Core Political Clashes That Matter Now, and Historically Have Mattered, to Americans

FindLaw columnist and former counsel to the president John Dean comments on journalist Howard Fineman's recent book, The Thirteen American Arguments: Enduring Debates that Inspire and Define Our Country -- which Dean counts as a true tour de force. Dean praises Fineman, in particular, for providing knowledgeable and agenda-free coverage of the issues that have sharply divided Americans, and writing an account of each subject that will interest not only beginners, but experts well-versed in the topic, too. Dean focuses, in particular, on one topic Fineman raises: the issue of immigration -- legal and, especially, illegal. Friday, March 20, 2009

MARCI A. HAMILTON

"Civil Liberties" and Uncivil Lies: What the New York Civil Liberties Union and the Catholic League for Religious and Civil Rights Have in Common – An Agenda to Keep Child Predator Identities Secret

FindLaw columnist and Cardozo law professor Marci Hamilton argues that the New York Assembly should pass the bill, now pending before the full Assembly, that proposes to extend the criminal and civil statute of limitations for child sex abuse by five years, and to open a one-year window during which past child sex abuse victims can sue despite the fact that the civil statute of limitations otherwise would have expired. Hamilton responds to the objections that two prominent foes of the bill -- the New York Civil Liberties Union, and the Catholic League for Religious and Civil Liberties -- have raised. In particular, she focuses on their arguments that child abuse allegations may be fabricated, and that there is typically little evidence for such claims other than the accuser's say-so. In response, Hamilton points to the scant number of such claims to have been proven false, and notes that corroborating evidence can often be found in third-party evidence of the psychological and other damage the accuser suffered after the abuse, and in the records kept by the institution (often, the church) to which the abuse was reported at the time. Thursday, March 19, 2009

SHERRY F. COLB

The Perils of Eyewitness Identification: A Personal Account

FindLaw columnist and Cornell law professor Sherry Colb comments on recent concerns with eyewitness identification, drawing upon both her personal and professional experience. As the past victim of an armed robbery, Colb was able to identify her attacker out of a lineup with confidence, and he was eventually convicted. Yet as a law professor, Colb notes both that eyewitness identification can be unreliable, and that there are methods to improve its reliability -- including the use of multiple lineups and clear instructions to victims stressing that the perpetrators of their crimes may not appear in any lineup they see. In addition, Colb discusses the work of Iowa State's Gary Wells, who studies eyewitness identification, and comments on his online test -- which readers may want to take, and from which they may learn firsthand about the difficulties of such identification. Wednesday, March 18, 2009

ANTHONY J. SEBOK

The Day after Levine: Analyzing the Supreme Court's Recent Ruling that FDA Approval of Label Warnings Does Not Preempt State Tort Law

FindLaw columnist and Cardozo law professor Anthony Sebok discusses the recent, highly significant Supreme Court decision in Wyeth v. Levine. In Levine, a Vermont jury awarded high damages to a woman who had to have her arm amputated after a certain kind of injection ("IV push") of a pharmaceutical company's drug. The company, however, argued that the legal claims that led to the jury award were effectively extinguished by the fact that the FDA-approved warning label for the drug did not prohibit the type of injection at issue. The Supreme Court held for the woman, and against the pharmaceutical company. Was it right to do so? And what are the implications of, and possible future limits of, the holding? Sebok explains the different kinds of arguments offered in favor of federal preemption, comments on the Court majority's reasoning, and describes an important decision from the U.S. Court of Appeals for the Third Circuit that may now need to be altered. Tuesday, March 17, 2009

JULIE HILDEN

How Easily Should Defamation Plaintiffs Be Able to Find Out the Identities of Anonymous Online Speakers From Internet Service Providers? The Maryland Court of Appeals Offers an Answer, But Ultimately, A Federal Resolution Is Needed

FindLaw columnist, attorney, and author Julie Hilden comments on a significant recent decision relating to defamation law from Maryland's highest court. As Hilden explains, the Maryland decision summarizes four different possible standards regarding the point in a defamation suit when the plaintiff can force an Internet Service Provider (ISP) to reveal the identity of an anonymous defendant whose online post is challenged. Hilden praises the Maryland court for choosing a sensible solution that neither asks the impossible of the plaintiff, nor automatically reveals the anonymous defendant's identity. However, she also calls for this issue to be resolved nationwide via a federal statute, in light of the Internet's national character and accessibility, rather than being resolved state by state in a host of different ways. Monday, March 16, 2009

MARCI A. HAMILTON

Getting Justice for "Justice Denied: What America Must Do to Protect Its Children": A Response to Martin and Melissa Nussbaum's Indefensible Review of My Book on Preventing Child Sex Abuse Within Religious Institutions and Outside Them

FindLaw columnist and Cardozo law professor Marci Hamilton takes very strong issue with a recent review of her book advocating legal reform in the wake of the Catholic Church clergy abuse scandal and of reports of widespread child sexual abuse in both religious and secular contexts. Hamilton recounts and responds to specific charges by the review's authors, Martin and Melinda Nussbaum -- focusing in particular on the subject of the efforts, which Hamilton strongly supports, to create statute-of-limitations "windows" during which abuse survivors can bring claims. Friday, March 13, 2009

VIKRAM DAVID AMAR AND MICHAEL SCHAPS

The Proposal to End Gubernatorial Appointments of Replacement Senators: Reform In This Area May Be Needed, But the Feingold Constitutional Amendment Needs More Thought

FindLaw columnist and U.C., Davis, law professor Vikram Amar and FindLaw guest columnist and attorney Michael Schaps comment on Senator Russ Feingold's proposal to amend the U.S. Constitution to end gubernatorial appointments of replacement senators. Amar and Schaps contend that Feingold is absolutely right about the need to change the process of filling senatorial vacancies -- a process famously abused by Rod Blagojevich, and also controversial in several other cases as well. However, after discussing the relevant constitutional history and other considerations, Amar and Schaps suggest that a statute would be a better remedy for the abuses and issues that have plagued the replacement process, than a constitutional amendment. Friday, March 13, 2009

EDWARD LAZARUS

Why the Tenth Amendment "Nullification" Arguments Against the Stimulus Bill Are Sheer Folly – and Why It's Disturbing that So Many Years After the Civil War, They Are Still Being Raised

FindLaw 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. Thursday, March 12, 2009

JOANNE MARINER

The Global Impact of U.S. "War on Terror" Abuses

FindLaw columnist and human rights attorney Joanne Mariner argues that the Bush Administration's legacy of human rights abuses during the "war on terror" -- such as instances of torture, enforced disappearances, arbitrary detention, and unfair trials -- will continue to haunt the U.S. even as the Obama Administration alters many prior Bush Administration policies. She notes that many of these abuses were perpetrated in coordination with other countries, and that the U.S. set a negative example for countries that were able to point to abusive U.S. practices in an attempt to excuse their own. Mariner poses the question of how the Obama Administration can not only rewrite past policies, but also counteract their continuing global influence on America's reputation and human rights worldwide. Wednesday, March 11, 2009

DOUGLAS W. KMIEC

How the California Supreme Court's Proposition 8 Ruling Can Vindicate Both Equality and Religious Freedom: Part Two in a Two-Part Series of Columns

FindLaw columnist and Pepperdine law professor Douglas Kmiec continues his two-part series of columns on the California Supreme Court case challenging the validity of Proposition 8. (As readers may be aware, Proposition 8 is the California initiative that purported to reinstitute the state's ban on gay marriage after the California Supreme Court had overruled it as unconstitutional.) Kmiec contends that the Court can and should both uphold the technical language of Proposition 8 and forbid state-sponsored discrimination in marriage by restricting the State of California to granting "espousals" on equal terms to straight and gay couples alike, while leaving "marriages" to private religious institutions and communities to perform. Tuesday, March 10, 2009

DOUGLAS W. KMIEC

The California Supreme Court Hearing on the Validity of Proposition 8, the Initiative Banning Gay Marriage: How the Case Implicates the Very Purpose of a Constitution, the Rule of Law, and Human Liberty Itself: Part One in a Two-Part Series of Columns

FindLaw guest columnist and Pepperdine law professor Douglas Kmiec discusses the recent, historic hearing before the California Supreme Court regarding the validity of California's Proposition 8, passed as an initiative by voters last November. Prior to Proposition 8's passage, the California Supreme Court had found a right to equal marriage, for straight and gay couples alike, within the California Constitution. Proposition 8 purports to take away that right, but did it do so effectively? Kmiec comments on the arguments raised at the hearing regarding that question. Monday, March 9, 2009

MICHAEL C. DORF

Do the Supreme Court's Current Justices Hold Sincere Views About States' Rights? A Failure-to-Warn Case Reveals an Apparent Inconsistency

FindLaw columnist and Cornell law professor Michael Dorf examines some evidence -- including the Supreme Court's recent decision in Wyeth v. Levine, a major case on whether federal law preempts state law -- that may indicate that the Justices are ultimately driven by results, not legal reasoning. Dorf's argument is based in part on two observations: First, the Justices who tend to be most sympathetic to states’ rights claims when the issue is the scope of congressional power tend also to favor a broad view of federal preemption, even though preemption displaces state law with federal law. Second, the Justices who take a broad view of congressional power tend to take a narrow view of preemption. In light of these inconsistencies, he asks, is the best explanation for the Justices' votes simply their policy preferences? Monday, March 9, 2009

JOHN W. DEAN

Beyond the Pale: The Newly-Released, Indefensible Office of Legal Counsel Terror Memos

FindLaw columnist and former counsel to the president John Dean discusses the Obama Department of Justice's release of seven memos written by the Bush Office of Legal Counsel (OLC) in the wake of the 9/11 terrorist attacks -- as well as of two more Bush OLC memos, from late 2008 and early 2009, which disavowed the seven earlier memos. Dean contends that the reasoning behind the seven post-9/11 memos was misleading, and that the arguments they presented were deceptive. Dean sharply criticizes the memos' lead attorney, John Yoo, arguing that his work seriously tarnished the previously high reputation of OLC. Dean takes Yoo's work to task as being intellectually dishonest -- noting that it has drawn harsh criticism not only from liberals and moderates, but also from Yoo's fellow conservatives, including former OLC head Jack Goldsmith. Dean notes that a report about the memos by the Department of Justice's Office of Professional Responsibility is thought to be imminent. Friday, March 6, 2009

MARCI A. HAMILTON

Pleasant Grove City v. Summum: The Supreme Court's Puzzling, Fascinating New Free Speech Decision

FindLaw columnist and Cardozo law professor Marci Hamilton discusses the Supreme Court's recent decision holding that Pleasant Grove City, Utah, was not constitutionally required to display in one of its public parks a monument that the Summum religious group offered to donate. As Hamilton explains, the monument honored the group's beliefs, The Seven Aphorisms, and part of the basis for the challenge was the fact that a Ten Commandments monument was already in place at the park. As Hamilton explains, though the Justices reached a unanimous result, they did not agree on the reasoning behind that result -- in part because the case involved three complex strands of doctrine and precedent. Thursday, March 5, 2009

SHERRY F. COLB

An Empty Gesture to Soothe the Conscience: Why We Pass Laws Protecting Chimpanzees And Other Animals from Cruelty

FindLaw columnist and Cornell law professor Sherry Colb questions the motivations behind purportedly pro-animal legislation -- such as California's Proposition 2, which will require larger cages for animals beginning in 2015; and the "Captive Primate Safety Act," recently passed by the House, which would, if it becomes law, outlaw the interstate transportation of nonhuman primates in the wake of the Connecticut chimpanzee-mauling incident. More specifically, Colb asks whether such laws really spring from empathy for animals, as some theorists argue, or whether they simply make consumers feel better about the limits on their empathy which allow them to continue to eat animals and use animal products. In support of her thesis, Colb notes that Proposition 2 has drawn advocates even within the industries it will regulate. Wednesday, March 4, 2009

JOANNA L. GROSSMAN

Sex-Stereotyping and Dress Codes Under Title VII: Why Courts Can't Get it Right

FindLaw columnist, Hofstra law professor, and visiting Vanderbilt law professor Joanna Grossman discusses a series of cases decided after the U.S. Supreme Court ruled, in Price Waterhouse v. Hopkins, that employers cannot penalize employees for failure to conform to gender stereotypes. As Grossman explains, courts have carved out exceptions to this principle to allow sex-specific dress codes -- including even those forcing women to adopt a highly-sexualized appearance -- but it's unclear what, if any, basis there is for the exceptions. Grossman focuses, in particular, on a case where the court acknowledged that men could not be punished for having a feminine appearance, yet still upheld a grooming policy as applied to a biologically male transsexual. Tuesday, March 3, 2009

JULIE HILDEN

The Defamation Lawsuit Against One of the "Freakonomics" Authors: Analyzing the U.S. Court of Appeals for the Seventh Circuit's Decision

FindLaw columnist, attorney, and author Julie Hilden discusses the recent decision by a panel of the U.S. Court of Appeals for the Seventh Circuit regarding the defamation lawsuit that arose out of the best-selling book "Freakonomics," which introduced the public to innovative and counterintuitive theories within economics. The lawsuit was brought by economist John Lott against fellow economist and "Freakonomics" co-author Steven D. Levitt. As Hilden explains, the Seventh Circuit decision raises issues such as when a defamation case can be based on the defendant's mere repetition of others' allegations, and what, precisely, it means to say that one academic has tried to "replicate" another academic's results. Monday, March 2, 2009

VIKRAM DAVID AMAR & WHITNEY E. CLARK

If California Voters Approve the Legislature's Proposed "Top Two Candidates Open Primary Act," Will It Survive a Likely Constitutional Challenge?

FindLaw columnist and U.C., Davis, law professor Vikram Amar and FindLaw guest columnist and U.C., Hastings, third-year law student Whitney E. Clark discuss a new California initiative called “the Top Two Candidates Open Primary Act." If approved by voters, the Act would amend the California Constitution as follows: It would mandate a single primary election in which all voters participate and may select any candidate, regardless of the voters’ or candidates’ party identities (if any). For each office, only the top two vote-getters in the primary would advance to the general election ballot, and both would advance even if both identified themselves with the same party. Amar and Clark identify two possible constitutional challenges to the initiative, and assess the merits of each based upon recent, relevant Supreme Court precedents. Friday, Feb. 27, 2009

EDWARD LAZARUS

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

FindLaw 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. Thursday, Feb. 26, 2009

JOANNE MARINER

Obama's War on Terror

FindLaw columnist and human rights attorney Joanne Mariner argues that the Obama Administration will be making a grave error if it adopts the Bush Administration's "war on terror" paradigm -- as statements by Attorney General Eric Holder and the Obama Administration's recent federal court submissions suggest that it may. In the federal court submissions, Mariner explains, the Obama Administration has continued the Bush Administration's stance of deeming two businessmen who were detained abroad in countries friendly to the U.S., far from any battlefield, "enemy combatants" and insisting that the federal courts have no jurisdiction over the men, and that they may be held indefinitely in Afghanistan without trial. In support of her contention that the war paradigm is the wrong one to use, Mariner cites and analyzes a recent report by a prominent group of international jurists. Wednesday, Feb. 25, 2009

ANITA RAMASASTRY

Facebook Follies: Why Facebook's Recent Change to its User Agreement Was A Bad Move, and Will Likely Be Unenforceable

FindLaw columnist and U. Washington law professor Anita Ramasastry discusses the legal issues raised by Facebook's controversial recent attempt to change its Terms of Service. As she explains, Facebook angered many of its users by purporting to reserve the right to use their content forever -- even if they were to delete it, or leave the site -- and by failing to provide users with direct notice of that change. Drawing upon recent lawsuits and FTC actions involving other companies that tried to change their Terms of Service in problematic ways, Ramasastry argues that the Electronic Privacy Information Center is likely correct when it contends that Facebook ran afoul of the law, as interpreted by the Federal Trade Commission. Tuesday, Feb. 24, 2009

ANTHONY J. SEBOK

The Recent, Eight-Million-Dollar Verdict Against Philip Morris and in Favor of A Smoker's Family: Why It Will Likely Be Reversed as Unconstitutional

FindLaw columnist and Cardozo law professor Anthony Sebok explains a potentially very serious defect in a large recent verdict against Philip Morris -- a defect that, if Sebok is correct, would also be shared by the planned proceedings in thousands of parallel cases. As Sebok explained, the problem is related to the Florida Supreme Court's decision to allow the plaintiffs in these cases to rely upon fact findings that had occurred in the earlier, class action stage of the case. These fact findings, Sebok notes, failed to include findings regarding particular fraudulent statements or omissions by Philip Morris. Given the lack of such particularity, Sebok predicts, judgments in the individual cases that rely on these fact findings will ultimately be deemed invalid. Tuesday, Feb. 24, 2009

MICHAEL C. DORF

Can Anyone Protect Clients From Bad Lawyering? Some Lessons of a Recent Appeals Court Case

FindLaw columnist and Cornell law professor Michael Dorf proposes some interesting new approaches to the question of how clients can tell if their lawyers are good or bad, and thus protect themselves from malpractice or, short of malpractice, poor lawyering. Dorf begins by discussing a recent case in which Judge Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit castigated two attorneys who decided to file an appeal in a criminal case even though it was likely to lengthen -- not shorten -- their clients' sentences. He then goes on to consider the problems with the billable-hour and contingency-fee systems, respectively and to suggest borrowing from sports' teams "outcome measures" to improve our ability to assess lawyer quality -- on the theory that just as there are sophisticated ways to measure whether a player is truly earning his or her salary, so too there can be more sophisticated ways to assess if a lawyer is truly earning his or her fee. Monday, Feb. 23, 2009

JOHN W. DEAN

The History Behind the Film and Play "Frost/Nixon": How David Frost Really Convinced Richard Nixon to Talk

FindLaw columnist and former counsel to the president John Dean explains the actual historical context behind the film and play "Frost/Nixon," which tell the story of British journalist David Frost's bombshell interview with disgraced ex-president Richard Nixon in the wake of Watergate. Dean also presents a revealing Q &A with Eli Chesen, author of the 1974 book President Nixon's Psychiatric Profile. As Dean explains, Chesen possesses special insight into Frost's interviews because Chesen had a number of off-the-record conversations with one of the people who prepared Frost, James Reston Jr., prior to the interviews. Thus, Chesen may well have played a key role in ensuring that the interviews served their intended purpose of effectively confronting Nixon with his crimes. Friday, Feb. 20, 2009

MARCI A. HAMILTON

Why British Authorities Made an Error When They Refused Entry to Dutch Legislator Geert Wilders, Based on His Extremist Views on Islam and Terrorism

FindLaw columnist and Cardozo law professor Marci Hamilton takes strong issue with the British government's decision to bar Dutch legislator Geert Wilders from entering Britain, based on his extremist views regarding Islam. Britain says Wilders's presence poses a threat to public safety; Hamilton criticizes this rationale as, in effect, allowing a heckler's veto as to Wilders, because his views will anger and offend many British readers and listeners. Hamilton explains the limits of the "heckler's veto" under United States law and the First Amendment. She also raises another problem with Britain's decision: It tends to entangle government and religion, for the government is protecting a particular religion and its adherents from a critic who, while his views are deeply offensive and inaccurate, should have the right to be heard. Thursday, Feb. 19, 2009

SHERRY F. COLB

Miguel Tejada's Guilty Plea: What's Wrong With Prosecuting Dopers for Lying?

