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Legal news from Wednesday, March 30, 2005

Connecticut lawmakers uphold death penalty
Chris Buell on March 30, 2005 9:00 PM ET

[JURIST] The Connecticut House of Representatives [official website] on Wednesday voted down legislation that would have eliminated the death penalty in the state. Legislators opposed the bill [text] by a 89-60 margin as the state's first execution in 45 years scheduled to take place in May. The bill would have replaced the death penalty with life in prison without the possibility of release. The bill would have taken serial killer Michael Ross and six others off death row. AP has more.

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UN Security Council vote on Sudan war crimes tribunal delayed
Chris Buell on March 30, 2005 8:29 PM ET

[JURIST] The UN Security Council vote on whether to refer war crimes in the Darfur region of Sudan has been delayed after a US request, UN representatives said Wednesday. A vote had been expected on a French resolution that would refer war crimes trials to the International Criminal Court [official website], but the US said it wanted to suggest several changes. France agreed to delay the vote until Thursday at the earliest. The US has opposed France's resolution and has sought exemption for some US nationals from prosecution. A US veto of the resolution would likely be frowned upon, however, since the US sought to have the Darfur atrocities referred to the Security Council. The Security Council voted on Tuesday to impose sanctions [Reuters report] on Sudan, a move opposed [JURIST report] by the Sudanese government. AFP has more.

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MA Senate OKs stem cell research bill
Chris Buell on March 30, 2005 7:40 PM ET

[JURIST] The Massachusetts Senate [official website] Wednesday approved by an overwhelming margin a bill to loosen restrictions on scientists conducting stem cell research. The measure, which would allow cloning of embryos from which stem cells can be extracted for research, passed by a 35-2 margin. Despite the Senate passage, the bill's future remains uncertain. The bill needs at least two-thirds majority support in the House to overcome an almost certain veto by Gov. Mitt Romney [official profile]. Romney has adamantly opposed [Boston Globe report] the bill, calling it a "radical cloning bill." Supporters of the legislation argue that it will help find new treatments and cures for diseases. Read Senate Bill No. 25 [text]. AP has more.

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Supreme Court considers "supermax" prison assignments
Jeannie Shawl on March 30, 2005 4:53 PM ET

[JURIST] The US Supreme Court [official website] heard oral arguments Wednesday in Wilkinson v. Austin [Duke Law School case backgrounder], a case where the Court is considering what procedures are needed to protect a prisoner's due process rights when prison officials seek to place the prisoner in a "super-maximum security" facility. Ohio is challenging a 6th Circuit ruling [PDF text] that prisoners are entitled to hearings with witnesses before being assigned to a "supermax" facility, where inmates are held in 23-hour-a-day-lockdown, face tighter security and are allowed less access to phones and personal items. Ohio Attorney General Jim Petro [official profile] told the Supreme Court that prisoners transferred to Ohio's supermax facilities are given adequate notice and information about the reason for the move and said that "The government needs to have the capacity to make the best possible decision based on a wide variety of factors." Arguing on behalf of Ohio inmates, University of Pittsburgh law professor Jules Lobel [academic profile], also Vice President of the New York-based Center for Constitutional Rights, told the Court that Ohio's policy only requires correctional officials to give "vague reasons" for transfers to the extremely restrictive facilities, which is insufficient to protect prisoners' due process rights. The ABA provides merit briefs filed by both sides in the case and CCR has a press release on Wednesday's Supreme Court arguments. AP has more.

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BREAKING NEWS ~ Federal appeals court refuses rehearing in Schiavo case
Jeannie Shawl on March 30, 2005 3:24 PM ET

[JURIST] AP is reporting that the US Eleventh Circuit Court of Appeals has again refused to conduct a full court rehearing in the Terri Schiavo case.

