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May-June 2004
HEADLINES: May-June 2004

In a June 18 New York Times story about the Sept. 11 Victim Compensation Fund, Kenneth S. Abraham questioned whether the fund should even have been created but acknowledged that he has the benefit of hindsight. In September 2001, he said, "we did feel like these were people who, in a certain sense, had made a sacrifice for the country. I think the next time it happens, we may realize that sometimes you're just unlucky and that being unlucky is not making a sacrifice."

Richard Bonnie was quoted in a June 14 Reuters News article about an Oklahoma jury's refusal to impose the death penalty on bombing conspirator Terry Nichols. That and other recent high-profile cases, he noted, demonstrated the inconsistencies in the application of capital punishment. "Public opinion has been influenced by a drop in crime rates as well as recent cases highlighting mistakes that were made," he said. "People are feeling more secure. But if there was a significant increase in crime, you would probably see support for the death penalty go up again."

Rosa Brooks wrote an op-ed piece in the May 9 Los Angeles Times about the Bush administration's repeated assertions that the executive branch of the U.S. government is free to ignore both the laws of war and the U.S. Constitution. "The president should accept direct responsibility for having created a climate of impunity in which the Abu Ghraib abuses were likely to occur, if not inevitable," she wrote. "Bush needs to acknowledge that even in time of war, human rights and the rule of law must be respected." In an article on the torture scandal in the May 14 Guardian, she said "The attitude that was communicated started from the highest levels and was sent on down the chain. It created an overall climate in which adversaries were dehumanised, the distinction between suspect and known perpetrator was effaced, and the overall message was that international law or domestic niceties get in the way of doing quote 'what we had to do'." In a commentary in the June 6 Minneapolis Star Tribune, Brooks wrote: "If 'I did not have sex with that woman' was enough to merit the impeachment of Bill Clinton, then surely conspiracy to commit war crimes should be adequate reason for Congress to consider impeachment proceedings against George W. Bush."

In a June 2 Associated Press story about a ruling that evidence overheard by a father picking up the telephone was inadmissible in a child molestation case against his daughter's gymnastics coach, Earl Dudley said that Virginia's wiretapping law would have been broken if police investigated the case using only the father as a source. But because the daughter came forward on her own, the law should not apply, he said. "My instinct, without having done any research, is that the argument doesn't fly. But if the judge buys it, they've got a winner."

A. E. Dick Howard was quoted in a June 18 CNN.com story about the drafting of the U.S. Constitution. "We're talking about a constitution that is in its third century. That's really quite remarkable among any of the nations of the world," he said. "It suggests an essential stability of our political system that many may envy but not many can emulate. Because the issues debated at the convention were very contentious and very divisive, it's easy to imagine that people of lesser stature could have foundered, that the whole enterprise might have died."

John Jeffries was quoted in a June 14 National Law Journal article about the competition among law schools to hire and retain top law professors. "I think every law school has a few people that everybody else would like to have," he said. Noting that Virginia has been on a lucky streak, not losing anyone in the last several years and stealing some stars away from others, he added "I think we're doing pretty well."

Michael Klarman was featured in several sources in connection with his recent book From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality. Writing in the May 3 Nation, Klarman discussed the background and impact of Brown v. Board of Education: "The Justices in Brown did not think they were creating a movement for racial reform; they understood that they were working with, not against, historical forces. . . . Brown mattered, but it did not fundamentally transform the nation; Supreme Court decisions never do. The Justices are too much a product of their time and place to launch social revolutions." On May 17, the 50th anniversary of the Brown decision, he appeared on NPR's "Morning Edition" and "Talk of the Nation" programs and wrote in a New York Times op-ed piece:  "It was the beating of peaceful black demonstrators by Southern white law enforcement officers—many of whom were carried into office by the wave of racial fanaticism that swept Southern politics after Brown—that repulsed national opinion and led to the passage of landmark civil rights legislation." The same day in the Dallas Morning News, he discussed the impact Jackie Robinson's integration of major league baseball had on the Supreme Court justices. "You can be sure they all knew about it," he said. "Several were big baseball fans and went to games in the district. Jackie Robinson to some extent laid the groundwork."

In a June 3 New York Times story about the New York attorney general's fraud lawsuit against a major drug manufacturer, Richard Merrill compared the suit to product-liability lawsuits by individuals and noted that it was the first by a public official against the drug industry.

Jennifer Mnookin wrote a commentary on fingerprint evidence in the May 29 Washington Post, arguing that "the science of fingerprinting is surprisingly underdeveloped. We lack good evidence about how often examiners make mistakes, nor is there a consensus about how to determine what counts as a match. Our current approach to fingerprint evidence, in which experts claim 100 percent confidence in any match, is dangerously flawed and risks causing miscarriages of justice." She also commented on fingerprinting in the June 4 Wall Street Journal, saying "we don't know what the error rate is, which is extremely troubling. Fingerprints are highly individuating, but the concern is that partial prints can resemble someone else's. We don't know how often that happens; the research hasn't been done."