FindLaw columnist and Cornell law professor Sherry Colb argues that we should be troubled by the federal charges brought against Baltimore Orioles shortstop Miguel Tejada for lying to congressional investigators about the use of performance-enhancing drugs in baseball. Colb argues that society pays a steep cost when underlying charges -- such as here, a charge of the use of performance-enhancing drugs -- cannot be proven, and as a result, investigators and prosecutors decide to bring only false statements charges arising from their own interrogation of suspects. For instance, Colb notes that if the pattern that occurred with Tejada (who pled guilty to the false statements charges) repeats itself over and over in the context of steroids and baseball, we may be left forever ignorant about the true nature and extent of the use of such drugs within the sport. Colb also takes on the more general issues of pretextual conduct by the government -- that is, conduct where the justification cited is not the real justification -- and of government entrapment, where the government involves itself in inducing the offense. Wednesday, Feb. 18, 2009

VIKRAM DAVID AMAR AND ALAN BROWNSTEIN

The Navajo Nation Case, Which the Supreme Court May Soon Review, and How It Reveals the Complex Balance Envisioned by the Religious Freedom Restoration Act

FindLaw columnist Vikram Amar and FindLaw guest columnist Alan Brownstein -- both U.C., Davis, law professors -- discuss an interesting case that the Supreme Court may soon review, which involves the interpretation of a federal statute protecting the right to practice one's religion. The case arose when the government allowed artificial snow, including small amounts of human waste, to be placed on the ski slopes of a mountain where Native Americans worship. The Native Americans contended that using the "dirty" snow desecrated their sacred areas. An en banc panel of the U.S. Court of Appeals for the Ninth Circuit ruled in the government's favor, but Amar and Brownstein argue that the panel's test sets too high a threshold -- and will tend to exclude legitimate claims by religious groups. Tuesday, Feb. 17, 2009

JOANNA L. GROSSMAN

The Lilly Ledbetter Fair Pay Act of 2009: President Obama's First Signed Bill Restores Essential Protection Against Pay Discrimination

FindLaw columnist, Hofstra law professor, and visiting Vanderbilt law professor Joanna Grossman discusses the first bill that President Obama has signed into law; Grossman attended the signing as the co-author of an amicus brief in the case. As Grossman explains, the new law reverses the effect of a prior Supreme Court ruling that had held that women could not challenge pay discrimination based on sex unless they discovered it soon after receiving the first paycheck that was affected -- meaning that twenty- or thirty-year-old discrimination could persist with no remedy. Grossman explains the new law, the Supreme Court decision it overruled, and why the law -- though it will help women nationwide -- ironically will be unable to assist the woman for whom it is named. Friday, Feb. 13, 2009

EDWARD LAZARUS

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

FindLaw 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. Thursday, Feb. 12, 2009

JOANNE MARINER

Some Benchmarks for Measuring Reform

FindLaw columnist and human rights attorney Joanne Mariner discusses early Obama Administration counterterrorism stances -- giving examples of instances in which the President and his staff have, and in one case have not, diverged from Bush Administration precedents. More specifically, Mariner praises the Obama Administration's progress on Guantanamo, but criticizes its adherence to the Bush Administration's views on the state secrets privilege in a recent case that is now on appeal. She also offers a set of key benchmarks by which, she argues, the Obama Administration's initial progress should be judged -- each involving the fates and legal rights of detainees at Guantanamo and elsewhere. Wednesday, Feb. 11, 2009

ANTHONY J. SEBOK

When President Obama Turns His Attention to Health Care Reform, To What Extent Should He Focus on Medical Malpractice Liability? Part One in a Two-Part Series of Columns

In a two-part series of columns, FindLaw columnist and Cardozo law professor Anthony Sebok will discuss the considerations that President Obama may want to take into account when he eventually turns his focus to health care reform. In this column, Part One in the series, Sebok -- citing a Harvard Medical School study -- debunks several myths concerning our medical malpractice liability system. One is the claim that medical malpractice liability costs are largely to blame for the increase in health care costs generally; another is the claim that our tort system does a poor job of figuring out whether malpractice has occurred, and, if it did occur, valuing the damages that the victim of the malpractice has suffered. Putting these myths aside, Sebok offers an overview of the true state of the medical malpractice liability system. Tuesday, Feb. 10, 2009

MICHAEL C. DORF

When is Special Treatment Unequal Treatment? Reflections on Tim Geithner, Michael Phelps, and Rod Blagojevich

FindLaw columnist and Cornell law professor Michael Dorf examines whether recent events involving three famous people's acts truly represent instances of unequal treatment for them, as compared to the treatment ordinary people would have received, as some have claimed. Specifically, Dorf analyzes the controversies over Treasury Secretary Tim Geithner's admitted nonpayment of taxes, Olympic swimmer Michael Phelps's admitted use of marijuana, and former Illinois Governor Rod Blagojevich's alleged scheme to trade money for political favors, which led to his impeachment. Dorf cautions that, in comparing the acts and fates of prominent persons and ordinary persons, it is important to take not only the context of the acts, but also the context of the lives as a whole into account. Monday, Feb. 9, 2009

JOHN W. DEAN

Karl Rove Is Betting He Can Avoid Publicly Disclosing His Role In the Bush Administration's Firing Of Independent-Minded U. S. Attorneys—But He May Be Wrong

FindLaw columnist and former counsel to the president John Dean explains the current situation regarding Karl Rove, President Bush's former adviser, and the pending and past Congressional subpoenas seeking Rove's testimony with respect to the scandal over the Bush Administration's political firings of a series of U.S. Attorneys. With both the Senate Judiciary Committee and Special Counsel Nora Dannehy actively investigating the firings, Dean explains, the issue is still a live one. Dean considers the reasons why Rove would cooperate with the grand jury Dannehy has convened, but not with the Judiciary Committee, and explains how the controversy over whether Rove had a role in the firings, and whether he must testify before Congress, may ultimately play out. Friday, Feb. 6, 2009

MARCI A. HAMILTON

The Federal Investigation into the Catholic Church's Los Angeles Archdiocese Based on Allegations of a Coverup of Child Sex Abuse: Why the Grand Jury Probe Should Be Welcomed, Not Criticized

FindLaw columnist and Cardozo law professor Marci Hamilton argues that the Los Angeles U.S. Attorney's Office's investigation into the city's archdiocese -- for alleged involvement in a cover-up of child sex abuse by priests -- is the right step to take. Whereas others have argued that the Archdiocese's civil settlements with hundreds of victims should make criminal charges unnecessary, Hamilton argues that criminal charges are still vital. She cites, for instance, the scant information that has reached the public about the charges, despite a promise of disclosure by the Archdiocese, and strong evidence that the Church -- and in particular, the Los Angeles Archdiocese -- has not abided by its touted "zero tolerance" policy for abusers. Thursday, Feb. 5, 2009

SHERRY F. COLB

Can Religious Faith Justify Reckless Homicide? A Wisconsin Prosecution Raises Larger Issues

FindLaw columnist and Cornell law professor Sherry Colb considers how society should think about and address issues such as those raised by the death, last year, of eleven-year-old Kara Neumann. Kara died in great pain as the result of untreated diabetes, because her parents -- believers in faith-healing -- did not consult a doctor. Colb notes that a judge' s decision, last month, to reject Kara's parents' religious freedom claim was based on well-settled law. However, she goes on to tackle broader and more controversial related questions: How should the law address anti-social behavior that is motivated by religious faith? In particular, how should criminal law conceptualize the state of mind of defendants like Kara's parents? Wednesday, Feb. 4, 2009

CARL TOBIAS

How President Obama Can Set a Key Example, and Send an Important Message, By Filling the Nation's Most Protracted Judicial Vacancy

FindLaw guest columnist and U. Richmond law professor Carl Tobias argues that President Obama should actively honor his commitment to bipartisanship when it comes to choosing nominees to the federal judiciary -- for instance, by consulting with home-state Senators, of both parties, before a nominee is chosen. To support his point, Tobias focuses on a particularly egregious instance in which partisan clashes have undermined the administration of justice: A seat on the U.S. Court of Appeals for the Fourth Circuit has sat vacant for a shocking fourteen years now, through both the Clinton and George W. Bush Administrations. Tobias explains in detail how this could have happened, describes the toll such vacancies take on a federal appeals court, and suggests how President Obama can ensure this never happens again. Wednesday, Feb. 4, 2009

JOANNA GROSSMAN & DEBORAH BRAKE

The Supreme Court Restores Title VII's Protection Against Retaliation, but Employees Still Face Gaps in Retaliation Law

FindLaw columnist and Hofstra law professor Joanna Grossman and FindLaw guest columnist and U. Pittsburgh law professor Deborah Brake comment on a recent, significant, unanimous Supreme Court decision in the area of employment discrimination. As Grossman and Brake explain, the Court held that when an employee conducts an internal investigation of sexual harassment charges, employees who participate (but have not themselves brought complaints) are protected from retaliation from their employer based on the evidence they provide. Grossman and Brake argue that the Court's decision is clearly correct, but also explain how the Court, by invoking a separate legal provision, could more fully protect employees in the future. Tuesday, Feb. 3, 2009

JULIE HILDEN

Five Key Suggestions to Help Summer Associates Get Offers from Their Firms in a Difficult Economy

FindLaw columnist, attorney, and author Julie Hilden offers advice to the summer associates of 2009 on how to get offers from their firms, despite the ongoing recession and increasing competition. With summer associate offers now far from automatic, those seeking to receive them must stand out, Hilden argues. She suggests a number of strategies for doing so -- addressing topics ranging from how to find allies at the firm, to how to make a wise choice among legal subfields, to how to improve the quality of one's writing and research. Monday, Feb. 2, 2009

VIKRAM DAVID AMAR

The Supreme Court's Grant of Review in Redding v. Safford -- a Fourth Amendment Case Involving a Search of a Middle-School Student for Drugs: A Chance for the Court to Show Reasonableness Review Has Teeth

When do public schools go too far in searching their students, and thus violate the Fourth Amendment? FindLaw columnist and U.C., Davis, law professor Vikram Amar comments on this issue in the context of a case in which the Supreme Court recently decided to grant review. There, a school searched a female middle-school student, suspecting she might possess high-dose, prescription-only ibuprofen; the search, although conducted by female personnel, was somewhat invasive. Amar puts the case in the context of prior Supreme Court court public-school Fourth Amendment cases -- one of which he suggests was wrongly decided. Friday, Jan. 30, 2009

ANITA RAMASASTRY

A Court Holds that When a Company Breaks Its Promise to Keep Information Safe, It Cannot Be Sued: The Right Result, but One that Suggests the Need to Change the Law

FindLaw columnist and U. Washington law professor Anita Ramasastry discusses a Louisiana court's recent ruling rejecting a woman's claims for damages based on allegations that the company that had done her taxes violated its own privacy policy by allowing her returns to end up in a publicly-accessible dumpster. As Ramasastry explains, the judge's ruling reflected current law, which limits damages for such breaches to monetary damages, and excludes the money spent by the plaintiff to monitor credit reports for identity theft in the wake of the breach. However, Ramasastry contends that this and other, similar cases suggest a strong need for the law to be revised to offer remedies to plaintiffs -- or trigger stricter penalties from federal agencies -- when a company breaks its own promises, putting customers'privacy and credit at risk. Friday, Jan. 30, 2009

EDWARD LAZARUS

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?

FindLaw 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. Thursday, Jan. 29, 2009

JOANNE MARINER

Obama's First Steps on Guantanamo

FindLaw columnist and human rights attorney Joanne Mariner takes stock of President Obama's actions, thus far, with regard to the detention center at Guantanamo Bay and related issues. She notes that, within days of taking office, Obama had shut down military commission proceedings and issued four relevant executive orders, and she explains why these actions represented a dramatic break from Bush Administration precedent. Yet she notes areas in which Obama has been more cautious -- judiciously emphasizing review and analysis, rather than immediate action. Mariner also explains why, as yet, it is not clear what will happen to those detainees who are not released, transferred abroad, or tried. Nor is it yet absolutely certain that the only trial proceedings for detainees will be in the federal courts, or that extraordinary rendition will end. Wednesday, Jan. 28, 2009

ANTHONY J. SEBOK

The District Court Decision in the Remaining 9/11 Litigation: Why Judge Hellerstein Was Wise to Dismiss Some of the Property Damage Claims

FindLaw columnist and Cardozo law professor Anthony Sebok discusses an interesting ruling, issued last week by federal judge Alvin Hellerstein, in cases arising from the 9/11 attacks. As Sebok explains, the judge's decision concerns certain claims for property damage incurred on 9/11 by the owner of the World Trade Center. These claims were based on the theory that if American Airlines had more rapidly reported the hijacking of its own plane, which hit Tower One, then it might have allowed the government to shoot down United Airlines' plane before that plane hit Tower Two. However, there was only a six-minute delay from when American learned of its own hijacking, and when the FAA learned of it. Judge Hellerstein thus declined to send the causation issue to a jury, and alternatively, held that on 9/11, it was not foreseeable that a series of planes would be hijacked by terrorists on the same day. Tuesday, Jan. 27, 2009

MICHAEL C. DORF

When Did Barack Obama Officially Become Eligible to Act as President? What the Oath "Do-Over" Reveals About Legal Interpretation

FindLaw columnist and Cornell law professor Michael Dorf discusses the now-famous do-over of the Presidential oath that was taken by Barack Obama, and administered by the Supreme Court's Chief Justice, John Roberts. Dorf addresses the question of the validity of the presidential actions Obama took before the do-over -- specifically, the signing of two executive orders. In addition, he considers the deeper meaning of the oath controversy, as a window into the interpretive difference between textualists, who focus on the letter of the law, and those who look to the law's (or in this case, the oath's) spirit and purpose. Monday, Jan. 26, 2009

JOHN W. DEAN

Legal Jeopardy For American Torturers Here and Abroad? A Q & A Session With An Expert on the Issue, Philippe Sands

In light of persuasive evidence of former Bush Administration officials' complicity in detainees' torture, John W. Dean, a FindLaw columnist and former counsel to the president, considers whether that complicity will be punished -- either by American prosecutions initiated by the Obama Administration, or through prosecutions abroad, particularly if suspects travel outside the country. In explaining how the situation may unfold, Dean draws on his Q & A with Philippe Sands, the author of the book "Torture Team: Rumsfeld's Memo and the Betrayal of American Values." Sands, a British professor specializing in international law, explains the legal basis upon which other countries may take action against former U.S. officials based upon evidence of their role in torturing detainees. Friday, Jan. 23, 2009

MARCI A. HAMILTON

Reflections Upon President Obama's Inaugural Address

FindLaw columnist and Cardozo law professor Marci Hamilton comments on the descriptions of our constitutional history given by President Barack Obama in his inaugural address. In particular, Hamilton notes that -- rather than castigating the Framers of the Constitution for their decision to accept slavery and to count each African slave as only three-fifths of a person for representation purposes -- Obama focused upon the greater ideals the Framers embraced, which allowed him to send a unifying message to Americans. Hamilton also notes that Obama's address took seriously the Constitution's separation of church and state by recognizing not only the adherents of four major American religions, but also nonbelievers. Thursday, Jan. 22, 2009

SHERRY F. COLB

How Far Does Police "Good Faith" Go? The Supreme Court Creates Another Exception to The Exclusionary Rule

FindLaw columnist and Cornell law professor Sherry Colb discusses the Supreme Court's recent decision in United States v. Herring. There, the Court held that the results of a search could still be admitted into evidence, despite the fact that one police department had mistakenly told another that the person who was searched was the subject of an outstanding warrant. In fact, there was no outstanding warrant against him. Colb argues that the Court was wrong not to apply the "exclusionary rule" -- which prevents the fruits of unconstitutional searches from being admitted into evidence -- in this situation. In addition, she explains why this ruling goes significantly beyond past rulings that declined to apply the exclusionary rule when the mistake was made by someone within the judicial branch, such as a court clerk or magistrate. Wednesday, Jan. 21, 2009

JOANNA GROSSMAN

Separate is Not Equal, According to the New Jersey Civil Union Review Commission:The Implications of Its Findings that the Civil Union Alternative "Invites and Encourages Unequal Treatment"

FindLaw columnist, Vanderbilt visiting law professor, and Hofstra law professor Joanna Grossman discusses a recent development regarding same-sex marriage in New Jersey. In 2006, the New Jersey Supreme Court had held that same-sex couples were entitled to the benefits -- but not the name -- of marriage. Subsequently, the New Jersey legislature enacted a civil union law. Now, however, a New Jersey commission on the subject has concluded that the civil union status -- far from providing the same benefits as marriage -- actually "invites and encourages unequal treatment of same-sex couples and their children." Grossman considers the possible consequences of this finding for New Jersey, and places it in the context of other states' same-sex marriage issues as well. Tuesday, Jan. 20, 2009

VIKRAM DAVID AMAR

The Senate's Decision to Seat Roland Burris: Some of the Legal Issues the Controversy Raised, and a Lesson It Should Teach Us