3:35 PM ET - The Eleventh Circuit has denied Bob and Mary Schindler's request for a new hearing en banc [petition text (PDF), JURIST report] on whether a feeding tube for their brain-damaged daughter Terri Schiavo [JURIST news archive] should be reconnected on the alleged likelihood of success for their case in a federal de novo review. A majority of 11th Circuit judges voted against holding a rehearing, and Judge Stanley Birch wrote a concurrence addressing the constitutionality of Pub. L. 109-3 [text, JURIST report], the bill passed by Congress allowing the federal courts to review Schiavo's case. Birch writes:

A popular epithet directed by some members of society, including some members of Congress, toward the judiciary involves the denunciation of "activist judges." Generally, the definition of an “activist judge” is one who decides the outcome of a controversy before him according to personal conviction, even one sincerely held, as opposed to the dictates of the law as constrained by legal precedent and, ultimately, our Constitution. In resolving the Schiavo controversy it is my judgment that, despite sincere and altruistic motivation, the legislative and executive branches of our government have acted in a manner demonstrably at odds with our Founding Fathers’ blueprint for the governance of a free people - our Constitution. Since I have sworn, as have they, to uphold and defend that Covenant, I must respectfully concur in the denial of the request for rehearing en banc. I conclude that Pub. L.109-3 ("the Act") is unconstitutional and, therefore, this court and the district court are without jurisdiction in this case under that special Act and should refuse to exercise any jurisdiction that we may otherwise have in this case.
Birch wrote that Congress violated separation of powers principles by "arrogating vital judicial functions to itself" and prescribing a "rule of decision." He concluded:
The separation of powers implicit in our constitutional design was created "to assure, as nearly as possible, that each branch of government would confine itself to its assigned responsibility." INS, 462 U.S. at 951, 103 S. Ct. at 2784. But when the fervor of political passions moves the Executive and the Legislative branches to act in ways inimical to basic constitutional principles, it is the duty of the judiciary to intervene. If sacrifices to the independence of the judiciary are permitted today, precedent is established for the constitutional transgressions of tomorrow. See New York, 505 U.S. at 187, 112 S. Ct. at 2434. Accordingly, we must conscientiously guard the independence of our judiciary and safeguard the Constitution, even in the face of the unfathomable human tragedy that has befallen Mrs. Schiavo and her family and the recent events related to her plight which have troubled the consciences of many. Realizing this duty, I conclude that Pub. L. 109-3 is an unconstitutional infringement on core tenets underlying our constitutional system. Had Congress or the Florida legislature, in their legislative capacities, been able to constitutionally amend applicable law, we would have been constrained to apply that law. See Robertson v. Seattle Audobon Soc’y, 503 U.S. 429, 441, 112 S. Ct. 1407, 1414 (1992). By opting to pass Pub. L. 109-3 instead, however, Congress chose to overstep constitutional boundaries into the province of the judiciary. Such an Act cannot be countenanced.
A second concurrence, written by Judges Ed Carnes and Frank Hull, addressed the Schindlers' arguments about the sufficiency of evidence presented in the Florida courts:
Even assuming that this type of sufficiency of the evidence issue is a proper one for an en banc determination, there is no substantial question in this case about whether a rational factfinder could have found, as the Florida court did, that there was clear and convincing evidence that Mrs. Schiavo would not have wanted nutrition and hydration continued in these circumstances. Given the credibility determinations that the state trial court was authorized to and did make, the evidence clearly was sufficient to meet the clear and convincing evidence standard, which the Florida courts had imposed and did apply in this case.
Judge Gerald Tjoflat, joined by Judge Wilson, dissented from the denial of rehearing en banc. Tjoflat wrote:
The plaintiffs have now stated a plausible claim that the Due Process Clause of the Fourteenth Amendment requires clear and convincing evidence of an individual’s wishes before a state court may order withdrawal of life-sustaining nutrition, hydration, or other medical attention....

The relevant question here is whether a rational factfinder could have found by clear and convincing evidence that Mrs. Schiavo would have wanted nutrition and hydration to be withdrawn under these circumstances. The plaintiffs carry a heavy burden, but I do not believe that this question can be determined in this expedited fashion without a hearing on the merits.
Responding to Judge Birch's assertions that the court lacks jurisdiction to hear the dispute, Judge Tjoflat wrote:
This is not a case, to use separation-of-powers parlance, of Congress "arrogating" power to itself, nor is it a case in which one branch of government has "impair[ed] another in the performance of its constitutional duties." Loving v. United States, 517 U.S. 748, 757 (1996) (emphasis added). Instead, Congress has prescribed a particular approach to a particular problem in the general domain of federal jurisdiction, without presuming to dictate—in any respect—our performance of a court’s essential function: "to say what the law is." Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) (Marshall, C.J.)....

