Entries Tagged as 'Legal'

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.

Bush v. Gore

At a law school Supreme Court conference that I attended last fall, there was a panel on “The Rehnquist Court.” No one mentioned Bush v. Gore, the most historic case of William Rehnquist’s time as chief justice, and during the Q. and A. no one asked about it. When I asked a prominent law professor about this strange omission, he told me he had been invited to participate in another Rehnquist retrospective, and was told in advance that Bush v. Gore would not be discussed.

The ruling that stopped the Florida recount and handed the presidency to George W. Bush is disappearing down the legal world’s version of the memory hole, the slot where, in George Orwell’s “1984,” government workers disposed of politically inconvenient records. The Supreme Court has not cited it once since it was decided, and when Justice Antonin Scalia, who loves to hold forth on court precedents, was asked about it at a forum earlier this year, he snapped, “Come on, get over it.”

There is a legal argument for pushing Bush v. Gore aside. The majority opinion announced that the ruling was “limited to the present circumstances” and could not be cited as precedent. But many legal scholars insisted at the time that this assertion was itself dictum — the part of a legal opinion that is nonbinding — and illegitimate, because under the doctrine of stare decisis, courts cannot make rulings whose reasoning applies only to a single case.

Bush v. Gore’s lasting significance is being fought over right now by the Ohio-based United States Court of Appeals for the Sixth Circuit, whose judges disagree not only on what it stands for, but on whether it stands for anything at all. This debate, which has been quietly under way in the courts and academia since 2000, is important both because of what it says about the legitimacy of the courts and because of what Bush v. Gore could represent today. The majority reached its antidemocratic result by reading the equal protection clause in a very pro-democratic way. If Bush v. Gore’s equal protection analysis is integrated into constitutional law, it could make future elections considerably more fair.

The heart of Bush v. Gore’s analysis was its holding that the recount was unacceptable because the standards for vote counting varied from county to county. “Having once granted the right to vote on equal terms,” the court declared, “the state may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” If this equal protection principle is taken seriously, if it was not just a pretext to put a preferred candidate in the White House, it should mean that states cannot provide some voters better voting machines, shorter lines, or more lenient standards for when their provisional ballots get counted — precisely the system that exists across the country right now.

The first major judicial test of Bush v. Gore’s legacy came in California in 2003. The N.A.A.C.P., among others, argued that it violated equal protection to make nearly half the state’s voters use old punch-card machines, which, because of problems like dimpled chads, had a significantly higher error rate than more modern machines. A liberal three-judge panel of the United States Court of Appeals for the Ninth Circuit agreed. But that decision was quickly reconsidered en banc —that is, reheard by a larger group of judges on the same court — and reversed. The new panel dispensed with Bush v. Gore in three unilluminating sentences of analysis, clearly finding the whole subject distasteful.

The dispute in the Sixth Circuit is even sharper. Ohio voters are also challenging a disparity in voting machines, arguing that it violates what the plaintiffs’ lawyer, Daniel Tokaji, an Ohio State University law professor, calls Bush v. Gore’s “broad principle of equal dignity for each voter.” Two of the three judges who heard the case ruled that Ohio’s election system was unconstitutional. But the dissenting judge protested that “we should heed the Supreme Court’s own warning and limit the reach of Bush v. Gore to the peculiar and extraordinary facts of that case.”

The state of Ohio asked for a rehearing en banc, arguing that Bush v. Gore cannot be used as precedent, and the full Sixth Circuit granted the rehearing. It is likely that the panel decision applying Bush v. Gore to elections will, like the first California decision, soon be undone.

There are several problems with trying to airbrush Bush v. Gore from the law. It undermines the courts’ legitimacy when they depart sharply from the rules of precedent, and it gives support to those who have said that Bush v. Gore was not a legal decision but a raw assertion of power.

The courts should also stand by Bush v. Gore’s equal protection analysis for the simple reason that it was right (even if the remedy of stopping the recount was not). Elections that systematically make it less likely that some voters will get to cast a vote that is counted are a denial of equal protection of the law. The conservative justices may have been able to see this unfairness only when they looked at the problem from Mr. Bush’s perspective, but it is just as true when the N.A.A.C.P. and groups like it raise the objection.

