FindLaw Writ - Recent Articles

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

Thurs, July 2 2009 00:00:01 GMT

Many business travelers have been frustrated with long post-9/11 airport security lines. As a result, the Transportation Security Administration (TSA) had begun to partner with the private sector company CLEAR � launched in 2005 by publishing entrepreneur Steve Brill -- to offer some travelers the chance to become "registered travelers" and breeze through TSA airport security checkpoints by showing a special card. To qualify, travelers had to go through background checks and pay more than a hundred dollars as an annual fee. At last count, there were some 165,000 CLEAR members. (There are other vendors too; CLEAR was the largest, and FLO Corp. the second largest, in the U.S.) In late June, however, CLEAR announced on its website that it will close down, leaving registered travelers with a useless card and possibly no refund of their membership fee. CLEAR's parent company, Verified Identity Pass, stated that it was "unable to negotiate an agreement with its senior creditor to continue operations."...

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

Thurs, July 2 2009 00:00:01 GMT

Last week, the U.S. Supreme Court handed down its decision in Melendez-Diaz v. Massachusetts. The Court held that the prosecution may not introduce into evidence a sworn certificate showing the results of forensic analysis (specifically, the fact that a seized substance was cocaine) without triggering the defendant's Sixth Amendment right to confront the witnesses against him. This holding means that if the analyst who certified forensic test results will not appear at trial, then the trial court must exclude the certificate. Though Justice Scalia's majority opinion expressed great confidence in this result, the dissenting opinion (which reflected the views of four Justices) was equally disdainful of it. The combination of the two exposes a startling lack of consensus among the Justices about the constitutional status of hearsay, a basic feature of interpreting a core protection in the Bill of Rights....

The Supreme Court Decides the New Haven Firefighter Case

Wed, July 1 2009 00:00:01 GMT

Just before adjourning on Monday, the Supreme Court handed down the most closely-watched case of the current Term: Ricci v. DeStefano. Ricci posed a genuinely difficult question of employment discrimination law: When can an employer -- in this instance, the New Haven fire department -� toss out the results of a promotion test because those results favor white over minority applicants? The Court ruled 5-4 for the eighteen white (including one Hispanic) firefighter plaintiffs. The majority held that an employer can invoke fear of "disparate impact" litigation by minority applicants as a defense to a charge that discarding the results was itself an act of unlawful discrimination. However, the lead opinion written by Justice Kennedy announced that the defense is only available where the employer has a "strong basis in evidence" for fearing disparate impact liability. The majority further found that the record in Ricci did not meet this standard....

Obama's New Euphemism

Tues, June 30 2009 00:00:01 GMT

The Bush administration will no doubt be remembered for torture, Guantanamo, and Abu Ghraib, as well as for catchy euphemisms like "enhanced interrogation" and histrionic catch-phrases like "the Global War on Terror." The Obama administration has introduced a new lexicon that includes words like "fairness," "values," and "the Constitution." But there are worrying signs, as the new government's policies develop, that its change in vocabulary is more striking than its change in ideas....

Supreme Court Bans Judge Buying

Mon, June 29 2009 00:00:01 GMT

This month, the United States Supreme Court held, in a close decision, that the Constitution forbids a litigant from paying to elect a judge who will hear that litigant�s pending case. It might surprise readers that no federal law bars such a purchase of justice, but that is indeed the case � as long as the purchase comes through campaign contributions, not an outright bribe. Surprisingly, this decision was not a foregone conclusion, and its result upset many, including the Chief Justice of the United States. Yet the Constitution could hardly have afforded anything less. Justice cannot be so easily bought or sold....

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

Thurs, June 25 2009 00:00:01 GMT

It is never pretty watching a public figure fall from grace, whether you agree or disagree with that person's politics, and South Carolina Governor Mark Sanford is in freefall. Most recently, a South Carolina newspaper, The State, revealed explicit love-letter emails (on June 24, 2009 and June 25, 2009) between the Governor and his Argentinean lady-friend. The emails have placed him somewhere between frustrated Lothario and a national joke. His political opponents are calling for his resignation. His presidential aspirations are history....

The Supreme Court Curtails Federal Protection Against Age Discrimination

Thurs, June 25 2009 00:00:01 GMT

Last week, the Supreme Court issued a 5-4 ruling that will make it more difficult for some older workers to succeed in proving age discrimination by their employers. In Gross v. FBL Financial Services, Inc., the Court held that employees suing under the Age Discrimination in Employment Act (ADEA), unlike those suing for race or sex discrimination under Title VII, cannot make use of the "mixed-motive" theory that makes it easier to prove discrimination when there is evidence of both legitimate and illegitimate motives for an adverse employment action....