Here, Congress has attempted only what has long been established to be within its power to dictate: our standard of review, the effect of a prior state court judgment on that review,6 the application of prudential abstention doctrines, and
the effect of exhaustion requirements. I know of no case barring Congress from so dictating, and Judge Birch does not cite any. Indeed, quite to the contrary, Judge Birch cites cases establishing that both our abstention and exhaustion doctrines are prudential. See ante, at 10. If none of these dictates by itself goes beyond Congress’s power to determine the jurisdiction of federal courts, I know of no doctrine that could convert their aggregation into a separation-of-powers violation. [footnotes omitted].
Read the full court's denial [PDF text, includes concurrences and dissent] of the petition for an expedited rehearing. AP has more.

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Federal judge says Bush plot suspect can be examined for signs of torture
Jeannie Shawl on March 30, 2005 2:30 PM ET

[JURIST] US District Judge Gerald Bruce Lee ruled Wednesday that Ahmed Abu Ali, the man charged with plotting to assassinate President Bush [JURIST report], can be examined by doctors to determine whether there is any evidence that Abu Ali was tortured while being held in Saudi Arabia. Abu Ali has pleaded not guilty [JURIST report] to charges [DOJ indictment, PDF] that he conspired to and did provide material support and resources to al Qaeda. Abu Ali has claimed that he was tortured during his detention in Saudi Arabia, and Judge Lee said Wednesday that Abu Ali must inform the court by April 25 if he plans to introduce evidence of torture as part of pre-trial motions or during the trial. Reuters has more.

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Iraq constitution draft could be delayed by wrangling over government
Jeannie Shawl on March 30, 2005 1:42 PM ET

[JURIST] Ongoing disputes among Iraqi National Assembly members over governmental nominations [JURIST report] could delay the drafting of Iraq's constitution by as much as six months, several lawmakers say. The National Assembly is currently scheduled to have a first draft of a constitution prepared by August 15, but cannot begin work on the constitution until a government is selected and installed. Under the Transitional Administrative Law [text], a delay is allowed if it is proposed by the Iraqi president and approved by a majority vote of the assembly before August 1. Wednesday's New York Times has more.

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Sudan rejects UN sanctions resolution as "unbalanced"
Jeannie Shawl on March 30, 2005 1:01 PM ET

[JURIST] Sudan's Ministry for Foreign Affairs [official website] Wednesday called yesterday's UN Security Council [official website] sanctions resolution "unbalanced and inappropriate," saying it "ignored the government's efforts in addressing the political, security and humanitarian aspects of the Darfur conflict." The Security Council voted 12-0 [Reuters report] (with China, Russia and Algeria abstaining) to impose travel bans and asset freezes on those who violate the Darfur cease-fire and those responsible for atrocities against civilians. The resolution also strengthens the arms embargo on Sudan and forbids the government from offensive military flights into the Darfur region. Despite its objections the resolution, the Sudanese government said Wednesday that it would deal with the resolution in accordance with its moral and legal responsibility towards its people and "do everything possible to secure an immediate and comprehensive settlement to the conflict in Darfur." AFP has more.

In a related story, the UK parliament's International Development Committee [official website] released a report Wednesday that concludes that as many as 300,000 people have died during the Darfur conflict [JURIST news archive]. The report, Darfur, Sudan: The responsibility to protect [PDF text], also urges the UN to extends arms embargo on Sudan and refer Darfur war criminals to the International Criminal Court [official website]. Reuters has more.