FindLaw columnist and U.C., Davis, law professor Vikram Amar explains the legal context of the controversy over whether the Senate should seat Roland Burris, despite the fact that Burris was nominated by Illinois Governor Rod Blagojevich. Blagojevich is facing a federal indictment claiming he tried to gain favors in exchange for the Senate seat. No one is suggesting that Burris was involved in any criminal activity, such as paying for the seat, but other potential candidates may have been excluded because they would not "pay to play." Moreover, Blagojevich -- in addition to having been indicted -- has been impeached (but not yet convicted or removed) by the Illinois legislature, and the Senate has some constitutional power to police whom it will seat. Amar explains how all these factors intersect, and offers a lesson the controversy should teach us for the future. Friday, Jan. 16, 2009

MARCI A. HAMILTON

What Does It Mean, in 2009, to Be a Political or Judicial Conservative? In the Midst of a National Paradigm Shift, Defining the Term Is Increasingly Challenging

FindLaw columnist and Cardozo law professor Marci Hamilton considers the changing definition of "conservative" within the arenas of both politics and law. In politics, Hamilton points out the striking diversity of viewpoints among the sets of people who all claim the label "conservative." Meanwhile, on the Supreme Court, Hamilton questions how strongly conservative the right wing of the Court can truly be, when it has largely preserved abortion rights, and when swing justice Anthony Kennedy has authored two landmark pro-gay-rights opinions. She also notes that it is no longer the case that the Court's federalism divides the Justices neatly along political lines; to the contrary, a recent case about the "presumption against preemption" illustrated that states' rights federalism and judicial conservatism can no longer be equated. Thursday, Jan. 15, 2009

JOANNE MARINER

Not Just Guantanamo

FindLaw columnist and human rights attorney Joanne Mariner applauds President-elect Obama's decision to close Guantanamo on his first full day in office, but cautions that one key issue that Guantanamo raised -- the indefinite detention of persons without charge, and without trial -- will not be resolved by its closure. Indeed, in Afghanistan, Mariner notes, hundreds of detainees are being held at the Bagram Air Force Base, some for years, and all without access to attorneys. Mariner focuses, in particular, on Haji Wazir, one of the petitioners in a case before the federal district court in Washington, D.C. The evidence suggests that Wazir was "disappeared" by the CIA; eventually, he was held incommunicado at Bagram, despite his family's attempts to reach him. The case in which he is a petitioner challenges the Bagram detentions and seeks to invoke the writ of habeas corpus. Yet Mariner notes that there is a risk, based on a recent Supreme Court decision, that even though the petitioners are in U.S. custody, the Court may decide they are beyond the reach of the Great Writ. Mariner argues that, like the Guantanamo detainees before them, the Bagram detainees should have access to the writ of habeas corpus, and that their indefinite detentions should be supplanted by fair federal-court trials. Wednesday, Jan. 14, 2009

ANTHONY J. SEBOK

The California Supreme Court Holds that Good Samaritans Providing Nonmedical Aid Can Be Held Liable If They Act Negligently

FindLaw columnist and Cardozo law professor Anthony Sebok discusses a recent, significant decision by the California Supreme Court holding that, despite the state's Good Samaritan law, a person who provides nonmedical aid -- such as pulling someone out of a car -- at the scene of an accident can still be held liable for injuries that result from that aid. Sebok explains the points of view of both the majority and the dissenters, and considers from a societal perspective what the ideal rule should be in Good Samaritan situations: Should that rule protect the provision by Good Samaritans of medical aid, nonmedical aid, both, or neither? Tuesday, Jan. 13, 2009

MICHAEL C. DORF

All the President’s IMs: Are Federal Record-keeping Laws Out of Step With Modern Communications?

FindLaw columnist and Cornell law professor Michael Dorf discusses the roots of President-elect Obama's well-known reluctance to give up his Blackberry when he takes office. In particular, Dorf describes the 1978 law -- the Presidential Records Act (PRA) -- that has caused Obama's advisors to strongly recommend that he do so. Dorf notes that, even apart from the PRA, security concerns may counsel against Obama's keeping his Blackberry, and considers whether, if those security concerns could be addressed, the PRA should be amended to exempt certain electronic communications. Dorf also notes a complicating factor here: Executive orders by former Presidents Reagan and George W. Bush purport to limit the PRA's scope, but Obama may well reverse or alter those orders -- thus putting a broader set of his own Blackberry communications in play. Monday, Jan. 12, 2009

ANITA RAMASASTRY

The Recent Defamation Lawsuit Targeting a Posting on the Consumer Review Site Yelp.com: Will It Succeed?

FindLaw columnist and U. Washington law professor Anita Ramasastry considers a recent California lawsuit that challenges, as defamatory, a review on Yelp.com that criticized a chiropractor's billing practices. Ramasastry explains that, in California and other states with "anti-SLAPP" laws, it may be possible for defamation defendants to get the complaints against them dismissed at an early stage, if the comments at issue had a public-interest component. But when does a review on a site like Yelp.com have a public-interest component, and when is it simply a private issue between a consumer and a provider of goods or services? Ramasastry considers several precedents that illuminate when a posting touches upon the public interest, and when it does not. Monday, Jan. 12, 2009

JOHN W. DEAN

The Damaged Institution of the Presidency, How the Obama Administration Intends to Restore It, And What We Can Expect from New OLC Head Dawn Johnsen

FindLaw columnist and former counsel to the president John Dean comments on how the Obama Administration is likely to address the issues of presidential power and responsibility that led the Bush Administration into so much controversy. Dean contends that the Bush Administration seriously damaged the institution of the presidency through a pattern of conduct in which the Administration ignored the Geneva Conventions and statutes such as the Foreign Intelligence Surveillance Act, deemed torture legal, and coupled numerous new statutes with presidential signing statements claiming the president had the power to disregard them. Dean explains why there is every indication that the new nominee for the head of the Office of Legal Counsel, Dawn Johnsen, will take a very different and appropriately balanced approach. Friday, Jan. 9, 2009

MARCI HAMILTON

A Roundup of 2008's Developments Relating to Harms Suffered By Children in Religious Settings: Our Disturbing Current Status, and Some Signs of Progress

FindLaw columnist and Cardozo law professor Marci Hamilton considers a sobering topic: the instances, in 2008, in which children suffered harm in religious settings. Hamilton cites (1) instances in which it is alleged that children died because of their parents' religious beliefs forbidding medical treatment; (2) a study showing that abstinence-only sex education, supported by the Bush Administration for religious reasons, decreased condom use and thus exposed young people to STDs; (3) evidence of sexual abuse and neglect at a Texas FLDS compound, which led to a report by Texas Children's Protective Services detailing widespread abuse; and (4) credible allegations of child sex abuse within the ultra-Orthodox Jewish community, which so far have caused some of the community's religious leaders to suggest internal remedies, rather than calling in the civil authorities. Hamilton contends that each set of incidents is disturbing in itself and that, together, they form a pattern where children are harmed in religious settings and civil authorities must step in to remedy the situation. Thursday, Jan. 8, 2009

SHERRY COLB

The Costs of Testifying in One’s Own Defense: An Empirical Study Highlights the Problem, But What To Do About It?

FindLaw columnist and Cornell law professor Sherry Colb considers what action, if any, should be taken in light of the results of a recent, empirical study by Professors Theodore Eisenberg and Valerie Hans -- which will appear this year in the Cornell Law Review. Eisenberg and Hans found that the revelation of prior convictions -- which are fair game for prosecutors, if defendants opt to take the stand -- in fact increases the chance of conviction in close cases, just as defense attorneys have always feared. Colb considers possible solutions geared toward protecting fair-trial rights -- such as our justice system's deciding to never admit prior convictions, always admit prior convictions, or bar all defendants from taking the stand. Wednesday, Jan. 7, 2009

JOANNA L.GROSSMAN

Prenuptial Agreements: The Iowa Supreme Court Takes a Strong Pro-Enforcement Stance

FindLaw columnist and Hofstra law professor Joanna Grossman discusses a recent, significant decision from the Iowa Supreme Court regarding prenuptial agreements (commonly nicknamed "prenups"). Grossman also explains, more generally, how such agreements have developed in America, and the different approaches regarding how they should be interpreted, and how far they can go. In addition, she proposes a hybrid approach to interpreting prenuptial agreements that borrows elements from two popular approaches -- including the one the Iowa Supreme Court adopted. Tuesday, Jan. 6, 2009

JULIE HILDEN

The New York Times Is Sued for Insinuating that John McCain Recently Had a Mistress: How the Defamation Suit Is Likely to Play Out, and Why the Times Should Settle High

FindLaw columnist, attorney, and author Julie Hilden discusses a defamation suit that was recently brought by lobbyist Vicki Iseman against the New York Times, for a February 2008 article that many read to suggest that Iseman was having an affair with then-presidential candidate John McCain. Hilden explains the issues that may come up if the Iseman suit moves forward, including those relating to public-figure versus private-figure intent standards, defamation law's requirement of a "statement of fact," and the Times's use of confidential sources. She also suggests that problems with the case -- and with the article, as the Times's own public editor admitted -- should cause the Times to make a high settlement offer to Iseman. Monday, Jan. 5, 2009

VIKRAM DAVID AMAR AND ALAN BROWNSTEIN

The California Attorney General’s Brief in the California Supreme Court Case Challenging Proposition 8: The Questions It Raised, and Why It Surprised Many Observers

FindLaw columnist Vikram Amar and FindLaw guest columnist Alan Brownstein, both U.C., Davis, law professors, contribute the latest in an ongoing series of columns on the upcoming California Supreme Court decision regarding Proposition 8. (As readers are likely aware, Proposition 8 is the California initiative that purports to amend the California constitution to bar marriage rights to gay couples.) In this installment in the series, Amar and Brownstein examine the arguments put forth by California Attorney General Jerry Brown in the case. They contend that Brown's surprising and interesting arguments raise key questions about the nature of state constitutionalism. Friday, Jan. 2, 2009

CARL TOBIAS

The Federal Judiciary and Chief Justice Roberts’s Year-End Report: What We Can Likely Expect, and the Role the Recession May Play

FindLaw guest columnist and U. Richmond law professor Carl Tobias makes predictions about the likely content and message of the year-end report on the federal judiciary that Chief Justice Roberts will soon release. In particular, Tobias notes ways in which the recession may affect the proposals and points made in the Chief Justice's report, and points out the large number of federal judicial seats that President-elect Barack Obama will fill when he takes office (54 at a minimum, and perhaps as many as 119). Tobias also notes that this is a moment in history when there are justifiably high hopes for all three branches' ability to work together effectively to address pressing issues relating to the federal judiciary, including relatively low judicial salaries that may deter top candidates or convince sitting judges to require early. Wednesday, Dec. 31, 2008

ANTHONY J. SEBOK

The Supreme Court's Latest Decision on Federal Preemption of State Law: Why it Is Significant, and What it Hints About the Likely Outcome of the Upcoming Major Preemption Decision

FindLaw columnist and Cardozo law professor Anthony Sebok analyzes the Supreme Court's recent federal-preemption decision. Sebok looks both backward -- to the major precedent with which the Court had to contend -- and forward, to how this ruling may affect or help predict the way the Court will rule in another major preemption case, still to be decided this Term. Sebok also considers the evolving views of the Justices on the preemption issue, and their possible motivations for changing their views on preemption over time. Finally, he considers the controversial "presumption against preemption," and the role it is playing here. Tuesday, Dec. 30, 2008

MICHAEL C. DORF

The Era of Big Government is Starting Over: Will the Obama Administration Transform American Constitutionalism in the Way that FDR Did?

FindLaw columnist and Cornell law professor Michael Dorf considers whether President Obama will effect the same kind of constitutional transformation that FDR did with his New Deal. Dorf begins by reviewing exactly how FDR ended up transforming constitutional law, by lessening the importance of states' rights and economic rights, and greatly increasing administrative agencies' role. He then goes on to sketch what the Obama Administration's constitutional revolution might look like, covering topics such as international action, the public/private distinction, and the possible creation of new rights. Tuesday, Dec. 30, 2008

JOANNE MARINER

Advice to Obama on Closing Guantanamo

FindLaw columnist and human rights attorney Joanne Mariner argues that, in keeping his promise to close the detention center at Guantanamo, President-elect Obama should follow the counsel given in an open letter to him from the American Civil Liberties Union (ACLU), Amnesty International USA, Human Rights First, and Human Rights Watch, of which Mariner is a Director. Among the four groups'recommendations, as Mariner explains, is the contention that detainees should either be prosecuted in the federal courts or released to their home countries (unless they would suffer persecution there, in which case they must be resettled elsewhere). In support of this recommendation, Mariner points to evidence that the federal courts have a long history of the successful prosecution of terrorism cases. In addition, citing prosecutors' ability to bring charges such as conspiracy based on minimal evidence, Mariner contends that President-elect Obama should not -- as some have suggested -- embrace a system allowing the preventive detention of some persons who cannot be proven beyond a reasonable doubt to have committed any crime. Monday, Dec. 29, 2008

JULIE HILDEN

How the Ongoing Transitions in Journalism May Affect the First Amendment's "Marketplace of Ideas"

FindLaw columnist, attorney, and author Julie Hilden considers the First Amendment costs of the financial troubles newspapers are currently undergoing, and the possibilities for the future. In particular, Hilden focuses on the likelihood that the worsening fortunes of newspapers will aggravate the impact of the "digital divide" between Internet "haves" and "have nots"; the free-speech costs of increasing media consolidation; and an interesting proposal by Joel Brinkley to craft an antitrust-law exception that would allow newspapers to together agree to charge for access to their websites. Wednesday, Dec. 24, 2008

MARCI A. HAMILTON

How the Bush Administration's Approach to Healthcare Providers' "Conscience Rights" Illustrates Its Troublingly Unilateral Exercise of Power

FindLaw columnist and Cardozo law professor Marci Hamilton discusses the Bush Administration's recent decision to put into place a "conscience rights" policy. The policy gives healthcare providers the option of refusing to provide -- or even provide information about -- healthcare options that go against the provider's own conscience, including the option of abortion and probably also options involving contraception. Hamilton argues that the decision fits into a disturbing pattern showing the Administration's willingness to act unilaterally, even if its decisions clash with those of Congress and the States and with constitutionally-mandated church/state separation. Tuesday, Dec. 23, 2008

SHERRY F. COLB

The U.S. Supreme Grants Review in Rivera v. Illinois: Reconciling Peremptory Challenges, Racial Discrimination and Harmless Error

FindLaw columnist and Cornell law professor Sherry Colb discusses a case that the Supreme Court recently opted to decide, involving the following interesting scenario: The attorney for the defendant in a criminal case sought to use one of the defendant's peremptory challenges (that is, a challenge for which the defendant need not provide justification, but which automatically excludes a juror). The judge, however, refused to honor that challenge, on the ground that the challenge discriminated against the juror based on her race and sex and therefore violated a rule set down in Supreme Court precedent. That very juror -- who was aware that the defendant had tried to use the challenge to exclude her -- not only joined the jury, but became its foreperson. The jury convicted the defendant. Based on this scenario, the Court must address this difficult question: Assuming the judge's ruling was wrong, and the defendant should have been able to use the peremptory challenge, should his conviction automatically be reversed -- or should it be subject to harmless-error analysis, under which the juror's presence on the jury may well be seen as innocuous, since no reason (such as bias) was given for removing her? Monday, Dec. 22, 2008

ANITA RAMASASTRY

A Kentucky Court Approves the Seizure of Out-of-State Companies’ Domain Names: A Dangerous Precedent that May Chill Free Speech and Impede Global Internet Communications

FindLaw columnist and U. Washington law professor Anita Ramasastry discusses a Kentucky state court ruling that she argues could set a dangerous precedent affecting constitutional rights on the Internet. In the decision -- which is now before Kentucky's Court of Appeals -- a trial judge held that the State of Kentucky had the power to seize the domain names of online gambling sites that were being accessed by Kentucky residents, even though the sites had many other users, some of whom apparently live in places where gambling is legal. The trial judge deemed the domain names to be illegal "gambling devices," not unlike slot machines or roulette tables, but Ramasastry argues that this conclusion was mistaken -- as was the court's conclusion that the domain names were located in Kentucky. As Ramasastry explains, the appellants -- joined by several Internet civil liberties groups, such as the ACLU and EFF -- also argue that the seizure, if upheld, would violate constitutional rights to free speech and due process, as well as the constitutional principle that individual states cannot regulate interstate or international commerce. Monday, Dec. 22, 2008

VIKRAM DAVID AMAR

The California Supreme Court’s Delicate Position with Respect to the Challenge to the Anti-Same-Sex Marriage Proposition 8, and the Hurdle for the Challengers: Part Three in a Series of Columns on the Pending Case

FindLaw columnist and U.C., Davis, law professor Vikram Amar continues a multi-part series of columns on the upcoming California Supreme Court case regarding Proposition 8. (As readers may be aware, Proposition 8 purported to reverse the Court's prior decision that the California Constitution extends marriage rights equally to straight and gay couples alike.) In this installment, Amar considers the crucial question of whether Prop. 8 is a valid amendment to the California Constitution, or an invalid revision to it -- posing a number of hypotheticals as to whether other possible propositions targeting certain groups would be amendments or revisions. He also suggests two criteria by which the public is likely to judge the court's eventual decision in the case -- its plausibility based on court precedent, and its persuasiveness in its own right -- and considers how these criteria may apply to the challengers' arguments. Friday, Dec. 19, 2008

EDWARD LAZARUS

Who Is the Worst Scoundrel, If All the Allegations Are True – Blagojevich, Madoff or Dreier?

FindLaw 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? Thursday, Dec. 18, 2008

JOANNE MARINER

European Support for Closing Guantanamo

FindLaw columnist and human rights attorney Joanne Mariner discusses one of the key questions President-elect Barack Obama will face as he makes good on his promise to close the notorious detention center at Guantanamo Bay: What should be done with detainees who should be released, but cannot be returned to their home countries because they would face torture or other mistreatment there? Mariner points out that most of the detainees at issue have no Al Qaeda links or record of violence, but also notes that the Bush Administration's labeling all Guantanamo detainees "terrorists" would make it politically difficult for the Obama Administration to resettle innocent detainees in the United States. Accordingly, she contends that the U.S. should pursue promising signs that European Union countries may be willing to accept these detainees -- but also consider that Europe may be more willing to help if America accepts its share of the released detainees, too. Wednesday, Dec. 17, 2008

ANTHONY SEBOK

The Unusual Story of Williams v. Philip Morris, and Its Third Trip to the Supreme Court – Including Some Predictions about What the Court Will Do This Time

FindLaw columnist and Cardozo law professor Anthony Sebok discusses the fascinating case of Williams v. Philip Morris -- which has ping-ponged back and forth between the Oregon Supreme Court and the U.S. Supreme Court, where it is now being heard for the third time. The case concerns a $79.5-million punitive damages awarded rendered by an Oregon jury to a smoker's widow. The controversy over the case involves the judge's decision to instruct the jury that it was permitted to take into account harms caused by the same tobacco-company conduct to other smokers who were not parties to the case. Sebok explains why the case now involves two powerful, clashing arguments -- and notes that, based on oral argument, Chief Justice Roberts may favor a disposition that would re-examine possible due process limits on damages awards in personal-injury cases like this one. Tuesday, Dec. 16, 2008

RUTI TEITEL

Bringing Transitional Justice Home: President Obama's Dilemma about the Past Administration's Human Rights Abuses -- What is to be Done, and Who'll be the Judge?

