Entries Tagged as 'Legal'

As Kagan Joins, Federal Courts’ Roles Rise In Importance

by Ron Elving

This weekend, Elena Kagan was sworn into the elite club of 112 who have served on the U.S. Supreme Court. The moment was duly noted across all news media, in large part because Kagan is just the fourth woman in the club.

But journalists also pounce on new appointments to the High Court in part to correct our perennial neglect of the judicial system. By far the preponderance of political journalism spilling out of Washington is devoted to the White House and Capitol Hill. As a rule, we pay attention to the courts when they interfere with something the other branches are trying to do.

This summer, federal judges have once again been horning in on issues of great interest and high stakes. Gay marriage. Immigration. The health care law. The post-BP moratorium on deepwater drilling. Each of these decisions will be reviewed by federal courts of appeal and ultimately by the U.S. Supreme Court.

But for that reason alone they will be generating news, inflaming public opinion and determining the direction of our politics, economics and culture.

Although most of the federal judiciary labors in lofty obscurity, at moments such as these one man or woman in a black robe can make an incalculable difference. Governors and senators and others in public life can only dream of such moments of influence.

Consider that on one day last week, one federal judge in San Francisco issued an opinion that invalidated the best known voter initiative of recent years: Proposition 8 on the 2008 California ballot, which overturned the state’s recognition of gay marriage.

Presenting extensive findings of fact from the trial before him, U.S. District Court Judge Vaughn Walker noted that defenders of Proposition 8 had scarcely attempted to refute these findings. In fact, the Prop 8 defense in its entirety was so cursory as to suggest its attorneys scarcely thought the trial court level was important. Their eye was on the friendlier venues of the U.S. Court of Appeals for the 9th Circuit and the U.S. Supreme Court.

But if liberals and libertarians were heartened by Walker, they were equally gratified one week earlier by the ruling of U.S. District Court Judge Susan Bolton, who kicked out the key pillars of an Arizona law attempting to crack down on illegal immigration. Bolton found fault in that law’s provisions allowing state and local officials to question the immigration status of people they deemed suspicious — for whatever reason. The requirement that residents who ran afoul of such suspicion produce papers proving their immigration status was also spiked by the judge.

Bolton, like Walker, knew well how every word she put to paper would be scrutinized, analyzed and politicized. No doubt the same could be said for other judges bringing a more conservative viewpoint to bear on equally significant issues in recent days.

First of these was federal District Court Judge Martin Feldman of Houston, who spiked the administration’s six-month moratorium on oil-and-gas drilling in the Gulf of Mexico. The administration may well have thought the argument for shutting down new explorations in the Gulf was open and shut in the wake of the BP Deepwater Horizon debacle. But if the shutdown was a no-brainer for environmentalists and industry critics, business folks in the Gulf states seemed to see it primarily as a short-term job killer and a long-term cloud over the economic future of the region.

Liberals were swift to note that Judge Feldman had a portfolio of stock holdings in the oil and gas sector, one that might well suffer in the event of a long-term slowdown in Gulf energy production. They also noted that the relevant federal appeals court, the 5th Circuit in New Orleans, was dominated by judges with business interests much like Feldman’s.

But the judge’s ruling stands, and is likely to stand longer than the Obama administration stands behind its six-month moratorium.

Similarly, in the same week as the Prop 8 ruling, supporters of the Obama health care law were incensed that U.S. District Judge Henry Hudson in Richmond had approved Virginia’s standing to sue the federal government over the enforcement of provisions in that law. Defenders of the new health law had hoped that Hudson might uphold the historic principle of federal pre-eminence, a central issue since the founding of the Republic.

Many have noted the symbolic power of having this challenge emanate from Richmond, the capital of the Confederacy in the 1860s and the epicenter of “massive resistance” to the school integration decision of the Supreme Court in the 1950s. State’s rights may be a heading in a history textbook for some parts of the country, but they remain a mainstay of current events in the South.

Talk of nullification — the asserted right of states to ignore federal laws as they choose — has re-emerged as President Obama has pursued an activist agenda. In Texas and Tennessee, candidates for statewide office have allowed references to secession to enter their campaign vocabularies.

While no one expects another Civil War, we are clearly heading into the most significant round of state-federal confrontations we have seen since the 1960s. And that struggle has already been joined in courtrooms around the country, where it will largely be fought.