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Top US commander in Iraq authorized extreme interrogation tactics
Jeannie Shawl on March 30, 2005 12:56 PM ET

[JURIST] Army Lt. Gen. Ricardo Sanchez, once the top US commander in Iraq, authorized harsh prisoner interrogation tactics, according to a 2003 memo obtained and released by the ACLU [ACLU press release] under its ongoing Freedom of Information Act requests for government documents on torture [document list]. In his September 2003 memo [text, via ACLU], Sanchez authorizes 29 interrogation techniques, including the presence of military working dogs because it "exploits Arab fear of dogs." Several of the authorized interrogation techniques go beyond the scope of the Army's field manual, which is designed to adhere to Geneva Convention [ICRC backgrounder] rules. The Sanchez memo does note that the Geneva Conventions "are applicable" and that detainees should be treated humanely. A subsequent October 2003 Sanchez memo [text, via ACLU] describing interrogation policies has also been released. Reuters has more.

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Corporations and securities brief ~ AIG admits to improper accounting
Amit Patel on March 30, 2005 12:30 PM ET

[JURIST] Leading Wednesday's corporations and securities law news, American International Group Inc. (AIG) [corporate website] announced it will delay its SEC filing of its quarterly results and also that it had found documentation of illegal transactions with General Re Corp, the center of the probes by the SEC and New York Attorney General Eliot Spitzer [official website]. AIG said it would need more time to review its books indicating there would be a downward revision in previously stated shareholders' equity. AIG said it would file the report on April 30. Read the AIG press release. AP has more.

In other news...

  • House Financial Services Committee Chairman Michael Oxley [official website] and Capital Markets Subcommittee Chairman Richard Baker [official website] wrote a letter to SEC Chairman William Donaldson [SEC biography] stating the SEC must pass a rule which allows brokers to charge customers fees based on their account assets. The two representatives want to avoid duplicative regulation on brokers. Read the joint press release. CBSMarketWatch has more.

  • One week after settling its claims arising from its role as an underwriter for WorldCom for $2 billion, JP Morgan Chase [corporate website] was granted its motion to dismiss a securities class action lawsuit arising from its dealings with Enron [corporate website; JURIST Hot Topic news archive]. The decision, In Re JP Morgan Securities Litigation, said plaintiffs failed to meet the standard of proof required in a securities class action. Plaintiffs claimed JP Morgan misstated its financial transactions with Enron, thereby perpetuating Enron's fraud. The New York Law Journal has more.

  • San Francisco investment bank Thomas Weisel Partners [corporate website] announced a $1.75 million settlement with the National Association of Securities Dealers (NASD) [corporate website] over its initial public offering practices. The payment settles allegations that Weisel received unusually high trading commissions from its customers in exchange for share allocations of popular IPOs. Morgan Stanley [corporate website] and Bear Stearns Cos. [corporate website] settled similar charges last year. Read the NASD press release. CBSMarketWatch has more.

  • Alexei Pichugin [trial website], the former security chief of Russian oil giant Yukos [corporate website; JURIST Hot Topic news archive], was sentenced to 20 years in jail for murder and attempted murder. Pichugin was allegedly ordered to murder two people at the behest of Leonid Nevzlin, a shareholder in Yukos and friend of chief executive Mikhail Khodorkovsky [JURIST Newsmaker news archive]. Pichugin will appeal his conviction. Read a summary of Pichugin's conviction. BBC News has more.

  • Hewlett-Packard Co. (HP) [corporate website] has named Mark Hurd as its new CEO and president replacing ousted Carly Fiorina. Read the HP press release. AP has more.

  • US District Court Judge Dickinson Debevoise ruled copycat manufacturers, Teva Pharmaceuticals Inc. [corporate website] and Ranbaxy Laboratories Ltd. [corporate website], of generic versions of Pfizer Inc.'s Accupril blood pressure drug must halt their sales. The judge found in favor of Phizer Inc. [corporate website] because it was likely to win a patent infringement lawsuit filed against Teva and Ranbaxy. Phizer said it will seek to recover damages from lost sales. Teva and Ranbaxy said they would appeal the judgment. Read the Phizer press release. Read the Ranbaxy press release. Reuters has more.
Click for previous corporations and securities law news.

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BREAKING NEWS ~ Supreme Court rules in age discrimination suit
Jeannie Shawl on March 30, 2005 10:20 AM ET

[JURIST] The US Supreme Court handed down a decision Wednesday morning in Smith v. City of Jackson [case backgrounder from Duke Law School], ruling that workers over the age of 40 need not show proof of discriminatory intent in lawsuits brought under the Age Discrimination in Employment Act [text]. Read the court's majority opinion [PDF text], per Justice Stevens, along with Justice O'Connor's concurrence [PDF text] and Justice Scalia's concurrence [PDF text]. Chief Justice Rehnquist took no part in the decision. AP has more.

