FINDLAW COLUMNISTS

• A New York Appeals Court Allows Victims of the 1993 World Trade Center Bombing to Recover Massive Damages from the Port Authority: Should The Bombers' Culpability Have Lessened the Damages Award?

• Does the Foolhardy McCain/Clinton Proposal for a "Gas Tax Holiday" Expose a More Fundamental Flaw in Democracy?

• McCain's Remarks Regarding the Kind of Judges He Would Nominate As President: His Surprising Failure to Take Into Account the Rightward Turn of the Supreme Court and of the Law In Recent History

• Torture, Rendition, and International Law

• What the Supreme Court's Recent Decision Upholding Indiana's Voter ID Law Tells Us About the Court, Beyond the Area of Election Law

GUEST COLUMNIST

• The Justice Department's Litigation Security Group and Its Ethics Violations in the Al-Haramain Case

FINDLAW COLUMNISTS:

A NEW YORK APPEALS COURT ALLOWS VICTIMS OF THE 1993 WORLD TRADE CENTER BOMBING TO RECOVER MASSIVE DAMAGES FROM THE PORT AUTHORITY: SHOULD THE BOMBERS' CULPABILITY HAVE LESSENED THE DAMAGES AWARD?
(Anthony Sebok) - A comment 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. Read more...

DOES THE FOOLHARDY MCCAIN/CLINTON PROPOSAL FOR A "GAS TAX HOLIDAY" EXPOSE A MORE FUNDAMENTAL FLAW IN DEMOCRACY?
(Michael Dorf) - An assessment of 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. Read more...

MCCAIN'S REMARKS REGARDING THE KIND OF JUDGES HE WOULD NOMINATE AS PRESIDENT: HIS SURPRISING FAILURE TO TAKE INTO ACCOUNT THE RIGHTWARD TURN OF THE SUPREME COURT AND OF THE LAW IN RECENT HISTORY
(Edward Lazarus) - An argument 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 bet! ween liberty and security. Read more...

TORTURE, RENDITION, AND INTERNATIONAL LAW
(Joanne Mariner) - A discussion of 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. Read more...

WHAT THE SUPREME COURT'S RECENT DECISION UPHOLDING INDIANA'S VOTER ID LAW TELLS US ABOUT THE COURT, BEYOND THE AREA OF ELECTION LAW
(Vikram Amar) - A discussion of 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. Read more...

GUEST COLUMNIST:

THE JUSTICE DEPARTMENT'S LITIGATION SECURITY GROUP AND ITS ETHICS VIOLATIONS IN THE AL-HARAMAIN CASE
(Jesselyn Radack) - 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. Read more...