FindLaw guest columnist and New York Law School professor Ruti Teitel discusses the question of how the incoming Obama Administration should deal with the strong evidence of human rights abuses -- including torture and rendition -- by the Bush Administration in connection with the "war on terror." Drawing in part on the experience of her native Argentina, Teitel contends that the best approach would be an independent, nonpartisan truth commission, where evidence, if strong, could lead to prosecutions in civilian federal courts. She also points out that, with several foreign tribunals poised to address cases involving allegations of Bush Administration abuses, the alternative to a full U.S. investigation is not that no investigation will occur; it is that foreign investigations will determine the historical record with respect to U.S. conduct. Tuesday, Dec. 16, 2008

MICHAEL C. DORF

What the Alleged Misdeeds of Rod Blagojevich Teach Us About Lawful Politics

FindLaw columnist and Cornell law professor Michael Dorf makes an interesting argument: While the allegations against Illinois Governor Rod Blagojevich describe contemptible and illegal behavior, Dorf contends, it is also behavior that is not as anomalous, in our electoral system, as we might like to believe. With respect to each of the following three allegations, Dorf makes a parallel to other disturbing, yet perfectly legal, behavior: The allegation that Blagojevich tried to penalize Chicago Tribune journalists for negative coverage and effectively pay for positive coverage; the allegation that Blagojevich extorted contributions in exchange for government favors; and the allegation that Blagojevich tried to obtain benefits for himself or his wife in exchange for appointing a particular person to fill President-elect Obama's now-vacant Senate seat. Dorf thus contends that Blagojevich's alleged misdeeds touch on much deeper issues in American politics. Monday, Dec. 15, 2008

CARL TOBIAS

Why Barack Obama, as President, Should Nominate Leading Law Professors for Seats on the Federal Appeals Court

FindLaw columnist and U. Richmond law professor Carl Tobias makes a strong case for Barack Obama's selecting leading legal academics as some of his nominees to key seats on the federal appellate courts. Tobias points to the practices of several prior presidents who chose law professors for the bench; contends that law professors' skills and experience ideally prepare them to serve as appeals jurists; and notes that those professors who have proven to be collegial with fellow faculty members would be very likely to exhibit the same laudable collegiality toward fellow judges with whom they would sit on three-judge or en banc panels. Tobias also points out that Obama -- himself a former law professor -- is already very knowledgeable about this set of potential judges. Finally, Tobias names a number of law professors who he argues would be outstanding candidates. Monday, Dec. 15, 2008

JOHN DEAN

Why Claims that Black Californians Deserve Blame for the Passage of California’s Anti-Gay-Marriage Proposition 8 Are Unfair and Untrue

FindLaw columnist and former counsel to the president John Dean takes strong issue with claims that black Californians are to blame for the fact that Proposition 8 -- which purports to amend the California Constitution to withhold marriage rights from gay couples -- was passed by voters on Election Day 2008. Dean argues that the real blame lies with those who led the anti-Proposition 8 campaign; he contends that their strategies and advertisements failed to drive home to black California voters the strength of the parallel between anti-miscegenation laws and Proposition 8, and to effectively present the argument that Proposition 8 is not just a definition of marriage, but also a blatant form of discrimination. Friday, Dec. 12, 2008

ANITA RAMASASTRY

Can the Global Network Initiative Advance Freedom of Expression and Privacy Rights in Countries that Censor the Internet? Why It Is a Promising Start, But Still Leaves a Large Hole to Be Filled

FindLaw columnist and U. Washington law professor Anita Ramasastry describes and comments on the Global Network Initiative (GNI) -- through which Microsoft, Google and Yahoo! are attempting to tackle the issues that arise from their providing Internet services in countries that demand censorship of webpages and/or ask Internet companies for information leading to the identity of persons whose postings are seen as anti-government or otherwise objectionable. As Ramasastry explains, over the past two years, the three companies have worked with human rights organizations and NGOs such as the Center for Democracy and Technology to develop a set of principles to address and prevent infringements of speech and privacy rights. She points out that the effort, while a positive step, has some sharp limits, which she details. Firday, Dec. 12, 2008

MARCI HAMILTON

The Controversy Over the Tactics that Can Be Used to Protest California's Anti-Gay-Marriage Proposition 8: What's Right, and Wrong, About a Recent High-Profile Ad By Religious Leaders

FindLaw columnist and Cardozo law professor Marci Hamilton argues that the religious leaders who signed the recent "No Mob Veto" advertisement in the New York Times, taking issue with the tactics of certain Proposition 8 protesters, deserve both praise and blame. She contends that the signatories are right to condemn tactics such as disrupting church services or spraying graffiti, but wrong to threaten to "expos[e]" and "publicly sham[e]" those who employ "the rhetoric of anti-religious bigotry." Drawing on comparisons to the anti-abortion movement, Hamilton contends that the right line to draw here permits speech but not illegal or disruptive action. Thursday, Dec. 11, 2008

SHERRY COLB

Writing Term Papers for Hire: Innocent Protected Speech?

FindLaw columnist and Cornell law professor Sherry Colb considers claims that a person who wrote "model" term papers did nothing morally wrong, and that in writing the papers, he was merely engaging in First-Amendment-protected speech. Colb contends that while the writing of true "model" papers would indeed be blameless and constitutionally-protected, in this case the surrounding evidence (especially the amounts of money paid) shows that the term papers were actually written so that students could pass them off as their own. To support her point, Colb draws analogies to areas of criminal law where conduct that is defended as innocuous can be proven to be criminal based on the evidence surrounding it. Wednesday, Dec. 10, 2008

JOANNA GROSSMAN

Adoption Rights for Gays and Lesbians in Florida: A Trial Court Rules That the State's Longstanding Ban Must End

FindLaw columnist, visiting Vanderbilt law professor, and Hofstra law professor Joanna Grossman discusses a recent Florida state court decision striking down a state law banning gay persons from adopting children. In addition to explaining the basis for the state court decision, Grossman argues that the law should have been struck down earlier as violating the federal Constitution, in the context of a case decided by the U.S. Court of Appeals for the Eleventh Circuit. Grossman also discusses why adoption laws that do not expressly mention gay persons (as the Florida law did), but still clearly apply to them, are less likely to be struck down. Tuesday, Dec. 09, 2008

JULIE HILDEN

A Louisiana Law Firm Challenges, On First Amendment Grounds, State Bar Advertising Rules that May Affect Attorney Blogs: The Issues the Suit Raises, and Others that May Arise in the Future

FindLaw columnist, attorney, and author Julie Hilden discusses a Louisiana law firm's federal-court challenge to bar rules that it contends will inhibit both its attorneys' right to blog on legal topics and their right to advertise their professional services. Noting that the U.S. Supreme Court has recognized attorneys' First Amendment right to advertise, and that there surely is a First Amendment right to blog, Hilden argues that the firm has a strong case -- especially with regard to the bar rule that can be challenged as a "prior restraint." Hilden also advises bars nationwide to review their rules with an eye to Internet application, if they do not want to face meritorious First Amendment challenges like the one brought in Louisiana. Monday, Dec. 08, 2008

VIKRAM DAVID AMAR and ALAN BROWNSTEIN

The Core Issues in the Proposition 8 Case Before the California Supreme Court: Was Proposition 8 a Valid Amendment, or an Invalid Revision, to the California Constitution? And Should the Court - Or Governor Schwarzenegger - Make the Decision?

FindLaw columnist Vikram Amar and FindLaw columnist Alan Brownstein, both U.C., Davis, law professors, continue an ongoing series of columns on the upcoming California Supreme Court decision regarding Proposition 8. (As readers may know, Proposition 8 is the California initiative that purports to counteract the Court's interpretation of the California constitution to extend marriage rights equally to gay and straight couples.) In this column, Amar and Brownstein take on a key question: Should the California Supreme Court resolve the question of whether Proposition 8 validly amended the California Constitution, or should the Court hold that that question is one for Governor Schwarzenegger to resolve? Friday, Dec. 05, 2008

EDWARD LAZARUS

Is Obama Truly Like Lincoln - As His "Team of Rivals" and Other Parallels Suggest?

FindLaw 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. Thursday, Dec. 04, 2008

MICHAEL C. DORF

Does the Fourth Amendment Follow the Flag? In an Understandable but Problematic Ruling in a Terrorism Case, A Federal Appeals Court Says Yes, But Only at a Distance

FindLaw columnist and Cornell law professor Michael Dorf comments on a recent -- and potentially very significant -- decision by the U.S. Court of Appeals for the Second Circuit. As Dorf explains, the Second Circuit rejected U.S. citizen Wadih El-Hage's Fourth Amendment challenges to warrantless searches of his home in Kenya and warrantless electronic surveillance of his phone conversations there. Because the searches were conducted by U.S. agents (with the cooperation of local governments), El-Hage argued that the Fourth Amendment applied. The Second Circuit ruled against him -- but was the ruling motivated by constitutional law, or fear of releasing El-Hage, who was convicted of involvement with the 1998 Al Qaeda bombings of embassies in Kenya and Tanzania? Dorf suggests the ruling -- while understandable in light of the context -- is problematic on the legal merits. Wednesday, Dec. 03, 2008

DOUGLAS W. KMIEC

An Important Case the Supreme Court Heard This Week Shows Why Constitutional and Statutory Remedies for Gender Discrimination are Not Redundant

FindLaw guest columnist and Pepperdine law professor Douglas Kmiec weighs in on one of this Term's most significant Supreme Court cases -- which raises the question whether gender discrimination plaintiffs may seek remedies through Section 1983, or only through Title IX. Kmiec contends that it is quite clear that Congress intended both avenues to be available, but notes that Justices like Antonin Scalia prefer not to delve into Congressional intent. He also criticizes the Bush Administration for failing to participate, through the Solicitor General's Office, in this case, and express the hope and belief that the incoming Obama Administration will take a different view on similar gender-equality cases. Wednesday, Dec. 03, 2008

ANTHONY J. SEBOK

Chevron Wins an Alien Tort Statute Case - But the Victory May Be Less Important than It Might Seem

FindLaw columnist and Cardozo law professor Anthony Sebok discusses a recent defense verdict in a case brought against Chevron under the Alien Tort Statute (ATS). The plaintiffs argued that Chevron should be liable, under both the ATS and California tort law, for a brutal attack by the Nigerian military and police against protesters on Chevron's oil platform. They pointed out that Chevron had invited the military and police in, and even brought them there with company helicopters. In response, Chevron argued that it could not have foreseen that the military and police would use lethal force and later, torture. While the jury sided with Chevron, Sebok cautions that it is dangerous to generalize, on the basis of this particular defense victory, regarding the chances of success for other ATS cases in the future because there were aspects of the Chevron case that made it unusual and unique. Tuesday, Dec. 02, 2008

JOANNE MARINER

A Public Accounting for Post-9/11 Abuses

FindLaw columnist and human rights attorney Joanne Mariner argues that the incoming Obama Administration should, within its first six months, convene a nonpartisan Commission of Inquiry regarding post-9/11 human rights abuses, including torture committed or caused by the U.S. government. Among the questions the Commission should address, Mariner contends, are who should be held accountable for proven abuses -- such as the waterboarding of detainees -- and how. Mariner offers specific suggestions as to features the Commission must have if its work is to be effective -- such as subpoena power, the power to recommend prosecutions of former government officials, and the ability to review relevant classified material. In addition, she argues that the Commission should be convened regardless of whether President Bush issues a set of pardons for those who may be accused -- because, among other reasons, the historical record should be set straight. Monday, Dec. 01, 2008

SHERRY F. COLB

A Judge Orders a Woman Not to Have Children While On Probation: Did He Violate Her Rights?

FindLaw columnist and Cornell law professor Sherry Colb analyzes whether a controversial probation condition imposed by a Texas judge would be deemed constitutional under governing Supreme Court precedent. The judge imposed the condition upon a woman who was guilty of failing to protect her child from the child's father's beatings, and failing to seek medical care for the child's injuries, which included broken bones. The judge sentenced the woman to ten years' probation -- with the condition that she is forbidden to conceive and bear a child. Colb explains both the argument that could be made in support of such a probation condition, and the reasons why that argument is flawed. Wednesday, Nov. 26, 2008

CARL TOBIAS

Why the Federal Courts Should Give Thanks This Thanksgiving: A Set of Positive Developments, with the Hope of More to Come

FindLaw guest columnist and U. Richmond law professor Carl Tobias explains why both the federal court system and sitting federal judges may have especially good reasons to give thanks this year. In addition to predicting that the Obama Administration will prove to have a positive effect on the federal courts, Tobias also describes specific changes that are likely to lower the number of vacant judgeships, raise judges' salaries to attract excellent candidates away from the private sector, improve the effectiveness of the judiciary's self-policing, and ensure that the experience of sitting on a federal jury is a more positive one. Wednesday, Nov. 26, 2008

JOANNA GROSSMAN

Why the New Administration Should Focus on Workplace Equality: Some Easy Fixes for Important Problems

FindLaw columnist, visiting Vanderbilt law professor, and Hofstra law professor Joanna Grossman describes four key ways in which the Obama Administration could improve workplace equality in America, by eliminating discrimination based on sex or sexual orientation. She also notes that some of the solutions would be relatively easy for the Obama Administration to accomplish, by simply reversing prior Bush Administration policies or signing legislation President Bush had threatened to veto. Among the topics Grossman covers are pay discrimination, rules that make anti-discrimination law harder to enforce, possible changes to the Family and Medical Leave Act, and the recognition of the rights of gay, lesbian, and transgender workers not to suffer discrimination. Tuesday, Nov. 25, 2008 JULIE HILDEN

The Supreme Court Opts to Decide Whether McCain-Feingold’s Campaign Finance Regulations Were Properly Applied to a Film Attacking Hillary Clinton, and to Ads for the Film

FindLaw columnist, attorney, and author Julie Hilden discusses the Supreme Court's decision, this month, to grant review of a lower-court ruling that concerns the intersection of campaign finance law and the First Amendment. The lower-court ruling approved the Federal Election Commission's decision to apply the McCain-Feingold campaign finance law to a film called "Hillary: The Movie" and to the ads for that film. As Hilden explains, however, the ruling may either be held to violate the Supreme Court's narrow definition of what counts as an "electioneering communication," or cause the Court to narrow that definition further. Monday, Nov. 24, 2008

VIKRAM DAVID AMAR

Analyzing the Two Key Arguments in The California Supreme Court Case Regarding the Anti-Same-Sex-Marriage Proposition Eight: Part One in a Series of Columns

FindLaw columnist and U.C., Davis, law professor Vikram Amar begins what will be a series of columns on California's Proposition 8. (As readers may know, Proposition 8 is the initiative that purported to amend the California Constitution to ban same-sex marriage, after the California Supreme Court had held that the Constitution guaranteed marriage equality.) In the series, Amar will address two questions: Was Proposition 8 validly enacted? And, what is the status of same-sex marriages that were entered into after the California Supreme Court held that the California Constitution guaranteed marriage equality, but before 52% of California voters endorsed Proposition 8? Friday, Nov. 21, 2008

EDWARD LAZARUS

A Federal District Judge's Clash with a Repeat Litigant: An Unusual Case with Larger Ramifications For How We Define Justice and Fairness

FindLaw 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. Thursday, Nov. 20, 2008

JOANNE MARINER

How to Close Guantanamo in Six Steps

President-elect Barack Obama recently re-committed himself to fulfilling his campaign promise to close the infamous detention facility at Guantanamo -- but when he does so, important decisions will need to be made regarding the treatment of both current detainees and future terrorism suspects. Drawing upon her own and others' work at Human Rights Watch, FindLaw columnist and human rights attorney Joanne Mariner suggests a six-step plan for the Obama Administration to follow when closing Guantanamo. Among other features, the plan would offer an assessment of the evidence against current Guantanamo detainees by a new Administration that is able to take a more balanced look; and would ensure that all terrorism charges are tried, using fair procedures, in the federal courts -- which have already seen the post-9/11 prosecutions of over 100 such cases. Wednesday, Nov. 19, 2008

ANTHONY J. SEBOK

The Obama Administration's Likely Effect on Tort Law and the Civil Justice System Generally

FindLaw columnist and Cardozo law professor Anthony Sebok predicts the possible effect of the new Obama Administration and the influx of Democrats into Congress upon the civil justice system in general, and the tort system in particular. In considering President-elect Obama's views, Sebok points to both his support for the Class Action Fairness Act, which some other Democrats opposed, and the article Obama co-authored with fellow Senator Hillary Clinton on an alternative dispute resolution mechanism for medical malpractice claims. Yet overall, Sebok advises readers to look for more action from Congress than the incoming president on such matters. Tuesday, Nov. 18, 2008

MICHAEL C. DORF

Why the Obama Transition Team's Intrusive Questionnaire May Exclude Some of the Best Job Candidates, or Deter Them From Applying

FindLaw columnist and Cornell law professor Michael Dorf comments on the broad questionnaire President-elect Barack Obama's transition team is requiring potential staffers to fill out. Citing particular questions that are troubling, Dorf contends that some of the information sought is not properly relevant to an applicant's qualifications for an Obama Administration job, and expresses concern that some of the questions will either cause well-qualified applicants to be screened out, or deter well-qualified applicants from seeking out jobs with the Administration. At a time when the country truly needs the best and the brightest, Dorf argues, minor personal peccadilloes ought not to be the focus; finding the best possible person for the job should. Monday, Nov. 17, 2008

JOHN W. DEAN

Predicting the Nature of Obama's Presidency

FindLaw columnist and former counsel to the president John Dean makes predictions regarding Barack Obama's impending presidency, based on work by scholar and author James David Barber. Barber divided presidents into four categories based on whether they perform actively or passively in their political roles, and whether their feelings toward those roles were positive or negative. Dean deems Obama an active/positive president, and George W. Bush an active/negative president -- and explains how Bush's characterization accurately predicted important aspects of his presidency, and how Obama's characterization may do the same. Dean also notes which other presidents fell into the same categories as Obama and Bush, and how those presidents fared. Friday, Nov. 14, 2008

MARCI HAMILTON

The Five Religion-Related Issues that Should Most Concern the Future Obama Administration

FindLaw columnist and Cardozo law professor Marci Hamilton isolates five issues, all touching on the relationship between the federal government and religion or religious groups and organizations, that she argues should be top priorities for the incoming Obama Administration. Hamilton focuses on stopping government funding to social-service programs that discriminate based on religion; choosing Justice Department officials and Supreme Court Justices with a strong belief in church/state separation, while abolishing the Department's religion chair; supporting states' prosecutions of child sex abuse, including in religious communities and institutions, and conditioning federal funds on abolition of the sex-abuse statute of limitations; lend resources for investigations of instances of child sex-abuse connected to polygamy; and revoking laws that give religious entities a strong edge in local zoning disputes. Thursday, Nov. 13, 2008

JULIE HILDEN

If Obama Has the Opportunity to Appoint Our Next New Supreme Court Justice, Is He Right that Empathy Should Be A Core Criterion?

