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
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
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
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
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