There is a final reason Bush v. Gore should survive. In deciding cases, courts should be attentive not only to the Constitution and other laws, but to whether they are acting in ways that promote an overall sense of justice. The Supreme Court’s highly partisan resolution of the 2000 election was a severe blow to American democracy, and to the court’s own standing. The courts could start to undo the damage by deciding that, rather than disappearing down the memory hole, Bush v. Gore will stand for the principle that elections need to be as fair as we can possibly make them.

Has Bush v. Gore Become the Case That Must Not Be Named?
By Adam Cohen
Published: August 15, 2006; The New York Times

Originally posted 2010-09-09 02:00:33.

“Honest Services” Law

Last Thursday the Supreme Court greatly narrowed the scope of a federal fraud law frequently used to prosecute white-collar criminals.

And guess who might benefit from the decision…

Enron CEO Jeffrey Skilling among a host of others.

The Supreme Court ruling was the result of an appeal Jeffery Skilling brought before the court.  Skilling actually ask that the “honest services” law be struck down as unconstitutional as well as asking for a new trial since he claimed he didn’t get a fair trial in Houston (I personally don’t recall him requesting a change of venue — so apparently he felt he’d fair better there than most other places people felt he’d defrauded them out of their life savings).

Justice Ruth Bader Ginsburg’s written option stated that prosecutors could continue to seek honest services fraud conviction in cases where their is sufficient evidence to show defendants accepted bribes or kickbacks.  Of course Jeffery Skillings isn’t accused of accepting bribes or kickbacks, just filling his pockets with money at the expense of his investors and customers by knowingly manipulating the energy market.

The court did not specifically throw out any of the nineteen counts against Skilling, nor did they agree to a new trial.

I’m sure former Illinois Gov. Rod Blagojevich, former Alabama Gov. Don Siegelman, and ex-HealthSouth CEO Richard Scrushy, former newspaper magnate Conrad Black, former Alaska lawmaker Bruce Weyhrauch as well as other will be quick to see what this new ruling might do to help them.

Justices Sonia Sotomayor, Stephen Breyer, and John Paul Stevens were the dissenters; and I once again have to ask what box of cereal Justice Ginsberg clipped her law degree from.

I know, this is America, land of the free; but where the more cash you have, the more “equitable” the law.

Originally posted 2010-06-25 02:00:00.

Bait and switch rates?

Yesterday (Monday 6-Jul-2010) at 4:15pm I stopped by Gulf Winds Federal Credit Union to open up an IRA Certificate of Deposit; I’d been in the process of transferring money from one institution to another (and it took much longer than it should have — but since two institutions were involved, it’s hard to know which was responsible for the delay).

Anyway, I ended up having to wait 45 minutes to be helped; that gave me plenty of time to look over the posted rate board — and I’d decided that the 2.09% for a 24-month IRA-CD looked reasonable (I’d have preferred 18 months or less, but I wanted a reasonable return rate, and I don’t really expect the economy to start to rebound for several years).

The customer service representative that helped me (the “Financial Services Representative”) ask me which CD I was interested in and I told him — the 24-month 2.09% APR; he immediately said, that the 24-month IRA-CD was 1.97%, not 2.09% — that it had changed on Friday 2-Jul-2010 and they simply hadn’t gotten around to posting it on their rate board.

WTF?

I’ve long been under the impression that financial institutions understand the importance of posting accurate rate information — and I thought most any ethical institution understands the legal (even if they don’t understand the moral) implications of posting fraudulent information.

When I got home I filed complaints with the State of Florida Attorney General’s office (in Tallahassee, FL) and the National Credit Union Administration, Region III office (in Atlanta, GA) requesting that they investigate the business practices of Gulf Winds Federal Credit Union.



Post Note: The VP of Operations contacted me this morning (7-Jul-2010) and Gulf Winds Federal Credit Union will honor the rate as posted yesterday (for me at least).

Originally posted 2010-07-07 02:00:32.

Can You Hear Me Now?

And who else can hear me or can see my cellular phone records?

Verizon Wireless informed the Obama transition team, the US Secret Service, and law enforcement agencies that a number of Verizon employees had improperly and illegally accessed cellular phone records for a phone belonging to Barrack Obama.