FindLaw columnist, attorney, and author Julie Hilden discusses Barack Obama's comments on what qualities he will seek if he has the opportunity to nominate Justices to the Supreme Court. Obama emphasized that he will select nominees with a strong sense of empathy, developed through life experience, and suggested that he will not limit his search to law professors and judges. Recently, Senate Republican Jon Kyl threatened to block Obama's nominees if their empathy played too strong a role, compared to their respect for Court precedent. Hilden argues that Obama's search for empathetic judges is legitimate, giving examples of decisions in which both conservative and liberal justices have exhibited empathy. However, she expresses skepticism about Obama's going beyond law professors and judges, and emphasizing other life experience, in selecting his nominees. Wednesday, Nov. 12, 2008

CARL TOBIAS

Remedying Resource Shortages in the U.S. District Courts: How the Courts Themselves Can Improve the Situation

What happens when a federal judicial district finds itself short of judges? FindLaw guest columnist and University of Richmond law professor Carl Tobias answers the question by taking the United States District Court for the District of Colorado as a case in point. Tobias explains that since the progress of a federal district court's criminal cases must comply with the Speedy Trial Act, it is the court's civil docket that predictably falls behind when the court is short-staffed. He cites specific strategies that may ease the situation -- ranging from seeking parties' consent to having their cases tried before magistrate judges, to enlisting the aid of federal appellate judges and of senior federal district judges, who typically take on a lighter caseload. Tuesday, Nov. 11, 2008

SHERRY F. COLB

Do Convicts Have a Constitutional Right to Access Crime-Scene DNA? The U.S. Supreme Court Considers the Question

FindLaw columnist and Cornell law professor Sherry Colb discusses a criminal procedure case that the Supreme Court will resolve this Term. The case arose because William Osborne, convicted of kidnapping and sexual assault in Alaska 14 years ago, says up-to-date DNA analysis will clear him, but prosecutors refuse to turn over the evidence to be tested. Colb considers whether there is any "rational basis" -- the legal standard -- for the prosecutors' stance, and finds none, but she also notes that in other DNA-testing cases, it is possible that a rational basis might exist, depending on the facts of the case. Monday, Nov. 10, 2008

VIKRAM DAVID AMAR

Should Americans Continue to Elect Presidents and Vice Presidents on a Single Ticket - Preventing a McCain/Biden or Obama/Palin Win?

FindLaw columnist and U.C., Davis, law professor Vikram Amar considers the pros and cons of America's current system of electing presidents and vice presidents on a single ticket. Amar notes that picking Sarah Palin as a running mate may have hurt John McCain, and points out that, with a separate-ticket system, voters who preferred McCain over Obama could still have opted for Biden, not Palin, as their Vice President. Amar points out that in other contexts (such as selecting Senators and Members of Congress on Election Day), it's not rare for Americans to split their votes between Democrats and Republicans on a single trip to the ballot box. Accordingly, he asks why the presidency and vice-presidency are inextricably linked on the ballot, and gives reasons why we may, in the future, want to reconsider that choice. Friday, Nov. 07, 2008

EDWARD LAZARUS

Barack Obama and the Changing World

FindLaw 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. Thursday, Nov. 06, 2008

MICHAEL C. DORF

What Barack Obama's Victory Means, and How It Should be Used

FindLaw columnist and Cornell law professor Michael Dorf comments on how Barack Obama, as president, should build on his historic election victory, suggesting several policy options that Obama should pursue. First, Dorf argues that Obama should use government spending -- especially on aging infrastructure and public education -- as part of an economic stimulus plan that will also be bolstered by tax cuts for the middle class. Second, Dorf contends that Obama is right to counsel a withdrawal from Iraq, but may be wrong in offering a companion plan to bolster troops in Afghanistan, which is notoriously difficult for world powers to attempt to occupy. Third, Dorf suggests that Obama should offer former rival John McCain an administration position -- perhaps in an area relating to campaign finance, the treatment of detainees, or global warming, all topics on which McCain has expressed moderate views. Wednesday, Nov. 05, 2008

JONNA M. SPILBOR

Why OJ Simpson Is Unlikely to Receive a New Trial on the Kidnapping and Robbery Charges of Which He Was Convicted

FindLaw guest columnist, criminal defense attorney, and television legal commentator Jonna Spilbor discusses the motion for a new trial recently that was filed by O.J. Simpson's defense lawyers, after Simpson was convicted of kidnapping and armed robbery in connection with a Las Vegas incident involving sports memorabilia. Spilbor explains why the judge is likely to deny the motion, but notes that Simpson may fare better on appeal --- particularly with respect to arguments that the judge did not adequately take precautions to ensure that Simpson's notoriety and the widespread belief that he should have been convicted in his prior murder trial did not affect the verdict in this later trial. Tuesday, Nov. 04, 2008

RICHARD L. HASEN

Electing the President in 2012: Three Predictions About How the Rules Might Differ Next Time Around

FindLaw guest columnist and Loyola Los Angeles law professor Richard L. Hasen predicts how the lessons of this election may affect the rules of the game in 2012. In particular, Hasen makes three predictions: First, we'll see fewer primaries and more caucuses, at least for the Democratic party, due to problems with Democratic caucuses in 2008. Second, there will be more outside money -- due to likely clarification from the FEC as to what election activities are proper for 527 organizations, and likely rulings from conservative courts, including the Roberts Court, striking down on First Amendment grounds limits on election spending by groups, including PACs. Third, and finally, Hasen projects that there will be reforms to election administration -- addressing problems such as the recurring issue of mismatches between DMV and voting records. Tuesday, Nov. 04, 2008

JOANNE MARINER

A Short List of Human Rights Reforms for the Next President

FindLaw columnist and human rights attorney Joanne Mariner makes recommendations as to needed reforms that should appear on the next president's human rights agenda, drawing upon her own and others' work at Human Rights Watch. She focuses in particular on three areas: First is counterterrorism policy, such as policy with respect to detainees, which Mariner argues should be transformed to respect detainees' rights, with a truth commission convened to investigate past abuses. Second is the U.S.'s relations with other governments; she contends that the U.S. must hold its allies, not just its enemies, accountable for their human rights violations. Third is U.S. exceptionalism; Mariner contends that the U.S. cannot continue to claim to honor human rights while also opting not to sign important human rights treaties, and refusing to recognize International Criminal Court jurisdiction over Americans. Monday, Nov. 03, 2008

JOHN DEAN

The Evidence Establishes, without Question, that Republican Rule Is Dangerous: Why It Is High Time to Fix This Situation, For the Good of the Nation

FindLaw columnist and former counsel to the president John Dean draws on his own prior work and that of social scientist Robert Altemeyer to argue that Republican candidates John McCain and Sarah Palin possess strongly authoritarian personality traits that will cause them, if elected, to disserve the nation's best interests. Dean also contends that, because President Bush and Senator McCain share many of the same authoritarian traits, a McCain Administration would not importantly depart from the outlook and approach of the Bush Administration. Friday, Oct. 31, 2008

MARCI HAMILTON

Can Religious Groups Receiving Federal Funds Hire Only Co-Religionists? An Issue that Divides Obama and McCain Is the Subject of a Newly-Released Department of Justice Memorandum

FindLaw columnist and Cardozo law professor Marci Hamilton comments on a controversial issue: When religious organizations receive government funds to support their social-service programs, can they staff those programs with only their co-religionists, or must they hire staffers without regard to religious belief? Hamilton explains how each presidential candidate can be expected to address this issue if elected. She also describes the Bush Administration's position on the issue -- relying on a memorandum on this topic from the Department of Justice's Office of Justice Programs that was written in 2007 but released only recently, and that invokes the Religious Freedom Restoration Act (RFRA). Thursday, Oct. 30, 2008

SHERRY COLB

Are Different Abortion Methods Morally Distinguishable? The U.S. Court of Appeals for the Fourth Circuit Hears Richmond Med. Center v. Herring

FindLaw columnist and Cornell law professor Sherry Colb discusses a legal issue the Fourth Circuit will soon decide: whether a Virginia statute violates the Constitution when it prohibits intact dilation and evacuation ("D&X") abortion. After describing the current state of Supreme Court precedent on abortion, Colb also analyzes a philosophical issue that underlies the doctrine: Is there a moral difference between a procedure in which a doctor kills a non-viable fetus inside the womb, and one in which a doctor kills a non-viable fetus outside the womb? Wednesday, Oct. 29, 2008

JOANNA GROSSMAN

The Thirtieth Anniversary of the Pregnancy Discrimination Act: Cause for Celebration, but also Reflection on the Progress Yet to be Made

FindLaw columnist, Vanderbilt visiting law professor, and Hofstra law professor Joanna Grossman considers, on the thirtieth anniversary of the Pregnancy Discrimination Act, how much progress has been made -- and still has yet to be made -- in ensuring workplace equality for pregnant women. Grossman explains the legal developments that have brought us to our current situation, and argues that a final step urgently needs to be taken: Pregnant women should be protected from workplace discrimination not only when they are functioning just as they would if they were not pregnant, but also when pregnancy leads to temporary disability. Grossman notes that this type of protection is especially important for women who work in non-traditional jobs that are especially strenuous or hazardous. Tuesday, Oct. 28, 2008

RICHARD L. HASEN

Senator Obama's $150-Million September and $600-Million Campaign: Signs that Our Campaign Finance Laws are Broken or Working?

FindLaw guest columnist, Loyola Los Angeles law professor, and Election Law Blog creator Richard Hasen describes the state of campaign financing in the current presidential election, and considers what it says about our campaign finance laws and possible reforms to them. Hasen concludes that one's views on whether reform is needed will likely turn on one's concept of equality: Should candidates receive equal funding so they have an equal chance to reach the public and neither's message risks being drowned out? Or should the funding candidates receive be in proportion to their support among the population? Put another way, do candidates deserve an equal voice, or a voice equal to their ability to command voter support? Tuesday, Oct. 28, 2008

JULIE HILDEN

A Federal Judge Holds that Prohibiting Teachers In Public Schools From Wearing Partisan Political Buttons Does Not Violate the First Amendment: The Ruling's Reasoning and Why It's Wrong

FindLaw columnist, attorney, and author Julie Hilden discusses a recent ruling by a federal judge holding that New York City's Board of Education can, consistent with the First Amendment, ban public-school teachers from wearing partisan political buttons. Hilden argues that the ruling was wrong -- but in part because a Supreme Court decision on which it relied was misguided. She also contends that a simple disclaimer could have addressed one of the judge's main concerns: the possible confusion by students of the teacher's point of view with that of the Board of Education or the school as an institution. Monday, Oct. 27, 2008

EDWARD LAZARUS

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

FindLaw 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. Friday, Oct. 24, 2008

VIKRAM DAVID AMAR

If McCain Wins, A Constitutional Dispute May Follow: Why Arizona's Process to Pick a Senator to Temporarily Fill McCain's Seat Is Unconstitutional

FindLaw columnist and U.C., Davis, law professor Vikram Amar discusses a constitutional clash that is likely to arise if John McCain is elected president. As Amar explains, Arizona Governor Janet Napolitano, a Democrat, would likely seek to appoint a Democrat to temporarily fill McCain's Senate seat and thus become a quasi-incumbent in the subsequent election for a permanent successor to McCain. However, a dispute would likely ensue because an Arizona statute says the state's governor must appoint a same-party successor, but that statute may well clash with the Seventeenth Amendment. Thursday, Oct. 23, 2008

ANTHONY SEBOK

Judge Jack Weinstein's Ruling Barring the Use of Race in Calculating the Expected Lifespan of a Man Seeking Tort Damages: An Isolated Decision, or the Beginning of a Legal Revolution?

FindLaw columnist and Cardozo law professor Anthony Sebok comments on an interesting and potentially very significant decision by Judge Jack Weinstein of the U.S. District Court for the Eastern District of New York. The case involved a man whose legs were paralyzed in the horrific 2003 Staten Island ferry crash. Judge Weinstein held that the City of New York could not argue, based on actuarial tables, that the man's expected lifespan would be shorter because he was black and blacks statistically have shorter lifespans than whites. Sebok analyzes and critiques the three arguments Weinstein made to support his ruling. He also discusses whether the ruling's principles might also apply to differences in expected future earnings based on race, and differences in either expected future earnings or expected lifespan based on gender. Wednesday, Oct. 22, 2008

ANITA RAMASASTRY

Does the Law Allow Your ISP to Charge You High Fees When You Want to Cancel your Contract? A Washington Lawsuit Suggests the Answer May Sometimes Be No

FindLaw columnist and U. Washington law professor Anita Ramasastry discusses a recent Washington lawsuit in which two plaintiffs, who seek to head a class action of similarly-situated persons, claim that Qwest, their provider of high-speed Internet service, charged them an illegally high early termination fees. As Ramasastry explains, the plaintiffs argue both that they did not terminate early because their contracts were month-to-month, and that, in any event, the fee charged by Qwest was an illegal "penalty" that far exceeded the damages the company truly suffered from early termination. Ramasastry notes that the termination fee/penalty issue has also arisen in similar cases regarding fees attached to the termination of cellphone contracts. Wednesday, Oct. 22, 2008

MICHAEL C. DORF

The Supreme Court Puts Ideology Aside in Deciding a Small But Important Ohio Election Case that Could Affect the 2008 Presidential Election

FindLaw columnist and Cornell law professor Michael Dorf explains and analyzes the Supreme Court's recent opinion resolving a voting controversy in a key swing state, Ohio. As Dorf explains, the practical effect of the Court's decision was to eliminate a risk that thousands of newly-registered Ohio voters would be purged from the rolls. Because those voters are predominantly Democrats, the decision's effect was therefore to favor Obama. Dorf praises the Court's conservative Justices for staying consistent with their prior decisions, rather than departing from them to favor McCain. At the same time, he points out that only after Bush v. Gore is this kind of nonpartisan hewing to precedent in a close election seen as cause for celebration, rather than par for the course. Tuesday, Oct. 21, 2008

RICHARD L. HASEN

Eight Years After Bush v. Gore, Why is There Still So Much Election Litigation and What Does This Mean for Voter Confidence in the Electoral Process?

FindLaw guest columnist, Loyola Los Angeles law professor, and Election Law Blog creator Richard Hasen explains the nature and impact of post-Bush v. Gore election law developments -- including a federal statute and the recent boom in election litigation. Hasen argues that these developments have in some ways improved, and in some ways worsened, the situation with respect to voting in America. However, he contends that the overall situation -- which has inspired very low voter confidence -- remains bad enough that an "election bailout" is warranted. Monday, Oct. 20, 2008

JOHN DEAN

Reflections on Historian Mary Hershberger's Piece on McCain's War Record, and a Q&A with the Author

FindLaw columnist and former counsel to the president John Dean discusses historian Mary Hershberger's recent piece on Truthdig.com -- in which Hershberger questioned some of the claims made by John McCain about his war record. Dean also includes his Q&A with Hershberger about her piece and the research that underlies it. Dean argues that the mainstream media has been wrong to refrain from closely examining McCain's claims about his war record for fear of being accused of "Swift Boating" McCain, and praises Hershberger for looking into the factual basis for a series of past events that has served as the centerpiece of McCain's campaign. Friday, Oct. 17, 2008

MARCI A. HAMILTON

The Rise and Fall of John McCain, As Explained By the Principles the Framers of the Constitution Embraced

FindLaw columnist and Cardozo law professor Marci Hamilton contends that presidential candidate John McCain once might have fit the Framers' key criterion for virtuous service in public office -- the ability to put one's own interests aside for the greater good -- but that is no longer the case. Hamilton contends that McCain once showed the ability to keep higher ideals in mind -- by, for example, fighting corruption in the Senate by insisting upon ethics rules and opposing earmarks. However, she argues that, since McCain selected Alaska Governor Sarah Palin as his running mate, he has been conducting the kind of win-at-all-costs campaign that betrays his past record. Thursday, Oct. 16, 2008

JESSELYN RADACK

A Recent Report Reveals Numerous Ethics Violations by Former Justice Department Attorneys Relating to the U.S. Attorney Firings of 2006 - So Why Haven't Bar Disciplinary Referrals Followed?

FindLaw guest columnist and attorney Jesselyn Radack discusses the recent report issued by the Justice Department's Office of the Inspector General and Office of Professional Responsibility regarding the controversial firings of a series of nine U.S. Attorneys. Attorney General Michael Mukasey has appointed a special prosecutor to look into possible criminal charges arising from the disturbing conduct detailed in the report. However, Radack asks why the Department has not also referred the attorneys involved to the bars of which they are members, to face disciplinary proceedings. In support of her point, she adduces evidence that comes directly from the Report, and connects it to specific ethics rules. The question of why no referrals have been made has special resonance for Radack herself -- as she was the subject of such referrals when she raised ethics issues with respect to the interrogation of John Walker Lindh. Thursday, Oct. 16, 2008

JULIE HILDEN

Do States Violate the First Amendment If Their Ban on Electioneering At or Near the Polls Extends to the Wearing of Partisan T-Shirts, Buttons, and Other Paraphernalia?

