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Legal Commentary |
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FindLaw columnist and former counsel to the president John Dean discusses the "elitist" label, especially as it has recently been applied to likely Democratic presidential candidate Barack Obama. Dean begins by taking a look at Obama's background, which he contends was hardly elite or elitist. He then considers the ways in which allegations of elitism have been used by Republican presidential candidates against their Democratic counterparts in recent history, typically with great success, despite the fact that both parties' candidates have equally belonged to elites. Dean also suggests, however, that the "elitist" label may work less well than usual this election season, as the candidates vie to succeed a highly unpopular Republican president whose actions have often sparked charges of incompetence.
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FindLaw columnist and visiting Princeton law and public affairs professor Marci Hamilton comments on the "Evangelical Manifesto," a statement written by a group of evangelical Christians seeking to change the meaning of the term "evangelical" from the one it has acquired during first the Clinton and then the Bush Administrations. Hamilton lauds some aspects of the statement -- including its emphasis on solving social problems with a careful consideration of the common good, and its acknowledgment that the public square properly includes many voices, not only religious ones. However, she criticizes the statement's attempt to redefine a word it did not mint.
Thursday, May. 15, 2008
FindLaw columnist and visiting Columbia law professor Sherry Colb considers a provocative question: The Genetic Information Nondiscrimination Act (GINA), which prohibits employers and insurance companies from discriminating on the basis of a person's test results showing her predisposition to certain illnesses, has enjoyed across-the-board support in Congress and is poised to be signed by President Bush. Yet a hypothetical parallel law telling insurance companies not to discriminate based upon pre-existing conditions would doubtless prove extremely controversial. What accounts for the difference? To explain this sharp contrast, Colb draws upon the theories of philosopher John Rawls, whose work asks us to imagine that we must make decisions behind a "veil of ignorance" -- that is, in a state in which we do not know what our own attributes (including sickness or health) will be.
Wednesday, May. 14, 2008
FindLaw columnist Joanna Grossman and FindLaw guest columnist Mitchell Gans, both Hofstra law professors, continue their two-part series on the trusts and estates law questions arising from the recent, untimely death of the actor Heath Ledger. In this column, Part Two, Grossman and Gans consider which jurisdiction's law may apply with respect to pivotal questions regarding Ledger's will and estate -- with the possibilities including California, New York, and Australia. Their analysis leads to the interesting result that, even though Ledger's daughter Matilda was not mentioned in his will (which preceded her birth), she is still likely to inherit Ledger's entire estate.
Tuesday, May. 13, 2008
FindLaw columnist Joanna Grossman and FindLaw guest columnist Mitchell Gans, both Hofstra law professors, begin their two-part series on the trusts and estates law questions arising from the recent and untimely death of the actor Heath Ledger. In this column, Grossman and Gans explain why Ledger's daughter Matilda could inherit his entire estate even though she was omitted from his will (probably inadvertently, as it was written prior to her birth). Yet they also note that, in an odd twist, if tabloid reports that Ledger fathered another daughter, prior to the will's writing, are accurate, then both that daughter and Matilda may be left without legacies.
Monday, May. 12, 2008
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.
Friday, May. 09, 2008
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
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