The employees have been suspended without pay while the investigation is conducted.

So it’s great that a high profile individual like the president elect gets swift action from Verizon, but the question in my mind is why aren’t they just as quick to act when I call?

Over all I would say that Verizon’s customer service is better than most companies; but I don’t get this kind of attention when they screw up — and I dont’ recall seeing any clauses in my contract about getting a higher grade of customer service if elected to public office…

Originally posted 2008-11-21 18:00:44.

#MeToo

I’ll open by underscoring this is my personal opinion.

I’ve read and watched a number of individuals come forward about being sexually harassed in the past — and I think that’s a great travesty that people would take advantage of another based on their position, social status, wealth, or power — but let’s wake up here… that is how the world has operated (and we’ve all turned blind eyes for years, decades, millenniums), so let’s ratchet down the (false) indignation and work for a newer world order where harassment is a thing of the past.

I see this as an issue were we need not only looks at who did what — but when it was done.

Yes, the standards 10, 20, 30, 40, 50… years ago were very different than it is today.  And the way things were done might be appalling by today’s standards, but none the less that’s how they were done and we all knew it (don’t even try to pretend you thought all those stories of the “casting couch” and “sexitaries” was just locker-room banter… you knew it was true, and simply chose to do nothing about it).

Here on MLK day I’ve decided to share my thoughts — though let’s not pretend like MLK was a saint… he too was a sinner. He too (seemingly) had issues with equal rights for all (you didn’t hear him mention women, you didn’t hear him mention races other than white and black, you didn’t hear him mention gays).  The one thing Dr King did do: he opened up dialog which started to move this country forward from a long period of stagnation.

My feeling is actions which happened many years ago need to be looked at in the light of the prevailing time… those people need to be admonished at minimum, but if they didn’t cross what was the norm at the time that needs to be the end of it.  We just need to make sure that we update our image of the past and those personalities to include that they failed to treat everyone with the respect they deserved, and failed to take a stand to end harassment.

However, when similar things are happening now, or within the past several years — that’s different.  Clearly these events are transgressions that go far beyond the accepted norms.  Not only do we need to admonish these individuals, but we need to take action to insure that they and the industries they are in change.  That change needs to occur sooner, not later.

Should they be fired — yes — if they don’t have the courage and integrity to resign.

But should individuals who committed transgressions many, many years back when times were different be fired — that’s a little more complex; we need to look at the individual now, appraise what changes have been made to their life, and if they are still that same person.  If they are — then they’re out; however, if they’ve made change… we can give them a little time under the microscope before we make our final decision.

I’m all for zero tolerance, but zero tolerance never seems to be that (just check when the local school’s sports hero crosses the zero tolerance line, there always seems to be tolerance for at least a second chance — so something else we need to be honest with ourselves about — rarely do we really have zero tolerance, it’s just a catch phrase).

Personally I abhor harassment of any kind, I abhor those who feel they are better than others and can get away with it, I abhor those who help hide it and punish the victims… but this is a problem where we have to start to resolve today, and not get carried away with witch-hunt after witch-hunt of “dark” figures from out past.

Fair Use

The fact that the US Copyright Laws are in a major need of an overhaul isn’t something that only the masses of ordinary users understand; but to some extent John McCain is also painfully aware.

A little back ground.

During the 2008 Presidential Campaign, John McCain launched a number of political advertisements on YouTube, many of those advertisements used copyrighted material (for which he had not obtained a use license for).  Those advertisements were pulled from YouTube to comply with US Copyright Law (not the McCain had much choice — YouTube was required to pull the advertisements under the DMCA — an act which McCain supported).

In mid October 2008 McCain suggested to YouTube in a letter that “VIPs” shouldn’t be bound by the same fair use rules as others.

What can you expect from an elitist… he only sees the problem for himself, not for the general public.  A man with eleven homes and thirteen cars and uncounted wealth simply doesn’t feel he can afford to pay for the use of copyrighted material when the use of that material has obvious and substantial personal gains for himself, but it’s fine that a minimum wage mother should have to pay for the use of an old tune in the background of her child’s birthday video.

When put like that it’s easy to understand why member of Congress have one of the best health care plans in the world (for life) but they don’t feel the average American should have much choice.