FindLaw columnist, attorney, and author Julie Hilden considers the First Amendment questions that are raised if states ban the wearing of partisan T-shirts and similar paraphernalia at voting sites. Currently, several states ban partisan gear on the ground that it constitutes "passive electioneering," while others permit it. Are states with a ban violating the First Amendment? Hilden suggests that the answer is yes, contending that the First Amendment harm to those who are forced to put away their gear or forfeit their right to vote is serious, while the harm to those who see fellow voters wearing partisan material is minimal. Wednesday, Oct. 15, 2008

JOANNA GROSSMAN

And Connecticut Makes Three: The State's Highest Court Declares Same-Sex Marriage Ban Unconstitutional

FindLaw columnist, Hofstra law professor, and visiting Vanderbilt law professor Joanna Grossman discusses the Connecticut Supreme Court's recent decision rejecting the state's ban on same-sex marriage. Grossman analyzes the court's reasoning, and explains the division over whether granting the right to enter into civil unions to gay couples means they need not also be afforded marriage rights. She also puts the Connecticut decision in the context of same-sex marriage and civil union developments across the country. Tuesday, Oct. 14, 2008

SHERRY COLB

The Fourth Amendment, Once Removed: The Supreme Court Examines a New Search and Seizure Loophole

FindLaw columnist and Cornell law professor Sherry Colb discusses a fascinating upcoming Supreme Court case about the Fourth Amendment. As Colb explains, prior Supreme Court cases have established that a police officer may -- without probable cause -- lawfully pretend to be your friend (or recruit an informant to do so) in an effort to gather information about you. Now, the Court must answer another question: If you invite your "pretend friend" to your home, and your "friend" uncovers illegal activity there, have you in effective consented to a warrantless police search of the premises? Colb contends that the answer should be no, for the "consent once removed" doctrine wrongly piles fiction upon fiction to find consent where there was none. Monday, Oct. 13, 2008

EDWARD LAZARUS

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?

FindLaw 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. Friday, Oct. 10, 2008

STEVE SANDERS

American Legal Conservatives Oppose the Citation of Foreign Law, But What About the Hallowed Practice of Citing to Blackstone?

FindLaw guest columnist and attorney Steve Sanders contends that legal conservatives, including Justice Antonin Scalia, indulge in serious hypocrisy when they both decry the Supreme Court's citation to sources of foreign law and, at the same time, themselves frequently cite to work of the British legal giant Blackstone. Though conservatives may counter that Blackstone's thought is especially relevant because he influenced the Constitution's Framers, Sanders responds that this points actually cuts in favor of allowing modern courts to follow the Framers' example by similarly citing to, and being influenced by, their own modern foreign contemporaries. Friday, Oct. 10, 2008

VIKRAM DAVID AMAR

Is Governor Sarah Palin Right That the Vice President Has the "Flexibility" to Play a Larger Role in the Legislative Branch? Though the Question Is Complex, Palin is Likely In Error

FindLaw columnist and U.C., Davis, law professor Vikram Amar discusses Governor Sarah Palin's claim, during the recent vice-presidential debate, that the Vice President has the flexibility to play a larger role in the legislative branch than just breaking ties in Senate voting. Amar analyzes the relevant constitutional history and text and concludes that Palin is wrong; this evidence suggests that the vice-president's proper role lies in the Executive Branch alone. Thursday, Oct. 09, 2008

CARL TOBIAS

Remembering Cooper v. Aaron, the Supreme Court Case That Sent the Message that Brown's Promise of Desegregation Must Be Kept

FindLaw guest columnist and U. Richmond law professor Carl Tobias reflects on the significance of the public school desegregation case Cooper v. Aaron now, fifty years after the Supreme Court issued its decision. Tobias explains why Cooper -- though far less famous than Brown v. Board of Education -- was similarly momentous in the Court's history, in that it signaled that the Court would not tolerate the ongoing efforts to evade Brown. He also discusses the broader meaning of Cooper: that the law, if actively enforced, can truly promote social justice and change. Thursday, Oct. 09, 2008

JOANNE MARINER

The Uighurs Go to Washington

FindLaw columnist and human rights attorney Joanne Mariner discusses a recent hearing at which, for the first time ever, a federal judge ordered the release, on parole, of detainees who had been held at Guantanamo. The detainees -- seventeen Muslim Uighurs who had been cleared by the Bush Administration for release in 2004 -- had previously been stuck in a kind of limbo: They could not be returned to their native China due to credible fears they would face incarceration and torture, and yet the Bush Administration would not agree to bring them to the U.S. Mariner argues that the district judge's ruling was correct and well-reasoned, but notes that the government has filed an emergency appeal seeking reversal. Wednesday, Oct. 08, 2008

ANTHONY J. SEBOK and BENJAMIN C. ZIPURSKY

More on the Upcoming Supreme Court Case of Wyeth v. Levine and the Preemption Temptation: Part Two of a Two-Part Series

In the second of a two-part series of columns, FindLaw columnist and Cardozo law professor Anthony Sebok and FindLaw guest columnist and Fordham law professor Benjamin Zipursky continue their discussion of Wyeth v. Levine, a tort case the Supreme Court will tackle this Term. In this column, Sebok and Zipursky consider whether the Supreme Court should rule that, in this case, federal law regarding pharmaceutical warnings preempted Vermont tort law on the same topic -- a ruling that would require the reversal of the large jury verdict in the plaintiff's favor. Sebok and Zipursky also explain how the controversy over the insufficient federal warnings on the now-withdrawn drug Vioxx fits into this picture. Tuesday, Oct. 07, 2008

MICHAEL C. DORF

Why the Constitution Neither Protects Nor Forbids Tax Subsidies for Politicking from the Pulpit, And Why Both Liberals and Conservatives May be on the Wrong Side of this Issue

FindLaw columnist and Cornell law professor Michael Dorf discusses a recent, controversial movement under which a number of pastors have chosen to violate a longstanding federal law, the Johnson Amendment. The Amendment states that churches and other nonprofits cannot both claim a tax exemption, and also endorse political candidates. Dorf considers and rejects various arguments suggesting that the Amendment is unconstitutional -- as a violation of the right to freedom of speech and/or free exercise of religion, or as clashing with the Establishment Clause by entangling the state in church affairs. He concludes that none of these constitutional arguments is valid under existing Supreme Court precedent -- and notes, too, that the sides conservatives and liberals are, respectively, taking in the debate over the amendment seem anomalous in light of their other beliefs. Monday, Oct. 06, 2008

ANITA RAMASASTRY

Before the RIAA Can Sue a Student, Mom and Dad Can Call a Lawyer: An Interesting Innovation Affords Some Notice to Students Accused of Illegal Downloading

FindLaw columnist and U. Washington law professor Anita Ramasastry discusses a Northern California federal district judge's recent ruling that held that, due to education privacy laws, students at the University of California at Santa Cruz and their parents were entitled to receive notice before the university turned over information pertinent to the students' alleged illegal file-sharing to the Recording Industry Association of America. Ramasastry praises the decision for honoring students' rights, and places it in the context of other recent court decisions that grapple with the issue of what rights students may have when accused of infringing copyrights through file-sharing -- including in situations where multiple students have access to the same computer. Monday, Oct. 06, 2008

JOHN W. DEAN

What History Has Taught Us to Expect About the Palin/Biden Debate

FindLaw columnist and former counsel to the president John Dean delves into history to consider the role and significance of presidential and vice presidential debates, in order to assess the likely impact of the Biden/Palin debate. Dean explains why, despite the famous example of the Nixon/Kennedy debate (in which Kennedy profited greatly from being telegenic), the lion's share of presidential election contests are relatively unaffected by the prior presidential and vice-presidential debates. The debates, in other words, are not game-changing, Dean explains -- though they do leave undecided voters, who are usually low-information voters, significantly better informed. Dean predicts that Sarah Palin's performance in the vice-presidential debate will follow the general trend, so that she is castigated by foes and lauded by supporters, regardless of the quality of her responses. Friday, Oct. 03, 2008

MARCI HAMILTON

The Financial Crisis from the Viewpoint of a Constitutional Scholar: How Today's Debacle Recalls James Madison's Nightmare at the Founding that None Would Have the Virtue to Lead

FindLaw columnist and Cardozo law professor Marci Hamilton offers an interesting point of view on the financial crisis, from her position as a constitutional scholar. Hamilton notes that the Framers of the Constitution equipped the President -- not Congress -- to be able to act quickly and univocally in this kind of emergency; Congress was meant to be relatively slow and deliberative in comparison. She thus faults President Bush for not taking decisive action. Hamilton also faults Speaker Pelosi and members of Congress for indulging their self-interest -- another fear of the Framers' -- by devoting significant time and focus to placing blame on others, rather than addressing the problem. However, Hamilton expresses the hope that the current Congressional deliberations will serve one of the Framers' key goals, by allowing the people to be heard and preventing interest groups from dominating. Thursday, Oct. 02, 2008

ROBERT A. LEVY

Judicial Appointments: What's on Tap from Obama or McCain?

FindLaw guest columnist and Cato Institute chairman Robert Levy explains why, in light of the hot-button issues that federal courts will likely address over the next four years, judicial nominations are vitally important. Levy argues that presidents George W. Bush and Bill Clinton were each able to reshape the federal judiciary and, because federal judges have a momentous impact on law and society, voters need to know what they can expect from Barack Obama and John McCain. Thursday, Oct. 02, 2008

SHERRY F. COLB

The Rationality of Spite: Why the Bailouts Do, And Should, Make People Angry

FindLaw columnist and Cornell law professor Sherry Colb argues that -- contrary to recent claims -- it might actually be rational for a person to oppose the proposed government economic bailout even if he or she will predictably benefit from the bailout's boost to the economy, and predictably suffer if no bailout occurs. Are those who fit this description simply "cutting off their noses to spite their faces" and acting illogically against their own best interests? Colb explains that the answer isn't as simple as it may seem. She notes that some might count the ability to inflict retribution as itself a benefit, and draws analogies to examples in law enforcement and anti-discrimination law where we rationally accept a loss to innocent persons, or to society as a whole, in order to punish undesirable behavior. Wednesday, Oct. 01, 2008

JOANNA GROSSMAN

Why A Federal District Court's Decision Is a Victory for Transsexuals' Right Not to Face Employment Discrimination

FindLaw columnist, Hofstra law professor, and Vanderbilt visiting law professor Joanna Grossman discusses an interesting and significant recent decision concerning a male-to-female transsexual who suffered employment discrimination. As Grossman explains, the law's protection of transsexuals' rights is complicated, for federal law does not directly protect them. Thus, transsexuals must sue under laws against gender discrimination, invoking the landmark Price Waterhouse Supreme Court decision, which holds that one kind of gender discrimination is gender stereotyping. In the case on which Grossman focuses, a transsexual successfully used this approach to argue that she had been illegally denied a job as a terrorism specialist with the Congressional Research Service at the Library of Congress. Tuesday, Sept. 30, 2008

JULIE HILDEN

The Drudge Report, Free Speech, and the Election: Is the "Marketplace of Ideas" Working Efficiently?

FindLaw columnist, attorney, and author Julie Hilden discusses the question whether election coverage -- especially The Drudge Report's -- is satisfying the Supreme Court's ideal of providing a well-functioning "marketplace of ideas." Hilden contends that while The Drudge Report has often shown its subjectivity, other media entities may be equally to blame for hiding theirs. She argues that more of the media should follow Drudge in making it apparent when they are flagging certain stories for special attention, and that both Drudge and other media entities should consider including metadata on their websites or broadcast screens tracking their choices, over time, regarding which stories and candidates to feature more heavily. Monday, Sept. 29, 2008

VIKRAM DAVID AMAR AND ALAN BROWNSTEIN

How Should the Law Respond When Health Care Providers' Obligations Conflict with their Religious Beliefs? Two Recent Developments That Illuminate the Issue: Part Two in a Two-Part Series

FindLaw columnist Vikram Amar and FindLaw guest columnist Alan Brownstein, both U.C., Davis, law professors, discuss recent, proposed Department of Health and Human Services (HHS) regulations that are intended to protect healthcare workers from being compelled by their employers or by the law to violate their religious beliefs. Amar and Brownstein contrast the HHS regulations with federal "charitable choice" programs that allow entities receiving federal money to hire their co-religionists to perform social-service duties. Amar and Brownstein compare the justifications for the proposed HHS regulations with those for the federal "charitable choice" rules. Friday, Sept. 26, 2008

EDWARD LAZARUS

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

FindLaw 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. Thursday, Sept. 25, 2008

LAUREN GERBER

The Top Ten Family Friendly Firms: Yale Law Women's List, and Why We Believe It Can Make a Difference

FindLaw guest columnist and Yale law student Lauren Gerber comments on the results and potential effect of the list recently compiled by Yale Law Women (YLW) of the top ten family-friendly law firms. As Gerber explains, the list is the result of YLW's survey of the Vault Top 100 law firms, and many of the firms that did not make the list spoke to YLW regarding ideas and suggestions as to how they can improve. Despite that positive sign, however, Gerber notes that many firms have a long way to go when it comes to issues such as retaining women attorneys, increasing their percentages of women partner, making part-time legal work a feasible option, and, more generally, making sure that working at Big Law and having a family are compatible goals for all attorneys. Thursday, Sept. 25, 2008

MICHAEL C. DORF

From "Bucket of Warm Piss" to Bench Coach: What the Modern Vice President Does Every Day

With even GOP nominee Sarah Palin asking, "What is it exactly that the V.P. does every day?," FindLaw columnist and Cornell law professor Michael Dorf offers some clear answers -- covering administrations from the Framers' day to the present. As Dorf explains, the common view of the vice president's duties as less than significant was accurate through much of American history. However, beginning with Walter Mondale, vice presidents have played a more substantial role. In particular, Dorf notes, Vice Presidents Gore and Cheney have both occupied formal policymaking positions and acted as "bench coach" to the president, providing advice and a sounding board. Finally, Dorf comments on what it may mean for Palin potentially to step into this more modern vice-presidential role. Wednesday, Sept. 24, 2008

ANTHONY J. SEBOK and BENJAMIN C. ZIPURSKY

The Upcoming Supreme Court Case of Wyeth v. Levine and the Preemption Temptation: Part One in a Two-Part Series

In Part One of a two-part series of columns, FindLaw columnist and Cardozo law professor Anthony Sebok and FindLaw guest columnist and Fordham law professor Benjamin Zipursky comment on a tort case the Supreme Court will decide during this coming Term. The case involves the doctrine of federal preemption (concerning when federal law overrides state law) and asks the Court to decide whether the FDA has the last word on drug warnings, or whether a State may add additional requirements. Sebok and Zipursky contend that the case has the potential to result in a major ruling curtailing pharmaceutical companies' liability, if the Roberts Court so chooses -- but that it should opt for a narrower approach. Tuesday, Sept. 23, 2008

JOANNE MARINER

A Landmark Torture Trial

FindLaw columnist and human rights attorney Joanne Mariner discusses an upcoming, historic trial -- one that will mark the first time a federal law criminalizing extraterritorial acts of torture is applied. The defendant -- American citizen "Chuckie" Taylor, the son of former Liberian President Charles Taylor -- is accused of having committed horrific human rights abuses when he served as head of Liberia's notorious Anti-Terrorist Unit. Mariner notes that the same law may someday be used to prosecute "war on terror" abuses committed by American citizens (possibly including CIA agents) abroad as well. Monday, Sept. 22, 2008

JOHN W. DEAN

Vice President Dick Cheney's Incredible and Deadly Lie: By Deceiving a Congressional Leader, Cheney Sent Us to War on False Pretenses And Violated the Separation of Powers - as Well as the Criminal Law

FindLaw columnist and former counsel to the president John Dean discusses the ramifications of a recent bombshell news story included in Washington Post reporter Barton Gellman's new book, Angler: The Cheney Vice Presidency. Gellman reports that Vice President Dick Cheney lied to House Majority Leader Richard Armey about the case for going to war in Iraq -- falsely claiming to Armey, in a private meeting, that Iraq was able to miniaturize and thus render portable weapons of mass destruction, including nuclear weapons, and to distribute them through Al Qaeda. According to Gellman, Armey believes that, absent the lie, he would have opposed the war resolution adamantly, and might have stopped the war. Dean explores Cheney's alleged lie from the perspective of how it undermined the separation of powers -- by convincing a highly influential Congressional leader to change his position to that which the Executive wanted him to hold. Friday, Sept. 19, 2008

MARCI HAMILTON

Recent Developments Regarding Clergy Child Abuse: How They Reveal Both Good and Bad News About the Chances of Getting Justice for Abuse Survivors and Preventing Future Abuse

FindLaw columnist and Cardozo law professor Marci Hamilton discusses recent developments relating to the Catholic Church clergy child abuse scandal. In Delaware and California, Hamilton notes, civil statutes of limitations have been abolished so that victims can come forward to press their claims. Yet in Los Angeles, Chicago, and Portland, she contends, bishops have not kept victims foremost in mind; instead, they have used aggressive litigation strategies against victims or refused to name known abusers in their dioceses. Thursday, Sept. 18, 2008

WAJAHAT ALI

Judicial Activism: Playing with the Constitution. An Interview with Constitutional Law Scholar Erwin Chemerinsky on Abortion, the 2nd Amendment, the War on Terror and Guantanamo Bay

In this exclusive interview, Professor Erwin Chemerinsky, one of the country's most renowned, respected and opinionated constitutional law scholars and Dean of the newly established Donald Bren School of Law at the University of California, Irvine, tackles a gamut of questions on the critical legal maelstroms of today. Thursday, Sept. 18, 2008

JULIE HILDEN

Should Oprah Winfrey Invite Sarah Palin on Her Show? Long After the Fairness Doctrine's Demise, An Informal Sense of Media Fairness Remains, But What Should Fairness Look Like?