John Norton Moore was quoted in a May 19 New York Times article about administration policy excluding military lawyers from supervising interrogations in the Iraq war. Lawyers had played a significant role in the first Gulf War, he said. "We had JAG officers at all of the detention facilities where interrogations took place," said Moore, noting that the current Bush administration seems less concerned with legal standards than its predecessors. In the June 1 Los Angeles Times, he discussed the stalled ratification of the Law of the Sea treaty. "There is not a single sovereign right of the United States that is conceded in this treaty," he said. "This is about as clear a case of a treaty strongly in the interest of the United States as I've ever seen." In the June 14 National Law Journal, Moore discussed the appellate decision overturning a $959 million award for former prisoners of war tortured during the 1991 Gulf War and dismissing the lawsuit for failure to state a cause of action. "This is a critical issue in the protection of our POWs from torture in the future," he said. "It becomes even more so in light of this very unfortunate Iraq prison-abuse scandal. The Geneva Convention is very clear: Under Article 131, you cannot absolve a torturing state of any liability."

In a May 30 Baltimore Sun article about the publication of the Sept. 11 commission report by a private company, Robert O'Neil said "My sense is that under these circumstances, a commission or a committee or agency is probably wiser to trust a trade publisher than to use government dissemination because the trade publisher is accustomed to taking extraordinary precautions to keep valuable property from becoming public or leaking before the official publication date." In the June 25 Chronicle of Higher Education, O'Neil wrote an article about the privacy status of electronic communications on campuses:  "At first glance, it might seem that messages sent by electronic or digital means should be as private as those conveyed through more-traditional media. . . . Yet e-mail communication is inescapably different—and in obvious ways that would make a claim for perfectly parallel treatment seem naïve. Save for those few that are encrypted, most e-mail messages consist of plain text, and as University of Virginia policies wisely warn users, 'they are like postcards in that others might view the messages in transit or those left in plain view.'"

Daniel Ortiz was quoted in a June 27 Roanoke Times & World News article about a new Virginia law banning civil unions. He explained that he has written to Governor Mark Warner urging him to veto the legislation. One of the problems with the law, he said, is that it does not distinguish between rights exclusive to marriage—being able to file a joint tax return, for example, or not being forced to testify against one's spouse—and other nonexclusive rights such as power of attorney agreements or medical directives. In the June 30 Washington Times, he said the law's broad language "goes far beyond civil unions and addresses regular contracts and property arrangements" and explained that an elderly woman could not ask her granddaughter to make medical decisions for her without breaking the law, because both parties in the contract are female.

G. E. White's recent book, Alger Hiss's Looking-Glass Wars: The Covert Life of a Soviet Spy, was featured in several reviews and other articles. In the June 13 Baltimore Sun, White discussed The Nation's campaign to discredit scholars who have argued that Hiss was guilty  "My conclusion is that the charge was on the whole political and deliberate on the part of The Nation to muddy the water." A June 25 New York Law Journal review referred to the book as "an inspired portrayal of a man's life and a dispassionate analysis of the forces that motivated that life," and a June 27 Washington Times review said that White had "produced a scholarly, dramatic and exhaustive study which is compelling in interest and bids fair to be the final, authoritative judgment on this famous politico-legal melodrama."

Timothy Wu wrote an article in the April 9 Slate Magazine on the citation of foreign cases in U.S. constitutional opinions. "There is such a thing as the misuse, and even the illegal use, of foreign law by American courts," he wrote. "Were the Second Circuit Court of Appeals to announce a legal obligation to obey the European Court of Human Rights, most (though not all) international lawyers would join the crowds storming the Bastille. But the Supreme Court simply hasn't done that: It has not deferred to or followed foreign cases in statutory or constitutional cases." He compared foreign law citations to a rap shout-out paying respects to other artists:  "The judicial shout-out, while without legal meaning, is a useful courtesy. If you're the world's senior constitutional court, it doesn't hurt to reach out to those more junior courts, and say, 'we hear ya,' even if we proceed to ignore their reasoning." In the May 10 Wall Street Journal, Wu discussed the growth of web-based TV and how it is changing the way programming is watched and sold. He suggested that cable companies that sell both Internet signals and TV programming should be required not to downgrade their Internet signal as a way of protecting their cash-cow TV business.


KENNETH S. ABRAHAM
* "The Price of Life After 9/11," June 18, 2004, The New York Times.

RICHARD BONNIE
* "Anti-Death Activists Buoyed by Nichols Verdict," June 16, 2004, Reuters News.