10:40 AM ET -- The Supreme Court also handed down decisions in two other cases Wednesday morning. In Exxon Mobil v. Saudi Basic Industries [Duke law school case backgrounder], the Court ruled that the Rooker-Feldman doctrine, which prevents lower federal courts from sitting in direct review of state court decisions, is confined to cases brought by state court losers complaining of injuries caused by state court judgments rendered before federal district court proceedings commenced and inviting district court review and rejection of those judgments. The court held that Rooker-Feldman does not otherwise override doctrines allowing federal courts to stay or dismiss proceedings in deference to state-court actions. Read the Court's unanimous opinion [PDF text], written by Justice Ginsburg.

In Rhines v. Weber [Duke Law School case backgrounder], the Court ruled that a federal court district court has discretion to stay (rather than being compelled to dismiss) a habeas corpus petition which includes exhausted and unexhausted claims, in order to allow a petitioner to present his unexhausted claims to the state court in the first instance and then to return to federal court for review of his perfected petition. Read the Court's opinion [PDF text] per Justice O'Connor, along with Justice Stevens' concurrence [PDF text] and Justice Souter's concurrence [PDF text].

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New misconduct lawsuit filed against former Hollinger CEO
Jeannie Shawl on March 30, 2005 10:10 AM ET

[JURIST] Hollinger Inc., the Canadian holding company with an interest in the newspaper publisher Hollinger International, filed a $636 million lawsuit Tuesday against former CEO Conrad Black and other former executives. Hollinger is seeking damages for Black's alleged diversion of corporate opportunities [Hollinger press release], breach of fiduciary duties and oppression and is demanding reimbursement for management fees and non-competition payments allegedly misappropriated to Black and his private firm, Ravelston. Black and Hollinger currently face civil charges filed by the US Securities and Exchange Commission [PDF complaint; JURIST report]. The SEC alleges that Black, former Hollinger president David Radler and Hollinger "engaged in a fraudulent and deceptive scheme to divert cash and assets from [parent company] Hollinger International." Black's other legal problems include a US criminal probe into his conduct [JURIST report] and a $425 million looting lawsuit filed by Hollinger International. Black is also pursuing a $1.1 billion libel suit [JURIST report] against the Hollinger International special committee that prepared a report accusing Black of looting the company [JURIST report]. Canadian Press has more on the latest lawsuit.

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Federal judge bars US from sending detainees abroad without notice
Jeannie Shawl on March 30, 2005 10:07 AM ET

[JURIST] US District Judge Henry Kennedy [official profile] issued a preliminary injunction Tuesday ordering the military to give detainees' lawyers 30 days' notice before transferring a detainee from Guantanamo Bay [JURIST news archive] to the custody of foreign governments, allowing time for the transfer to be challenged. After considering whether US courts have jurisdiction to oversee decisions about where to move Gitmo detainees [JURIST report], Judge Kennedy said he was preventing transfers without advance notice to bar the government from "unilaterally and silently taking actions" to move detainees outside the reach of US courts. Read Judge Kennedy's memorandum opinion [PDF text] and order [PDF text]. The Washington Post has more.

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Gitmo review tribunals wrap up; 38 detainees ordered released
Jeannie Shawl on March 30, 2005 10:05 AM ET

[JURIST] The Defense Department said Tuesday that Combatant Status Review Tribunals [DOD backgrounder] for all Guantanamo Bay [JURIST news archive] detainees have been completed. Navy Secretary Gordon England [official profile], who has overseen the CSRT process, announced that 38 of 558 detainees were determined not to be "enemy combatants" and were ordered released from the Cuban naval base without compensation. Gordon used Tuesday's press briefing [DOD transcript] to defend both the detention of terror suspects and the CSRTs as complying with the Supreme Court's 2004 decision in Hamdi v. Rumsfeld [PDF opinion; JURIST report]:

First, the basis of detaining captured enemy combatants is not to punish but, rather, to prevent them from continuing to fight against the United States and its coalition partners in the ongoing global war on terrorism. Detention of captured enemy combatants is both allowed and accepted under international law of armed conflict.