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

Wed, June 24 2009 00:00:01 GMT

Last month, in People v. Weaver, the New York Court of Appeals, the highest court of New York State, held that before attaching a GPS device to a suspect's car and continuously monitoring the car's whereabouts for 65 days, the police should have obtained a search warrant....

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

Tues, June 23 2009 00:00:01 GMT

Recent cases applying the federal Religious Freedom Restoration Act (RFRA) and its cousin, the Texas Religious Freedom Restoration Act (TRFRA), underscore that these laws are simply wrongheaded, not to mention dangerous....

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

Mon, June 22 2009 00:00:01 GMT

Recently, The New York Times reported on the court battle between famously reclusive "Catcher in the Rye" author J.D. Salinger, and the Swedish writer known as "J.D. California" (real name: Fredrik Colting). The fight focuses on Colting's novel "60 Years Later: Coming Through the Rye" which is subtitled "An Unauthorized Fictional Examination of the Relationship Between J. D. Salinger and His Most Famous Character." The novel was published earlier in Britain. This suit concerns plans to publish it in the United States....

What is Fair Game for the Sotomayor Hearings?

Fri, June 19 2009 00:00:01 GMT

As preparation for Judge Sonia Sotomayor's Senate hearings begins in earnest, it is important for us all to think carefully about what legitimate and meaningful questioning by the Senate should look and sound like. In this column, I offer some observations on what should be considered fair game, and what should not....

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

Thurs, June 18 2009 00:00:01 GMT

The recent economic crisis in the United States has been so severe that we are now experiencing something that has happened only a few times in history: zero interest rates. In a phenomenon technically known as a "liquidity trap," the monetary authorities have pushed the interest rate that they control essentially as low as it can go, yet the economy still needs more stimulus....

The Obama Administration Defends the Defense of Marriage Act

Wed, June 17 2009 00:00:01 GMT

Last week, the Justice Department filed a motion to dismiss a lawsuit by a married same-sex couple from California. The suit by Arthur Smelt and Christopher Hammer sought to invalidate the Defense of Marriage Act ("DOMA"), a federal law enacted in 1996 that has two key provisions: Section 2 authorizes states that do not themselves permit same-sex marriage to deny recognition to legal same-sex marriages performed in other states; and Section 3 defines marriage for purposes of federal law as encompassing "only a legal union between one man and one woman as husband and wife."...

Leaving Guantanamo

Tues, June 16 2009 00:00:01 GMT

If this were the Eighteenth Century, the Uighur detainees at Guantanamo would have been sent to Australia. Instead, four of them were just sent to Bermuda, and thirteen others await possible resettlement in Palau. Five were sent to Albania in 2006. Members of an oppressed Turkic minority from Xinjaing province in western China, the Uighurs have been cleared to leave Guantanamo for some time, yet they cannot be returned home for fear of persecution. Last October, a federal judge ordered their release into the United States, finding that they were innocent of any connection to terrorism, and that the local Uighur community was eager to assist in their reintegration into society....

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

Tues, June 16 2009 00:00:01 GMT

Earlier this month, the Federal Trade Commission (FTC) convinced a Northern California district court judge to grant a temporary restraining order (TRO) against Pricewert, which operates the Internet Service Provider (ISP) Triple Fiber Network (3FN). The FTC alleges that Pricewert and 3FN recruit, distribute, and host electronic code or content that inflicts harm upon consumers -- including "child pornography, botnet command and control servers, spyware, viruses, Trojans, phishing related sites, illegal online pharmacies, investment and other web-based scams, and pornography featuring violence, bestiality and incest."...

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

Fri, June 12 2009 00:00:01 GMT

No official announcement has been made that the Obama Administration is not going to prosecute anyone � other than a few low-level soldiers who photographed themselves and already have been prosecuted � for torturing detainees in our so-called war on terror. But it has become clear that President Obama's announced desire to look forward, not backward, embodies such a decision. Still, we must all hope that the Obama Administration makes more than a non-decision type of decision, and does not merely resolve the matter by silence and inaction. There are, in fact, precedents, and studies, that illuminate the grave problems confronting a democracy in making a choice when faced with the options of prosecuting and punishing versus forgiving and forgetting. I discovered this material some years ago when studying authoritarian governance....