Small wonder then that Republicans in the Senate have made resistance to the judicial nominees of the new president such a salient element of their mission in these past 18 months.

To be sure, the president has seen both his nominees to the Supreme Court approved with little suspense. But the Senate has yet to allow a vote on most of the 85 nominees he has sent up for federal judgeships at the district and appeals court levels.

Same old partisan story? Not quite. The last five presidents, three of them Republicans, have seen four out of five of their appointments confirmed.

Democrats under Majority Leader Harry Reid have not been willing to call the minority’s bluff on this tactic by demanding real-time filibusters with all-night sessions and cots in the lobbies. No one wants the delay, the drama or the indignity.

But as the number of Democrats in the Senate shrinks in the November election, those who remain will need to reconsider what means are necessary to install their president’s choices in the increasingly powerful job of judge.

Original Story on NPR.org

Originally posted 2010-08-21 02:00:48.

Deep Throat

I watched a documentary called Inside Deep Throat — and I found it far more interesting than I think I ever found the movie.

The documentary talks about the changes occurring on the sexual landscape of America… while the sixties might have been referred to as the sexual revolution, it was really the early seventies where the battle of sexual expression was waged.

The movie was a landmark in many respects — but it’s success really had little to do with the quality of the movie, but rather the legal battles it caused — even though a presidential (appointed by Richard M Nixon) commission had already recommended that laws controlling pornography be repealed since they were largely unenforceable and that pornography caused no real risk to adults.

Watergate was only one of Nixon’s lies.

Sure the movie broke a great deal of new ground in film in general and porno specifically… but what it really broke was political and social stigma.

The trial in New York City (Judge Tyler ruled the file “obscene”) and an article in The New York Times catapulted the movie to the most profitable movie ever — $600 million US for a movie that originally cost only $25,000 to make.

The movie was eventually outlawed in 23 states; and the FBI harassed the director, producer, financiers, and theater owners.

Nixon’s four appointed Supreme Court Justices gave censorship a leg up; initially the feminist movement and the “protect our children” radicals supported the ban on expressive file; but steadily community standards changed possibly because of the VCR (and later DVD) and individuals began to demand their freedom of expression.

In most part of the country today individuals are free to choose; but believe me, there are still backward places that attempt to legislate morality — oppression controlled by the radical Christian right.


Below is a summary of court cases revolving around obscenity.

1957 Roth v. US – the Supreme Court defined obscene material is that which lacks any “redeeming social importance.”  The Supreme court combined the cases wof Roth v. US and Alberts v. California.

1964 Jacobellis v. Ohio – the Supreme Court reverses a state obscenity ruling, but issues four separate opinions laying the ground work for confusions.

1966 Memoirs v. Massachusetts – the Supreme Court attempts to better define the ruling in Roth v. US.  A work had to be proved by censors to: 1) appeal to prurient interest, 2) be patently offensive, and 3) have no redeeming social value.

1973 Miller v. California – the Supreme Court reinforces that obscenity was not protect by the First Amendment and established the Miller test but acknowledged “the inherent dangers of undertaking to regulate any form of expression,” and said that “State statutes designed to regulate obscene materials must be carefully limited.” 1) whether the average person, applying contemporary community standards (not national standards, as some prior tests required), would find that the work, taken as a whole, appeals to the prurient interest; 2) whether the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law; and 3) “whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”

1973 Paris Adult Theatre I v. Slaton – the Supreme Court upheld a state court’s injunction against the showing of obscene films in a movie theatre restricted to consenting adults; however, the Court differentiated the case from 1969 Stanley v. Georgia.

1990 FW/PBS v. City of Dallas – the Supreme Court ruled the city ordinance attempting to regulate “expressive businesses” as unconstitutional.

1999 Free Speech Coalition v. Reno – the Ninth Circuit Court of Appeals ruled against section 2556(8) of the Child Pornography Prevention Act (CPPA)  stating 1) the statue is not content-neutral and aims to curb specific expression; 2) the statute was not in line with Supreme Court decisions which have held that states can only criminalize child pornography when the laws “limit the offense to works that visually depict explicit sexual conduct by children below a specified age” – something the CPPA failed to do; 3) no demonstrated link to harm to real children has been demonstrated; and 4) the language is too vague and over-broad, allowing for arbitrary and discriminatory enforcement.