Second, the Combatant Status Review Tribunals have provided a venue for detainees to personally challenge their status as enemy combatants. As you will recall, in last June's Supreme Court decision in "Hamdi," Justice O'Connor explicitly suggested that a process based on existing military regulations -- and she specifically cited Army regulation 190-8 -- might be sufficient to meet due process standards. You'll also perhaps know that that Army regulation is what the U.S. uses to implement Article 5 of the Geneva Convention that deals with prisoners of war.

So our CSRT process incorporates that guidance from Article 5, Army regulation 190-8 and, as I mentioned in the past, it adds features for further benefit of the detainee. For example, a personal representative is made available to each detainee to assist in preparing his case before the CSRT.

Third, we have notified all enemy combatants of the opportunity to challenge their detention in federal district court. During this process, several detainees have completed documents for submission directly to the federal court here in Washington, D.C.

Lastly, our national security interests would be harmed if classified information about terrorist organizations and activities were released, so in many cases much of the information about a detainee is classified. In fairness to the detainee, we have the intelligence community clear unclassified summaries of this information about each detainee, which is then shared with each detainee as the unclassified basis for his detention.
Human rights lawyers, however, have questioned the constitutionality of the CSRTs, saying detainees were not allowed to have lawyers and were unable to challenge secret evidence against them. A case on what rights detainees have under the Hamdi ruling is currently pending before the US Court of Appeals for the District of Columbia. The Boston Globe has more.

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Federal appeals court to consider full court rehearing of Schiavo case
Jeannie Shawl on March 30, 2005 10:01 AM ET

[JURIST] In an order issued just after midnight Wednesday morning, the US Court of Appeals for the Eleventh Circuit [official website] agreed to consider Bob and Mary Schindler's request for a new hearing en banc on whether a feeding tube for their brain-damaged daughter Terri Schiavo [JURIST news archive] should be reconnected. Last Friday a three-judge panel of the court rejected an appeal [JURIST report] from a federal district judge's second ruling against re-connection of the tube pending review of Schiavo's case. The request for a new hearing by the full court was made "in light of the magnitude of what is at stake and the urgency of the action required." Attorneys for the Schindlers are arguing [petition, PDF text] that the district court "committed plain error when it reviewed only the state court case and outcome history," and have asked the appeals court to base its decision on rehearing on the seven-year history of evidence in the Schiavo case, not whether Florida court rulings met appropriate legal standards. See a copy of the Eleventh Circuit order [PDF] allowing the petition for rehearing. AP has more.

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Legal agenda and live webcasts ~ Wednesday, March 30
Chris Buell on March 30, 2005 12:01 AM ET

[JURIST] Here's a run-down of law-related events, expected developments and live webcasts on JURIST's docket for Wednesday, March 30.

The US Supreme Court [official website] will hear oral arguments in one case today, beginning at 10 AM ET. In Wilkinson v. Austin [case backgrounder from Duke Law School], 04-495, the Court will consider what procedures are needed to protect a prisoner's due process rights when prison officials seek to place the prisoner in a "super-maximum security" facility. The ABA has merit briefs in the case.

The US Senate and US House [official websites] are in recess until April 4.

The People for the American Way is holding a news conference announcing an advertising campaign in support of retaining the filibuster in the Senate. Watch a live webcast of the briefing via C-SPAN beginning at 10 AM ET.

The American Enterprise Institute is holding a forum titled "The Limits of International Law," beginning at 5 PM ET. Watch a live webcast of the session via C-SPAN.

At the International Criminal Tribunal for the Former Yugoslavia, the trial of Fatmir Limaj and others [ICTY case backgrounder] continues today at 2:45 PM local time [8:45 AM ET]. Watch a webcast of proceedings.

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For more legal news check the Paper Chase Archive...


Unprecedented Notice of Warrantless Wiretapping in a Closed Case
Ramzi Kassem
CUNY School of Law

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