ROSA EHRENREICH BROOKS
* "Did Administration Officials Conspire to Violate War Crimes Act?" (author; requires log-in), June 6, 2004, Minneapolis Star Tribune.
* "U.S. Forces Were Taught Torture Techniques," May 14, 2004, The Guardian.
* "A Climate That Nurtures Torture" (requires log-in) (author), May 9, 2004, Los Angeles Times.

EARL C. DUDLEY JR.
* "Judge Tosses Evidence From Overheard Conversation," June 2, 2004, Associated Press/Richmond Times-Dispatch. 

A.E. DICK HOWARD
* "We the people...," June 18, 2004, CNN.com.

JOHN C. JEFFRIES JR.
* "Star Power: Top Law Professors Are a Hot Commodity, and Schools Are Scrambling to Keep Them," June 14, 2004, National Law Journal.

MICHAEL J. KLARMAN
* "Robinson's Effect Felt Beyond Baseball," May 17, 2004, Dallas Morning News.
* "The Legacy of Brown v. Board of Ed.," May 17, 2004, NPR "Morning Edition."
* "Crossing the Color Line," May 17, 2004, NPR "Talk of the Nation."
* "Better Late Than Never" (author), May 17, 2004, The New York Times.
* "Brown vs. Board of Education: 50 Years Later/1954 Ruling Seen as Model of Judicial Activism/Landmark Segregation and Gay Nuptial Cases Have Similarities," May 17, 2004, San Francisco Chronicle.     
* "Still Striving Toward A More Perfect Union," May 16, 2004, Los Angeles Times.
* "A Mortal Wound to Heart of Jim Crow," May 16, 2004, Houston Chronicle.
* Report on 50th anniversary of the Brown v. Board of Education decision, May 10, 2004, Voice of America.
* "Walking Toward Brown," May 7, 2004, Legal Intelligencer.
* "Did Brown Matter?" May 3, 2004, New Yorker.
* "It Could Have Gone the Other Way: At the Time, the Justices Had Doubts that Brown Was Rightly Decided" (author), May 3, 2004, The Nation.
* "Why Brown Still Matters," May 3, 2004, The Nation.
* "Walking Toward Brown," May 3, 2004, Legal Times.

RICHARD A. MERRILL
* "Spitzer Sues a Drug Maker, Saying It Hid Negative Data," June 4, 2004, The New York Times.

JENNIFER MNOOKIN
* "All The Fear That's Fit To Print," June 6, 2004, St. Petersburg Times.
* "Despite Its Reputation, Fingerprint Evidence Isn't Really Infallible," June 4, 2004, The Wall Street Journal.
* "The Achilles' Heel of Fingerprints" (author), May 29, 2004, The Washington Post.

JOHN NORTON MOORE
* "Going after Iraq, and Losing—in U.S. Court," June 14, 2004, National Law Journal.
* "U.S.: Right-Wing Republicans Sinking Law Of The Sea—Again," June 2, 2004, IPS-Inter Press Service.
* "Conservative Opposition Leaves U.N. Accord in Dry Dock," June 1, 2004, Los Angeles Times.
* "U.S. Barred Legal Review of Detentions, Lawyer Says," May 19, 2004, The New York Times.

ROBERT O'NEIL
* "Who Owns Professors' E-Mail Messages?" (author) June 21, 2004, Chronicle of Higher Education.
* "Private Firm Is Set to Publish Final Report by 9/11 Commission," May 30, 2004, Baltimore Sun.

DANIEL R. ORTIZ
* "Gay Rights Backers Rally in City," July 1, 2004, The Daily Progress.
* "New Ban on Gay Unions to Begin/Homosexuals Set to Protest," June 30, 2004, The Washington Times.
* "Gays Fear New State Law Banning Civil Unions Could Go Much Further/Some People Say the Law Could Be Used to Invalidate Wills, Joint Bank Accounts, Insurance Benefits, Business Agreements and Even Medical Directives," June 27, 2004, The Roanoke Times.

ROBERT E. SCOTT
* "David Schizer Likely Choice For New Law Dean At Columbia," May 20, 2004, New York Sun.

ROBERT F. TURNER
* "New Padilla Info Not Part of Court Case," June 2, 2004, Associated Press/The New York Times.
* "Courts-Martial Differ From Civilian Trials," May 12, 2004, Newhouse News Service.

G. EDWARD WHITE
* "Examining the Inner World of Improbable Spy, Alger Hiss," June 27, 2004, The Washington Times.
* "Lawyer's Bookshelf," June 25, 2004, New York Law Journal.
* "Cold War Figure Still Looms Over Washington," June 13, 2004, Baltimore Sun.

TIMOTHY WU
* "Web TV Is Changing the Way Programming Is Watched and Sold," May 10, 2004, The Wall Street Journal.



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