Originally posted 2010-09-21 02:00:41.

Illegal Immigrants

Illegal Immigrants
By Arend Van Dam, 13-May-2011

Originally posted 2011-05-15 02:00:11.

Identity Theft

Identity theft is a real problem, and credit bureaus make it all to easy for individuals who get a little bit of information about you to get your entire life’s story — and use your name (and credit) to make their life better and your life a living hell.

While there’s been improvements in legal recourse for identity theft, your best bet is to guard against it.

To make yourself a harder target, try some simple things like:

  • Elect on-line delivery of banking and credit card statements; utility bills; and anything else you can.  It’s safe, it’s good for the environment, and it reduces the likelihood of mail theft.
  • Use on-line bill payment or pay bills with your credit card; it’s safe, convenient, and it reduces the likelihood of mail theft.  Using your credit card may give you additional rights, and cash back.
  • Destroy paper items that have any personal information on them; cross-cut or confettie shreaders are the best, a fire place, or just mark it over and tear it by hand.
  • Destroy old credit cards, drivers licenses, passports, etc — make sure nothing with personal and confidential information on it goes in the trash.
  • Don’t give out your name or address to any one or on any site or on any phone call unless you know who you’re dealing with and there’s some advantage for you to do so.
  • Remove your name from mailing lists, refuse delivery of mail you didn’t request (that will cost the sender money generally and is more likely to get your name expunged from the list they use).
  • Put a “freeze” on your credit report.  Click here for info
  • Report scammers, spammers, and phishers to law enforcement. Click here for info

 

There are lots of great sites online that are free (free of advertising), and full of information… here’s one of them:

          http://www.consumersunion.org/

Originally posted 2008-11-08 08:00:50.

Voting Advice With Your Paycheck

A Canton, Ohio McDonald’s franchisee (Paul Siegfried) took it on himself to include an insert in his employee’s paychecks suggesting that his employees vote for three Republican candidates, also on the note was:

If the right people are elected we will be able to continue with raises and benefits at or above our present levels. If others are elected we will not.

Sounds a little intimidating / threatening… I guess this business owner didn’t feel that election laws applied to him.

It’s really a travesty that any American wouldn’t know that it’s illegal for an employer to in any way try and influence his employees to vote for or against a given candidate or measure in an election… and even if you didn’t know it’s illegal, it’s certainly immoral.

Personally I hope Mr Siegfried finds himself in jail as an example to others who simply do not feel the law applies to them… and if I were McDonald’s I think a little more than a statement saying that their franchisee doesn’t speak for them is in order, particularly since it was on a piece of stationary bearing the McDonald’s logo.

Originally posted 2010-11-01 02:00:29.

Stonewall

President Obama declared June 2009 Lesbian, Gay, Bisexual, and Transgenders Pride Month, citing the rights that began at Stonewall Inn, 51 &53 Christopher Street, Greenwich Village, New York City, New York, United States of America on 29 June 1969.

Forty years since the event that is generally considered to be the beginning of the gay civil rights movement (though there were previous efforts at gay civil rights) President Obama makes a token gesture of recognition of the inequity individuals who are not part of the heterosexual majority suffer on a daily basis, but fails to mention that their is still no protection of sexual orientation in the United States and that many states have on the books laws which effectively attempt to make illegal same sex relationships (or at least sexual activities between same sex — and some anything considered deviant sexual activities even between legally married individuals).

Simply put, it is time for the United States of America to recognize and provided equality to each and every American regardless of their age, sex, creed, national origin, ancestry, race, color, sexual orientation, political affiliations, religion, beliefs, physical limitations, or marital status.

Plain and simple, all Americans are Americans and they deserve to be treated equally.

NOTE: June 1999 the US Department of the Interior designated 51 and 53 Christopher Street, the street itself, and the surrounding streets as a National Historic Landmark.

Let it forever be remembered that here—on this spot—men and women stood proud, they stood fast, so that we may be who we are, we may work where we will, live where we choose and love whom our hearts desire.
· John Berry, Assistant Secretary of the Department of the Interior

Originally posted 2009-06-01 02:00:39.

Disclosing Personal Information

I find more and more companies attempt to get as much personal information on me as they can.

I also find more and more companies mishandle the personal information that they have collected.

