 |
|
|
|
Legal Commentary |
 |
|
FindLaw columnist, attorney, and author Edward Lazarus argues that it is anomalous for presidential candidate John McCain to decry what he claims is liberal judicial activism and promise to appoint more conservative federal judges, in light of the fact that the Supreme Court is now conservative-dominated. Lazarus contends that there are so few examples of true liberal judicial activism nowadays, that McCain has been forced to rely on two that are strikingly weak: a federal appellate holding that the Supreme Court ultimately vacated, regarding the words "under God" in the Pledge of Allegiance; and the Court's holding on the juvenile death penalty, which simply put a few outlier States in line with the rest of the States and most of the rest of the world. Lazarus suggests that with a conservative Supreme Court solidly in place, McCain would be better served by dropping this non-issue, and moving on from old rhetoric to new approaches that better reflect pressing, genuine modern conflicts such as the one between liberty and security.
|
FindLaw columnist and U.C., Davis, law professor Vikram Amar discusses the larger meaning of the Supreme Court's recent, fractured decision upholding Indiana's voter identification law, in terms of what the decision may reveal about the Court and its Justices. Amar focuses, in particular, on how the decision exemplifies Chief Justice Roberts's difficulty in achieving his stated goal of forging more agreement on the Court, how it illuminates Justice Alito's jurisprudential philosophy, and how it continues a trend in which the Court has proved hostile to "facial challenges" -- that is, challenges that target a law "on its face" and not in the context of a single constitutionally- objectionable application.
Thursday, May. 08, 2008
FindLaw guest columnist, attorney, and Homeland Security Director for the Government Accountability Project Jesselyn Radack offers a new angle on an important case in which an Islamic charity, Al-Haramain, has sued to challenge the NSA's use of warrantless telephone surveillance. As Radack explains, a number of cases have challenged the NSA warrantless surveillance program for violating the Foreign Intelligence Surveillance Act and raised issues of the scope and applicability of the state secrets privilege. Yet this case is different in an important way: Al-Haramain can prove it was the target of surveillance, because the Department of Justice inadvertently sent the charity a log of the calls surveilled, and the use of security precautions regarding the log in the course of litigation may have caused DOJ attorneys to violate ethics rules by barring an attorney for the charity from appellate briefing and overseeing staff who destroyed an attorney's hard drive.
Thursday, May. 08, 2008
FindLaw columnist and Columbia law professor Michael Dorf assesses the positions of presidential candidates Clinton, McCain, and Obama regarding a "gas tax holiday" -- which Clinton and McCain support, and Obama opposes. After careful analysis of the economics of the tax holiday proposal, Dorf concludes that Obama is right to oppose it, for, he says, it cannot be justified as a policy matter. However, Dorf expresses doubt about whether Obama's stance is as wise as it is principled, for in democracies, he notes, proposals that appear effective, even when they are not, may still succeed in winning votes from those who hope and believe they will benefit.
Wednesday, May. 07, 2008
FindLaw columnist and Cardozo law professor Anthony Sebok comments on an interesting and important decision recently issued by the First Department of New York's Appellate Division. As Sebok explains, unless the Court of Appeals -- New York's highest court -- rules otherwise, this decision will mean that the Port Authority will have to pay 100 percent of the damages suffered by a group of victims of the 1993 Word Trade Center bombing, even though a jury ruled that the bombers themselves also were significantly at fault. Sebok explains how the appellate decision reached this result, and considers the argument that the Port Authority made on appeal: that the jury was "manifestly unreasonable" to find that the Point Authority was 68% at fault (and thus 100% responsible for damages) and the terrorists 32% at fault for the attack.
Tuesday, May. 06, 2008
FindLaw columnist and human rights attorney Joanne Mariner discusses evidence of the U.S.'s practice of rendition to torture -- that is, of sending detainees to other countries to be held and interrogated, knowing full well that the detainees will be tortured there. Mariner notes that this practice clearly violates international law, including the U.S.-ratified Convention Against Torture. She also points to cases of rendition in which the CIA supposedly obtained assurances that torture would not occur, but it occurred anyway. She argues that, in practice, such assurances are merely a fig leaf to cover up a brutal, illegal practice of which the CIA is well aware. In addition, she contends that U.S. courts should welcome rendition victims seeking a remedy and yearning to be heard; to date, courts have turned them away instead.
Monday, May. 05, 2008
FindLaw columnist and former counsel to the president John Dean contends that presumptive GOP presidential nominee John McCain's claims to be a conservative in the tradition of Barry Goldwater are far off the mark. Dean, who recently co-authored a book on Goldwater with Goldwater's son, Barry Jr., explains why he believes that Goldwater had negative views of McCain, and contrasts Goldwater's and McCain's views of and approaches to government.
Friday, May. 02, 2008
FindLaw columnist and visiting Princeton law and public affairs professor Marci Hamilton takes on critics of the Texas authorities' handling of the raid on the Fundamentalist Latter Day Saints compound there -- which revealed evidence of multiple instances in which adult men had impregnated underage girls. Hamilton contends that critics of the raid are flat-out wrong to claim the raid was invalid because the authorities relied upon a source who, unbeknownst to them, may not have been who she claimed; the question, she says, is whether the authorities knowingly erred, and there is no evidence of that. in addition, Hamilton argues that there is no genuine religious freedom issue because religious motivation is no defense to criminal behavior.
Thursday, May. 01, 2008
FindLaw columnist and visiting Columbia law professor Sherry Colb discusses the Supreme Court's recent oral argument regarding whether it is constitutional to impose the death penalty for the rape of a child. As Colb explains, the oral argument revealed that several of the Justices appear to differ in their interpretation of the precedential effect of a prior Court decision, which held unconstitutional the imposition of the death penalty for the rape of an adult woman. Moreover, the argument indicated how Chief Justice Roberts and Justice Ginsburg view the evolution of society's views on the crime of rape itself.
Wednesday, Apr. 30, 2008
FindLaw columnist and Cardozo law professor Anthony Sebok, and FindLaw guest columnist and Loyola Chicago law professor Spencer Weber Waller, discuss the new antitrust law reforms the European Union is contemplating. Sebok and Waller contrast the EU's proposals with the system currently in place for private plaintiffs to bring antitrust claims in the U.S. -- including the U.S.'s current class action rules. They also note the irony that even as class actions and other pro-plaintiff measures are coming under fire in the U.S., they are, at the same time, seeming quite attractive to EU regulators, who fear that antitrust law is seriously underenforced in Europe.
Tuesday, Apr. 29, 2008
| | --- |
| |
|
|