FindLaw columnist, attorney, and author Julie Hilden discusses the controversy regarding Oprah Winfrey's decision not to have vice-presidential candidate Sarah Palin on her show prior to the election. Since Oprah twice had Barack Obama on her show (albeit before he announced he was running), some observers are questioning whether Oprah's decision is fair and evenhanded -- while others say she has a right to invite her own guests and define her own show. Hilden considers the issue of to what extent private entities should provide fairness in political coverage with reference to the now-abolished "fairness doctrine," by which the Federal Communications Commission once strove to make political debate on television fairer by mechanisms such as a right of reply. Wednesday, Sept. 17, 2008

CARL TOBIAS

Why the Senate Needs to Approve More Judges Before It Adjourns

FindLaw guest columnist and University of Richmond law professor Carl Tobias explains the current situation with respect to the staffing of the federal judiciary -- at both the appellate and district court levels -- and contends that the Senate should make it a priority to address this situation. Tobias faults the Bush Administration for being slow in submitting nominations, but argues that it is still reasonable for the public to expect the Senate to confirm consensus nominees -- such as those who meet with the approval of both their state's Republican and Democratic Senators -- before it adjourns. Wednesday, Sept. 17, 2008

JONNA M. SPILBOR

Is The Recent Spate Of High-Profile Teen Pregnancies, Including Bristol Palin's and Jamie Lynn Spears's, Telling Us It's Time To Alter Statutory Rape Laws?

FindLaw guest columnist, attorney, and television legal commentator Jonna Spilbor considers whether some states' "Romeo and Juliet" exceptions to their statutory rape laws may be too narrow, in light of the realities of teen pregnancy. As Spilbor explains, variance in state laws on this subject leads to anomalous situations; for instance, Bristol Palin and Levi Johnston probably fall into a "Romeo and Juliet" exception, but Jamie Lynn Spears and Casey Aldridge may not. Spilbor also notes that, while these celebrity teens will never be prosecuted for their consensual sex acts, one ordinary teen -- Genarlow Wilson -- was prosecuted, served several years in prison, and was only freed by the intervention of the Georgia Supreme Court. Spilbor calls for statutory rape laws that match modern realities, and a legal approach that worries more about unwanted teen pregnancy, than about teen sex alone. Tuesday, Sept. 16, 2008

SHERRY F. COLB

Abortion, Sarah Palin's Amniocentesis, and the Pro-Life View of Sex

FindLaw columnist and Cornell law professor Sherry Colb offers an interesting and original perspective on the much-talked-about details of GOP vice-presidential candidate Sarah Palin's most recent pregnancy. Palin, who is pro-life, decided to have amniocentesis despite the fact that the procedure poses a significant though small risk of inducing an abortion. Surely, Palin did not believe that by choosing to incur this risk, she consented to an abortion -- which would have gone against her pro-life stance. However, Colb points out that many in the pro-life movement equate risk with consent in another context: that of women's choice to have sex and thus risk pregnancy. Colb considers when and why taking a particular risk is (or is not) deemed to count as consent in a number of legal contexts, ranging from abortion law to tort law to criminal law. Monday, Sept. 15, 2008

VIKRAM DAVID AMAR AND ALAN BROWNSTEIN

How Should the Law Respond When Health Care Providers' Obligations Conflict with their Religious Beliefs? Two Recent Developments That Illuminate the Issue: Part One in a Two-Part Series

FindLaw columnist Vikram Amar and FindLaw guest columnist Alan Brownstein, both U.C., Davis, law professors, discuss the tricky question of how the law should respond when a doctor or other healthcare provider refuses to perform a procedure on a patient or group of patients, and the provider cites his or her religious beliefs as the reason he refuses. In a two-part series of columns, Amar and Brownstein will discuss two contexts in which this question is raised. Here, in Part One, they analyze a recent California Supreme Court case that raises the issue of whether a healthcare provider may cite religious beliefs as grounds for refusing to perform a procedure on a patient who is a lesbian and who is seeking fertility treatment. Friday, Sept. 12, 2008

ANITA RAMASASTRY

An Appeals Court Opens the Door to Judicial Review of the "No Fly" List: A Promising Step Toward Providing Passengers with Due Process

FindLaw columnist and U. Washington law professor Anita Ramasastry discusses a recent, 2-1 decision by a panel of the U.S. Court of Appeals for the Ninth Circuit, holding that federal district courts may review the government's decisions regarding whom to put on the "no fly" list. As Ramasastry explains, previously those who were erroneously placed on the "no fly" list had seemed to have no recourse -- except from the Transportation Security Administration, which administers the list and has been shown to have made over 30,000 mistakes in including people's names on it. Ramasastry praises the panel's decision for allowing travelers to clear their names by going before a judge and jury to show that they do not belong on the list. Thursday, Sept. 11, 2008

MICHAEL C. DORF

What the Iowa Supreme Court's Recent Public Indecency Decision Reveals About Statutory Interpretation

FindLaw columnist and Cornell law professor Michael Dorf discusses a recent, interesting Iowa Supreme Court decision reversing a conviction for indecent exposure. The court held that the following fact situation did not fit the statute's language: A partially-nude man masturbated outside two women's bedroom windows and yelled profanities. The women never saw his nudity, but the police officer who chased and arrested him did. Dorf explains how this case illustrates a perennial conflict within statutory interpretation: Textualists focus on a statute's language, whereas purposivists look to the legislature's likely intent. Here, the statute's language seemed a poor fit with the situation, but it seemed clear that the legislature would have wanted to reach the conduct at issue. Thus, a difference in interpretive philosophy divided the Iowa court. Wednesday, Sept. 10, 2008

ANTHONY J. SEBOK

The Ohio Legislature Wisely Enacts a Law to Supersede an Ohio Supreme Court Decision that Had Limited How Litigation Could Be Funded

FindLaw columnist and Cardozo law professor Anthony Sebok praises a new Ohio statute that supersedes a prior state Supreme Court decision that had rejected non-recourse funding for litigation. As Sebok explains, such funding allows a plaintiff to receive an advance on his expected recovery in a lawsuit, in exchange for giving up his right to the amount of the eventual settlement or jury verdict; the plaintiff keeps the advance even if the verdict is zero. Sebok contends that the concerns about such funding that led the Ohio Supreme Court to reject it were exaggerated, and argues that Ohio should expand its new law to allow non-recourse funding to be used outside the torts context as well. Tuesday, Sept. 09, 2008

JOANNE MARINER

The Strange and Terrible Case of Aafia Siddiqui

FindLaw columnist and human rights attorney Joanne Mariner discusses the case of neuroscientist Aafia Siddiqui, a terrorism suspect who, according to her attorneys, has been a victim of torture. In early 2003, Siddiqui disappeared from her native country, Pakistan, while traveling with her three young children. Her attorneys believe she was kept in Pakistani or U.S. custody until July 2008, when she was revealed to be in U.S. custody in Afghanistan, although the U.S. denies the prior detention. Mariner explains why there is strong reason to doubt the U.S.'s claims as to how Siddiqui and her son came to be in U.S. custody in Afghanistan. In addition, Mariner urges that the federal court now hearing Siddiqui's claims of illegal detention and torture should carefully investigate them, for they are relevant to both her mental state and the integrity of the court's jurisdiction. Mariner also notes that the whereabouts of two of Siddiqui's children, now five and ten years old are unknown, and that her eleven-year-old son, Ahmed, was held -- contrary to international humanitarian law -- by the Afghan intelligence agency, famous for its brutal treatment of those it detains. Monday, Sept. 08, 2008

JOHN W. DEAN

The Sarah Palin Selection: Why McCain's Inexperienced Running Mate Falls Short of Meeting the Implicit Constitutional Qualifications For Vice Presidents

FindLaw columnist and former counsel to the president John Dean argues that the Constitution implies that Vice Presidents -- and thus, candidates for that office -- must have qualifications and experience greater than that of Alaska Governor and GOP vice-presidential candidate Sarah Palin. Drawing on the text and history of the Constitution and related succession statutes, Dean contends that no Congress would have confirmed Palin had she been nominated by a sitting president to fill a vacancy in the office of Vice President. He contends that from this premise, it follows that Palin also should not have been chosen by John McCain to run for the office this November. Friday, Sept. 05, 2008

MARCI HAMILTON

John McCain's Choice of Sarah Palin: What It Says About Him and What It Tells Moderates

FindLaw columnist and Cardozo law professor Marci Hamilton analyzes John McCain's choice of Alaska Governor Sarah Palin as his running mate, in terms of what that choice says about McCain himself. Hamilton contends that the choice of Palin -- as opposed to, for instance, Joe Lieberman or Tom Ridge -- means that McCain has sacrificed his maverick nature in order to move decisively rightward. In particular, Hamilton sees the Palin pick as a sign that McCain will continue Bush policies that threaten the Constitution's church/state line. She also contends that by choosing Palin, McCain gave up the chance he might have had to woo moderates after Barack Obama picked Joe Biden as his running mate. Thursday, Sept. 04, 2008

SHERRY F. COLB

"Neither Shall You Commit Adultery": John Edwards, John McCain, and the Relevance of Politicians' Affairs

FindLaw columnist and Cornell law professor Sherry Colb draws upon Supreme Court precedent, including modern cases interpreting the right to privacy, in her analysis of when politicians' sexual conduct should, and should not, be deemed relevant by voters. For example, while Court precedent may arguably imply that adultery cannot constitutionally be criminalized, Colb notes that it still may be relevant to voters because, whether or not it is criminal, it still constitutes wrongdoing with respect to the betrayed spouse. In contrast, Colb notes, Court precedent suggesting that a consensual homosexual relationship cannot constitutionally be criminalized may have a different import: If the Court considers such conduct private, shouldn't voters, too? Colb also contends that attacks based on candidates' adultery may be more fairly lodged against a candidate such as John McCain -- who has a permissive view of the Establishment Clause, allowing some mixing of religion into public life, and often invokes religion in campaign speeches -- than against a candidate who takes a more strongly secular stance. Wednesday, Sept. 03, 2008

JOANNA GROSSMAN

The California Supreme Court Rules That Fertility Doctors Must Make Their Services Available to Lesbians, Despite Religious Objections

FindLaw columnist, Hofstra law professor, and visiting Vanderbilt law professor Joanna Grossman discusses an important recent California Supreme Court decision that held that, under California law, a doctor or medical practice that generally offers intra-uterine insemination (IUI) to women seeking to become pregnant cannot deny IUI to lesbians on the basis of claimed religious objections. Grossman explains the relevant California law in this area, and how it differs from federal law and the law of other states. Tuesday, Sept. 02, 2008

ANITA RAMASASTRY

A City Tries to Stop a Woman from Linking to Its Website: Why Most Challenges to Links Will Not Succeed, and What the Rare Exceptions May Be

FindLaw columnist and U. Washington law professor Anita Ramasastry discusses an interesting case in which a Michigan woman linked to her city's police department's website, but then received a "cease and desist" order from the city attorney commanding her to de-post the link. The woman filed suit, claiming the order violated her First Amendment rights, and Ramasastry argues that she is correct to deem the order illegal. Ramasastry also covers the range of cases in which links can, and cannot, successfully be challenged -- considering possible ways in which links might violate the law pertaining to copyright, business torts, defamation, criminal threats, and the Digital Millennium Copyright Act (DMCA). Ramasastry also covers the unique problems posed by "deep linking" -- that is, linking to a page other than the homepage of a given site. Tuesday, Sept. 02, 2008

VIKRAM AMAR

An Important Upcoming Supreme Court Case Raises Questions About Both the Fourth Amendment and the Weight of Precedent

FindLaw columnist and U.C., Davis, law professor Vikram Amar discusses an upcoming Supreme Court Fourth Amendment case that calls into question whether the exclusionary rule should be applied in a case in which police made an arrest, and carried out searches incident to it, based on their good faith and reasonable -- but also erroneous -- belief that there was an outstanding warrant for the defendant. As Amar explains, the case also calls into question the rule of stare decisis -- which counsels that the Court should follow its own precedents: One strong reason for stare decisis is reliance on prior law, and it is unlikely criminals rely on the Court's exclusionary rule holdings before deciding whether to commit a crime. Friday, Aug. 29, 2008

EDWARD LAZARUS

A New York Times Study of the Effect of Partisan Selection of Immigration Judges Illustrates Why Vetting Works, and Why Ideology Matters

FindLaw 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. Thursday, Aug. 28, 2008

MICHAEL DORF

Some Potential Legal Implications of an Obama/Biden White House: What Biden's Senate Record Reveals

FindLaw columnist and Cornell law professor Michael Dorf takes an interesting perspective on Vice Presidential candidate Joe Biden's record -- focusing not on Biden's temperament or foreign policy experience, but rather on Biden's service on the Senate Judiciary Committee and his views on judicial confirmation and other law-related issues. As Chair of the Committee, Biden presided over the Bork and Thomas confirmation hearings; Dorf considers how those experiences might influence his views. Dorf also examines Biden's beliefs regarding the proper role of Congress -- including Biden's view that Congress, not just the Supreme Court, may play a legitimate role in defining the contours of certain constitutional rights; and Biden's opposition to unilateral Presidential action regarding "war on terror" issues. Wednesday, Aug. 27, 2008

ANTHONY SEBOK

Could the United States Profit from a Loser-Pays-Winner's-Costs Civil Litigation System? An Online Debate Sheds Light on the Subject

FindLaw columnist and Cardozo law professor Anthony Sebok discusses the proposal that the United States should move to a civil litigation system under which the loser pays the winner's expenses -- a system that is commonplace in many other countries. Sebok describes the phenomenon of negative-value suits, the total costs of which greatly exceed the amount at stake, and the arguments as to whether our system should strongly discourage such suits with rules such as "loser pays." Drawing upon a recent online panel discussion in which he participated, Sebok contends that the lack of empirical evidence is a major factor preventing those who oppose and support tort reform, respectively, from reaching any consensus on the merits of a possible move to a "loser pays" system. Tuesday, Aug. 26, 2008

JOANNE MARINER

A UK Window into CIA Abuses

FindLaw columnist and human rights attorney Joanne Mariner discusses a UK proceeding, scheduled for this week, that may reveal hitherto unknown facts about the treatment of U.S. detainee Binyam Mohamed, and about U.S. interrogation procedures more generally. Mohamed says that, while in secret CIA detention, he endured torture that caused him later, while in military detention, to give false evidence that will be used against him when he faces potential terrorism-related charges before a military commission at Guantanamo. Last week, the UK High Court ruled that the British government, due to the UK's involvement in Mohamed's detention, was under a legal obligation to disclose to Mohamed's defense counsel the information it possesses relating to Mohamed's whereabouts, treatment, and interrogation, since this information may be important to his defense. However, the High Court stopped short of ordering such disclosure, in order to take more time to consider the national security implications of the case. This week, the High Court will once again address Mohamed's case, and may well direct the government to hand over the evidence, unless the UK foreign secretary quickly intervenes. Monday, Aug. 25, 2008

JOHN W. DEAN

Smears and Slurs without Legal Consequences: How the Law Protects Jerome Corsi's Malicious Attacks on Barack Obama, In His Book Obama Nation

FindLaw columnist and former counsel to the president John Dean comments on whether Barack Obama could successfully sue Jerome Corsi based on statements made in Corsi's book attacking Obama, "Obama Nation." Focusing on fifty damaging statements that the Obama campaign has persuasively rebutted as false, Dean explains why, under American defamation law, these statements probably could not form the basis of a successful defamation suit against Corsi. In contrast, Dean contends, John Kerry could and should have sued Corsi based on Corsi's prior book repeating "Swift Boat" allegations against Kerry. Dean also suggests that, when the law provides no recourse against damaging falsities like those in "Obama Nation," it may be time to modify the law. Friday, Aug. 22, 2008

MARCI A. HAMILTON

The Ninth Circuit, Sitting En Banc, Attempts to Clarify the Definition of "Substantial Burden" Under the Religious Freedom Restoration Act (RFRA): The Navajo Nation Decision

FindLaw columnist and Cardozo law professor Marci Hamilton discusses a recent Ninth Circuit en banc decision, ruling against Navajo tribes that claimed a right to halt the creation of artificial snow for ski slopes on federally-owned land, on the ground that the snow was interfering with the exercise of their religion. Hamilton contends that, while the dissent's view is a sympathetic one, the majority was correct in ruling against the tribes, in light of Supreme Court precedent in this area. She also argues that the Religious Freedom Restoration Act, which the tribes invoked, should not apply in the context of federal lands. Thursday, Aug. 21, 2008

JOANNE MARINER

Military Commissions, So Far

FindLaw columnist and human rights attorney Joanne Mariner discusses the 19 military-commission trials that will now follow on the heels of the recent trial of Salim Hamdan. As Mariner explains, the upcoming 19 trials will present allegations much more serious than those that had been made about Hamdan and another detainee who had been scheduled for a military-commission trial, but pled guilty. In particular, the seven trials in which the government will seek the death penalty concern men alleged to have been major figures in terrorist activities, including 9/11 and earlier bombings targeting U.S. personnel. Mariner describes a number of flaws in the Hamdan trial that could undermine both the appearance and the reality of justice, if they are repeated in these and other high-stakes, upcoming military-commission trials as well. Wednesday, Aug. 20, 2008

JOANNA GROSSMAN

Can a Woman be Fired for Absenteeism Related to Fertility Treatments? A Federal Court of Appeals Says No.

FindLaw columnist and Hofstra law professor Joanna Grossman discusses an interesting recent decision by the U.S. Court of Appeals for the Seventh Circuit, interpreting the Pregnancy Discrimination Act (PDA). In the case, a female employee was fired after she had taken two leaves to complete in vitro fertilization treatment (IVF) -- which commonly requires time off from work for women who undergo it. Grossman explains why the Seventh Circuit held that to fire an employee due to IVF-related absenteeism violates the PDA, despite the fact that infertility, unlike pregnancy, is a condition experienced by men and women alike. Tuesday, Aug. 19, 2008

JULIE HILDEN

A Plea Is Entered in an Obscenity Prosecution Against a Sexual Abuse Victim Who Posted Her Writings About Abuse on the Internet: Should the Federal Government Be Prosecuting Words As Obscenity?