I just got a letter today from a transfer agent one of my previous employers used; apparently they “lost” a data backup set that contained my personal information, of course they assure me that there’s little chance of any of my personal information being misused.  And offer to reimburse me for any expenses I might incur in obtaining a credit report, monitoring my credit, freezing access to my credit history — but I didn’t see in there any offer to compensate me for my time, or any loses that I might incur.

I think I’m just going to write them back, thank them for advising me of this information, and tell them that they may hire someone to manage and monitor misuse of information which they lost (most likely negligently); but that I will not incur any costs of money or time taking actions to protect myself from this incident, but I will hold them liable for any and all actual, consequential and potentially punitive damages should information they mishandled be used in any illegal activity.

My advice to companies that collect personal data is that they purge any at all personal data they have at the earliest possible time that they can legally do so.  Failing to take such action makes companies that maintain personal data liable for an unauthorized disclosure of information; and I would say potentially criminally negligent.

Originally posted 2009-01-18 01:00:44.

Limited liability resulting from the Deepwater Horizon incident?

Right away after the explosion of the Deepwater Horizon Swiss company Transocean Ltd moved to have their liability for damages limited to the cost of the “sunken ship” ($27 million) citing an 1851 law that says the owner of a sunken vessel is liable only for its value after the accident.

Transocean expects to receive $560 million in insurance, so subtracting what they consider their maximum liability they’d just about meet their three year revenue projection under the BP contract.

Hmm…

Many of the judges are recusing themselves from hearing cases involving the oil spill; but I’d say if a federal judge in Houston makes a ruling we’ve certainly found a judge that can no longer recuse himeself (though he might be a candidate for impeachment)… my guess is Transocean will not get their ruling quickly, and likely will not get a ruling they like ever.

Transocean CEO Steven Newman told investors in addition that its contract with BP holds BP entirely responsible for all damages and liability from the spill.

I guess Newman isn’t totally confident of the petition filed in federal court, or his contractual liability limits so he’s working both ends… and is probably worried that a review will show negligence on his company’s part — which could cause a judge to throw out any and all liability limits.

BP, Halliburton, and Transocean are each responsible, and each of them should (and hopefully will) be held accountable for this mess — and their massive profits will be used to undo the damage their greed has caused.

As I’ve said before — make the problem expensive enough for them to allow to continue; and any future problem much more expensive for them to clean up — and we won’t have to worry much about the spill continuing… or ever happening again (just take highest quarter’s profits from the last year, divide by 90 — and that’s the daily fine).

Originally posted 2010-06-16 02:00:17.

Bill of Rights – Amendment I

The past week has made me question if it’s not just the financial future for the United States that is in serious question, but the very founding principles which established this republic.

The framers of the Constitution of the United States were compelled to add the first ten amendments to that document before ratification. Known as the Bill of Rights the first of these amendments (Amendment I) contains precept son which much of the expansion of this country has been based (though this is not the first time it’s principle has been tarnished).

On 17 September 1787 the current United States Constitution was adopted by the Constitutional Convention in Philadelphia, Pennsylvania and ratified by each US state in the name of “The People”.

The United States Constitution is the oldest written (single document) constitution still in use by any nation on our planet, and had for over two hundred years defined law in the United States.

On 25 September 1789 the following was added to the United States Constitution, and enacted in full force on 15 December 1791.

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The “eviction” of peaceful protestors in a number of cities across the nation was alarming in itself; but the use of pepper spray to clear out a group of peaceful protesters at the University of California Davis, in Davis, California is a travesty.  This incident, caught on video and seen within 24-hours of it happening by over half a million people is truly alarming.

I do agree with University of California Davis Chancellor Linda Katehi that an independent investigation be conducted; but I believe that several investigations need to be conducted, including one by the Justice Department under the direction of the US Attorney General.

While I do not feel Linda Katehi needs to step down; I do believe both her and the commander of the police force, as well as any officer acting outside the bounds of the orders issued, need to be put on administrative leave immediately; and their actions would need to be fully investigated before allowing them to return to their positions of authority.

Points of law, and the legality of actions are determined by the judiciary; but it is the responsibility of the executive branch to insure that potential violations of law (and civil rights) are arraigned.

The Arab Spring was seen as a great movement forward to allowing people to be free(r) and allow them to have a (larger) stake in deciding their future; but now, perhaps the United States needs to request international observers to insure that our government doesn’t continue down this road to infringe on the rights that “we the people” have given so much to secure.


Originally posted 2011-11-21 02:00:40.

Don’t Ask – Don’t Tell

Repeal of ‘don’t ask, don’t tell’ is inevitable
By Christopher Wolf, CNN
22 September 2010

Senate Republicans successful in blocking the repeal Tuesday of “don’t ask, don’t tell,” the military’s discriminatory policy on gays and lesbians in the military, obviously did not read or simply chose to ignore a California federal judge’s ruling several weeks ago that the policy violates fundamental constitutional rights.

Given the opportunity to undo the bigotry that was written into law 17 years ago, the senators chose not to follow the lead of the House of Representatives, which voted in May to repeal the law. Instead the Senate opted to pander to socially conservative voters. For now, at least, the law remains on the books.

But the march to repeal or invalidation must and will resume. The unfairness and wastefulness of the “don’t ask, don’t tell” policy has been demonstrated repeatedly.

Twelve years ago I handled a case that by itself showed the absurdity and mean-spirited nature of the law. In 1998, I represented a highly decorated 17-year veteran of the United States Navy who had served honorably and continuously since he was 19 years old.

Out of the blue, the Navy decided to kick him out of the service because he was gay, and not based on anything he did as a sailor. (I was called into the case the night before the discharge was to take effect.)

At the time of the Navy’s decision to discharge him, he was the senior-most enlisted man aboard the United States nuclear submarine USS Chicago, the sole source of income for his mother and nearing retirement eligibility.

The “offense” triggering the Navy’s witch hunt was an e-mail the sailor had sent from his AOL account seeking donations of toys for the children of his shipmates at Christmas. (His AOL username made the Navy officials suspect the sailor might be gay, but nothing in the contents of the e-mail or anything else in the sailor’s behavior in the service justified what the Navy did.)

The Navy decided to go on a “search and destroy” mission against the service member (those are the words of the judge hearing the case), when it asked AOL to get information about the sailor to confirm he was gay.

Then-Judge Stanley Sporkin–formerly general counsel of the SEC and CIA, so no bleeding heart liberal — found that the Navy had violated federal electronic privacy law by demanding information from AOL to make its case against the sailor, and that it had violated the strictures of the “don’t ask” part of the military policy on gay and lesbian service members. He stopped the Navy from throwing out a distinguished service member in light of its illegal activity.

The case made news at the time. The decision was a courageous one and against the conventional wisdom that Congress had accommodated gays and lesbians just fine with “don’t ask, don’t tell” and it was not up to civilians to tell the military how to operate.

Sporkin wrote in his opinion that “It is self-evident that a person’s sexual orientation does not affect that individual’s performance in the workplace. At this point in history, our society should not be deprived of the many accomplishments provided by the people who happen to be gay.”

He said the court “cannot understand why the Navy would seek to discharge an officer who has served his country in a distinguished manner just because he might be gay” and that the case “vividly underscores the folly of a policy that systematically excludes a whole class of persons who have served this country proudly and in the highest tradition of excellence.”

He acknowledged that the case specifically did not reach any of the constitutional issues underscoring the “don’t ask, don’t tell, don’t pursue” policy, but he felt compelled to note that “the defenses mounted against gays in the military have been tried before in our nation’s history — against blacks and women.” Sporkin concluded: “Surely, it is time to move beyond this vestige of discrimination and misconception of gay men and women.”

Twelve years later, a successor of Sporkin’s on the federal bench in California decided just that — that it is time to eliminate discrimination, as a matter of constitutional law. In the meantime, scores of qualified and committed service members have been ousted based solely on a policy whose foundation is unconstitutional bigotry.

They did not have a Sporkin to take up their cause of justice. They will never get their careers back, or purge the trauma of being labeled second-class citizens, and neither will our country be able to recover their valuable lost service.

Although the Senate stopped repeal of “don’t ask, don’t tell” in its tracks yesterday, the California ruling will work its way through the appellate process. In the end, this will turn around and the day will come when gay and lesbian service members and their allies can say we were right all along, and just as in the days of segregation, the country was wrong.

Repeal of ‘don’t ask, don’t tell’ is inevitable on CNN

Originally posted 2010-09-25 02:00:31.