FindLaw columnist, attorney, and author Julie Hilden discusses the unusual -- and, she argues, disturbing -- case of Karen Fletcher, who posted her writings regarding child sexual abuse on the Internet, was charged with breaking federal obscenity laws, and now has entered a guilty plea. Fletcher says she is a survivor of abuse, and that the writings were therapeutic for her. Prosecutors, however, expressed fear that abusers might copy the acts Fletcher described. Hilden contends that this rare prosecution for written obscenity, as opposed to obscene images, fits into a general societal trend of bending or breaking the law in order to reach child abusers. In addition, Hilden argues that -- while the judge and prosecutors made comments suggesting they were proceeding on the theory that Fletcher's writings advocated or constituted a manual for abuse -- this case fell far short of the standard under which speech advocating or describing unlawful conduct can sometimes be suppressed. Monday, Aug. 18, 2008

VIKRAM AMAR

The Federal Deposit Insurance Corporation: With Banks Failing or In Peril, It's Especially Important Now to Understand and Reform this Crucial Institution

Many Americans have a simple understanding about FDIC deposit insurance: You can only deposit $100,000 at a particular bank and count on its being insured. However, as FindLaw columnist and U.C., Davis, law professor Vikram Amar explains, that understanding -- which is causing many Americans to do business at multiple banks to make sure all the money they have saved is insured --- is inaccurate in important respects. Through trust accounts and joint accounts, Amar notes, Americans can insure much more than $100,000 at a single bank; he thus encourages readers to consult and understand the FDIC's complex rules on the subject before deciding where to deposit their savings. Amar also suggests avenues for reforming the FDIC's practices so they can better serve their intended purpose of giving Americans security and the economy stability. Friday, Aug. 15, 2008

EDWARD LAZARUS

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

FindLaw 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. Thursday, Aug. 14, 2008

SHERRY COLB

Is Obama "Pro-Infanticide"? Analyzing a Vote in the Illinois Senate

FindLaw columnist and Cornell law professor Sherry Colb discusses claims that Senator Barack Obama opposed an Illinois law that would have banned infanticide, and thus that he must be "pro-infanticide." Colb points out that Obama has supported a federal anti-infanticide law. She also explains that the Illinois law Obama opposed possessed serious flaws that the federal law did not possess -- and that, as a result of its flaws, the Illinois law put abortion rights in serious jeopardy. Wednesday, Aug. 13, 2008

ANTHONY SEBOK

Should State Attorneys General Use Private Law Firms to Pursue Civil Suits? An Appeal to the California Supreme Court Raises This Hot-Button Issue

FindLaw columnist and Cardozo law professor Anthony Sebok discusses a very interesting appeal that the California Supreme Court has opted to hear. The appeal raises the question whether California cities may retain private firms on a contingency-fee basis to sue on their behalf in litigation against the lead paint industry -- as opposed to relying on the services of city attorneys or private firms paid on an hourly basis. Sebok explains the key California Supreme Court precedent in this area, and explains why the court might, and might not, choose to follow that precedent under these circumstances. Tuesday, Aug. 12, 2008

ANITA RAMASASTRY

Saying Goodbye to Your Cellphone Carrier Just Got Cheaper, Thanks to a California Ruling: Why the Court's Decision was Correct, but Is Only Part of a Longer Story

FindLaw columnist and U. Washington law professor Anita Ramasastry discusses a recent preliminary ruling from a California court holding that a cellphone carrier's contracts with customers are illegal insofar as they impose early termination fees. As Ramasastry explains, contracts may included "liquidated damages" clauses providing a realistic estimate of the damages that will follow if one party breaches the contract, but they cannot include illegal "penalties" for breach that are not connected to actual or expected damages. The court found, on the evidence heard so far, that early-termination fees constitute penalties. However, as Ramasastry explains, cellphone carriers have a number of options now, in addition to simply abolishing the fees -- such as seeking federal intervention and prorating the fees based on how early the customer terminates the contract. Tuesday, Aug. 12, 2008

MICHAEL DORF

If the Government Plans to Hold Salim Hamdan Indefinitely, Despite His Sixty-Six Month Sentence, What Was the Point of Putting Him on Trial?

FindLaw columnist and Cornell law professor Michael Dorf comments on the various options for employing either military detention or criminal punishment in the "war on terror" -- focusing especially on the case of Salim Hamdan. Hamdan, who had served as Osama bin Laden's driver, was recently sentenced to serve sixty-six months in prison as a result. Because Hamdan has already served most of that time as a detainee at Guantanamo, he may soon be eligible for release. But will the government release him? Dorf comments on why it might, or might not. Monday, Aug. 11, 2008

JOHN DEAN

Judge Bates Slams the Bush White House's Claims of Congressional Immunity: Why There May Be No Consequences for the White House, Despite the Clear Ruling

FindLaw columnist and former counsel to the president John Dean comments on the recent ruling by Judge John D. Bates of the U.S. District Court for the District of Columbia in the case in which the House of Representatives seeks to enforce subpoenas for testimony and documents from former White House Counsel Harriet Miers and Chief of Staff Jonathan Bolten, in relation to the allegedly politicized firing of a series of U.S. Attorneys. Dean commends Bates for not only ruling in favor of the House, but also adopting the kind of no-nonsense tone in his opinion that sends a clear message. Dean notes, however, that despite the firmness of the opinion, the upcoming election may well end up mooting the pending subpoenas before they can be enforced. Friday, Aug. 8, 2008

MARCI HAMILTON

In Colorado Christian University v. Weaver, the U.S. Court of Appeals for the Tenth Circuit Adopts the Incorrect Theory that Religious Individuals Are Entitled to Exemptions from Generally Applicable Laws

FindLaw columnist and Cardozo law professor Marci Hamilton discusses a recent decision from the U.S. Court of Appeals for the Tenth Circuit, authored by Judge Michael McConnell. The decision held that the State of Colorado cannot give scholarships to Colorado college students generally, yet exclude those students attending a school that is "pervasively sectarian," as defined by the state. Hamilton puts the decision in the context of both related Supreme Court precedent and the evolution of American conservatism, and contends that the related claim that religious institutions are entitled to receive funding whenever secular institutions do is both politically mistaken and legally wrong. Thursday, Aug. 7, 2008

SHERRY COLB

Is Sex a "Major Life Activity"? Why a Claim of Disability Discrimination Turns on the Answer to this Question

FindLaw columnist and Cornell law professor Sherry Colb discusses a case in which a plaintiff sued for disability discrimination when she was initially accepted by the Foreign Service, but then rejected when she subsequently was diagnosed with treatable breast cancer. As Colb explains, under the Rehabilitation Act, a condition only qualifies as a covered disability if it substantially limits a major life activity. As a result, this particular plaintiff was able to come under the Act's protection only because she was able to allege that the combination of surgery and medication harmed her sexual life. Colb explains how this seemingly odd result derives from the legal rules regarding who is (and who is not) covered by disability law. Wednesday, Aug. 6, 2008

ANTHONY SEBOK

Massachusetts' Supreme Judicial Court Embraces the "Loss of a Chance" Doctrine: Why This Key Torts Decision May Convince Other State Supreme Courts to Follow Suit

FindLaw columnist and Cardozo law professor Anthony Sebok discusses a recent decision by the highest court in Massachusetts, the Supreme Judicial Court (SJC), adopting the "loss of a chance" doctrine. As Sebok explains, the "loss of a chance" doctrine, in this context, means that a plaintiff may recover damages if a doctor's malpractice leads him to lose the chance of surviving cancer, even when it is far from certain he would have survived even had he received the proper diagnosis and treatment. Sebok explains why legal academia embraced the "loss of a chance" doctrine, from both the perspective of deterrence and that of corrective justice, and why the SJC and the highest courts of a number of other states have followed suit. However, Sebok also points out some troubling inconsistencies in tort law regarding causation and the recovery of damages that still remain after the SJC's decision. Tuesday, Aug. 5, 2008

JULIE HILDEN

A Federal Appeals Court Invalidates the Federal Communications Commission's Massive Fine for the "Nipplegate" Super Bowl Incident: The Decision and Its Implications

FindLaw columnist, attorney, and author Julie Hilden analyzes the decision last month by the U.S Court of Appeals for the Third Circuit to strike down the $550,000 fine the FCC had imposed on CBS for the 2004 Super Bowl broadcast, during which Janet Jackson's breast was briefly exposed. Hilden explains why the decision -- which turned on whether CBS had notice of the new FCC "indecency" policy at the relevant time in 2004 -- won't assist today's broadcasters. She also explains why, after the ruling, speech on network television by independent contractors like Jackson and Timberlake may be more free than speech by network employees. Monday, Aug. 4, 2008

VIKRAM AMAR and ALAN BROWNSTEIN

Does Recognition of the Right of Same-Sex Couples to Marry Impose Undue Burdens on People Who Reject Same-Sex Marriage on Account of Religious Convictions? An Evaluation of This Objection to the Massachusetts and California Same-Sex Marriage Decisions

FindLaw columnist Vikram Amar and FindLaw guest columnist Alan Brownstein -- both U.C., Davis, law professors -- discuss one common objection to the Massachusetts and California decisions recognizing same-sex marriage: that their implications may compromise the rights of those whose religious beliefs hold that homosexuality is immoral. For example, some same-sex marriage opponents fear that religious institutions will now have to extend insurance benefits to same-sex couples, as they do to opposite-sex couples. Amar and Brownstein argue, however, that such concerns are best addressed by seeking legislative exemptions, not by opposing same-sex marriage itself. They also contend that there are strong parallels between laws and doctrines protecting people from discrimination based on sexual orientation, and discrimination based on religious belief, respectively -- suggesting that there is common ground to be found here. Friday, Aug. 1, 2008

EDWARD LAZARUS

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

FindLaw 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. Thursday, Jul. 31, 2008

MARK H. ALLENBAUGH

Keeping Consumers Safe from Defective Imported Products: After a Year of Executive and Congressional Investigations, Testimony, and Posturing, Are We Any Safer?

FindLaw columnist and attorney Mark H. Allenbaugh discusses how America can better ensure the products it imports are safe. As Allenbaugh explains, after a series of recalls of defective products from China, including products for children, both the Executive Branch and Congress sought solutions -- through The President's Interagency Working Group on Import Safety, Operation Guardian, and the bipartisan Consumer Product Safety Commission Reform Act, which is expected to soon become law. However, Allenbaugh argues that the only approach that will truly be effective remains untried: ensuring that American companies, through tradeshows or on their own, provide training and followup in China to ensure that the Chinese companies whose goods they import follow procedures that guarantee product safety. Wednesday, Jul. 30, 2008

MICHAEL DORF

What California's Trans Fat Ban Teaches Us About Federalism

FindLaw columnist and Cornell law professor Michael Dorf offers an interesting new perspective on the decision by California to join New York City and a few other jurisdictions in banning the use of trans fats: Dorf contends that the ban illustrates why it has proven impossible to remain true to the Framers' original vision of federalism in our modern, highly-nationalized economy. Dorf tracks the evolution of the Supreme Court's federalism jurisprudence, and explains why a conservative movement on the Court that was once hailed as a "federalism revolution" has, in retrospect, had only a modest effect. He also considers Justice Clarence Thomas's views on federalism, and how they contrast with those of other conservatives on the Court. Tuesday, Jul. 29, 2008

JOANNE MARINER

Debating Human Rights and Counterterrorism in Britain

FindLaw columnist and human rights attorney Joanne Mariner describes the ongoing debate in Britain regarding proposed legislation that would alter the law on detention without charge. Drawing upon a Human Rights Watch report, Mariner explains why both conservatives and liberals have expressed opposition to the U.K.'s proposed new law. In addition, she points out that the proposed law would not only extend the period of detention from 28 days to 42 days, but also, if the power to detain a suspect were repeatedly reauthorized, could lead to a much longer period of "rolling" detention, composed of numerous 42-day periods. Finally, she suggests solutions that could remedy the serious rights issues the bill raises. Monday, Jul. 28, 2008

JOHN DEAN

Congressman Kucinich's Impeachment Resolution, the Parallel to Nixon, and Why Even Nixon's Defenders Finally Abandoned Him

With the House Judiciary Committee holding a hearing today on "Executive Power and Its Constitutional Limitations," FindLaw columnist and former counsel to the president John Dean contends that the Bush Administration's abuses of power are so extreme, they should cause not just Congressional Democrats -- like Dennis Kucinich, who has proposed an impeachment resolution -- but also Republicans to turn against the Administration. Dean draws a parallel to the crimes of President Nixon, explaining why and how Nixon's lying caused even his staunch supporters to change their minds in the end. Friday, Jul. 25, 2008

MARCI HAMILTON

The United States Senate Judiciary Committee Holds Hearings on Polygamy Crimes: What Needs to Be Done at the Federal Level to Protect Children from Abuse and Neglect

FindLaw columnist and visiting Princeton law and public affairs professor Marci Hamilton draws upon written testimony she recently submitted to Congress to present a set of concrete, innovative proposals of ways the federal government can change the law to better protect children from abuse and neglect. Hamilton's proposals range from an alteration of the RICO laws to reach institutions that foster child abuse, to the denial of tax-exempt status to such institutions, to Congress' putting pressure on the states to abolish the statutes of limitations for criminal and civil abuse complaints. Thursday, Jul. 24, 2008

JULIE HILDEN

Defamation and the Internet: How the Law Effectively Allows Bloggers to Take Risks Big Media Companies Can't, and How Companies Can Work to Level the Playing Field

FindLaw columnist, attorney, and author Julie Hilden comments on how the defamation law landscape is changing as newspapers increasingly find it hard to attract advertising dollars, newsrooms shrink, and major media companies' main presences become their websites. Hilden contends that, as major companies' news sites increasingly compete with smaller sites and even individual bloggers, there will be a gap in defamation exposure: Defamation suits that could yield large verdicts, if the defendant is a media company, will not be worth bringing against shallow-pocketed individuals and sites. As a result, blogs and smaller sites' coverage will predictably be edgier. Hilden suggests a way in which major media companies can level the playing field: use more independent contractors, whose writing will not be directly ascribed to the company for purposes of defamation law. Wednesday, Jul. 23, 2008

JONNA SPILBOR

Flying Solo: Five Key Lessons I Learned From Starting My Own Practice

FindLaw guest columnist, attorney, and "Kelly's Court" legal commentator Jonna Spilbor reveals the advantages she enjoyed and the risks she took in recently deciding to found her own solo legal practice. From her own experience, Spilbor derives five key lessons for aspiring solo practitioners, covering topics ranging from budgeting, to choosing an office, to tailoring that office to your own needs and preferences, to hiring an assistant, to finding clients, to keeping those clients happy. Tuesday, Jul. 22, 2008

SHERRY COLB

With the Spanish Parliament Poised to Extend "Human Rights" to Great Apes, What are the Implications for Human Beings and Other Animals?

FindLaw columnist and Cornell law professor Sherry Colb considers the implications of the Great Ape Project (GAP), which observers predict will soon succeed in making protection of the Great Apes the law of Spain. Colb agrees with the GAP that the Great Apes deserve protection, and offers a strong response to the common objection that we should be worrying about human rights, not animal rights. However, she also points out issues regarding the reasons why the Great Apes alone are being protected. For example, should greater intelligence and the capacity to use tools be a reason to protect the Great Apes, but not other nonhuman animals -- despite the fact that they all suffer and feel pain? Monday, Jul. 21, 2008

JULIE HILDEN

Why A Federal Judge Was Right to Dismiss Former Congressman Gary Condit's Most Recent Defamation Suit Against Journalist Dominick Dunne For Comments Relating to Chandra Levy's Murder

FindLaw columnist, attorney, and author Julie Hilden discusses a federal district judge's decision this month to dismiss a defamation suit by former Congressman Gary Condit against veteran journalist Dominick Dunne. The suit was based on comments by Dunne in 2005 on "Larry King Live" suggesting that Condit knows more than he has ever said about the 2001 murder of D.C. intern Chandra Levy. Hilden argues that the judge was correct to dismiss the suit on the basis that Dunne's statements were opinion, not fact, and thus were First-Amendment-protected. However, she contends that Dunne has been walking a thin First Amendment line in his comments, over the years, regarding Condit and the Levy case. Friday, Jul. 18, 2008

EDWARD LAZARUS

What the Past Term Reveals About the Roberts Court: Evidence that the Court Is Disturbingly Elitist and Anti-Democratic

FindLaw 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. Thursday, Jul. 17, 2008

MICHAEL DORF

The Application for an ICC Warrant to Arrest Sudanese President Al Bashir on Charges of Genocide: An Important But Potentially Counterproductive Symbolic Gesture

FindLaw columnist and Cornell law professor Michael Dorf discusses the decision this week by Luis Moreno-Ocampo, the Prosecutor for the International Criminal Court (ICC), to request an arrest warrant for the President of the Sudan, Omar Hassan Ahmad Al Bashir. As Dorf explains, there is little question that Al Bashir has indeed committed the offenses the warrant will describe: genocide, crimes against humanity, and war crimes against much of the civilian population of Darfur. But will the issuance of a warrant improve or worsen the situation? Dorf explains why issuing a warrant for Al Bashir may actually do more harm than good.Wednesday, Jul. 16, 2008

JOANNA GROSSMAN

Going to the Dogs? Leona Helmsley's Dog, Trouble, Has Her Trust Slashed, but the Rest of the Nation's Dogs May be Sitting Pretty

FindLaw columnist and Hofstra law professor Joanna Grossman discusses the law surrounding the much-maligned multi-billion-dollar trust that hotel magnate Leona Helmsley created for the care and feeding of her dog, Trouble. Grossman explains why a court reduced Trouble's trust, but also why a large share of Helmsley's billions may go to charities devoted to the care and feeding of dogs generally.Tuesday, Jul. 15, 2008

DOUGLAS KMIEC

The Use of Executive Privilege Must Be Reined In: Problematic Claims of Privilege Regarding the U.S. Attorney Firings and Torture Policies

FindLaw guest columnist and Pepperdine law professor Douglas Kmiec comments on the recent clashes between Congress and the Bush Administration regarding compliance with subpoenas for testimony as to which the Administration has asserted executive privilege. Last week, Karl Rove refused to honor a House subcommittee subpoena for his testimony regarding an inquiry into whether wrongful pressure was brought upon U.S. Attorneys in the prosecution of former Democratic Arkansas governor Don Siegelman. Previously, the testimony of Rove, Harriet Miers, and Joshua Bolten was sought in connection with the related scandal regarding allegations that U.S. Attorneys' firings were politicized. Kmiec discusses the evolution of executive privilege, and contends that it should be using sparingly -- in cases involving genuine national security issues, not issues such as those involved in the U.S. Attorney-related scandals.Monday, Jul. 14, 2008

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