Or perhaps we should consider TSA treatment of the average American who is subjected to searches and harassment and humiliation while members of Congress bypass the entire process.

Wait I digress.

Maybe, though, on copyright, we’ll have a little more luck holding politicians to the exact same standards that you and I must be accountable to.

Something more akin to one of the results of the confirmation hearing for Judge Robert Bork.  It resulted in the passage of the 1988 Video Privacy Protection Act (because our member of Congress were afraid their video rental records might be revealed to the public — not because they were worried about you and me).

There are permitted uses of copyright material which do not require any license payments; it may not be required to completely scrape the existing laws; all we may well need is the statement added that when an individual is not likely to substantially profit through the use of the material, it is covered under fair use.

US Copyright Office – Fair Use

Originally posted 2010-01-20 01:00:37.

The global war on drugs has failed…

The global war on drugs has failed, with devastating consequences for individuals and societies around the world…

Vast expenditures on criminalization and repressive measures directed at producers, traffickers and consumers of illegal drugs have clearly failed to effectively curtail supply or consumption. Apparent victories in eliminating one source or trafficking organization are negated almost instantly by the emergence of other sources and traffickers. Repressive efforts directed at consumers impede public health measures to reduce HIV/AIDS, overdose fatalitiesand other harmful consequences of drug use. Government expenditures on futile supply reduction strategies and incarceration displace more cost-effective and evidence-based investments in demand and harm reduction.

 

Global Commission on Drug Policy Report Recommendations:

 

— An end to “the criminalization, marginalization and stigmatization of people who use drugs but who do no harm to others.”

— Governments experiment “with models of legal regulation of drugs to undermine the power of organized crime and safeguard the health and security of their citizens. This recommendation applies especially to cannabis.”

— Increases in “health and treatment services [for] those in need.”

— Less focus on the arrest and imprisonment of “people involved in the lower ends of illegal drug markets, such as farmers, couriers and petty sellers. Many are themselves victims of violence and intimidation or are drug dependent. Arresting and incarcerating tens of millions of these people in recent decades has filled prisons and destroyed lives and families without reducing the availability of illicit drugs or the power of criminal organizations.”

— Less emphasis on “simplistic ‘just say no’ messages and ‘zero tolerance’ policies in favor of educational efforts grounded in credible information and prevention programs that focus on social skills and peer influences.”

— A increased focus on “violent criminal organizations, but do so in ways that undermine their power and reachwhile prioritizing the reduction of violence and intimidation. Law enforcement efforts should focus not on reducing drug markets per se but rather on reducing their harms to individuals, communities and national security.”

Members of the Global Commission on Drug Policy

— Asma Jahangir; human rights activist, former U.N. Special Rapporteur on Arbitrary, Extrajudicial and Summary Executions; Pakistan.
— Carlos Fuentes; writer; Mexico.
— Cesar Gaviria; former president of Colombia.
— Ernesto Zedillo; former president of Mexico.
— Fernando Henrique Cardoso; former president of Brazil.
— George Papandreou; Prime Minister of Greece.
— George Shultz; former secretary of state.
— Javier Solana; former European Union High Representative for the Common Foreign and Security Policy; Spain.
— John Whitehead; banker and civil servant, chair of the World Trade Center Memorial; United States.
— Kofi Annan; former secretary general of the United Nations.
— Louise Arbour; former U.N. high commissioner for human rights; Canada.
— Maria Cattaui; member of the board, Petroplus Holdings; former secretary-general of the International Chamber of Commerce; Switzerland.
— Marion Caspers-Merk; former state secretary at the German Federal Ministry of Health, Germany.
— Mario Vargas Llosa; writer; Peru.
— Michel Kazatchkine; executive director of the Global Fund to Fight AIDS, Tuberculosis and Malaria; France.
— Paul Volcker; former chairman of the Federal Reserve.
— Richard Branson; entrepreneur; founder of the Virgin Group; U.K.
— Ruth Dreifuss- former president of Switzerland.
— Thorvald Stoltenberg; former minister of foreign affairs and U.N. High Commissioner for Refugees; Norway.

Originally posted 2011-06-02 02:00:24.

I’m not sure I trust Canonical…

I received this email from Canonical (the company that supports Ubuntu) yesterday (I’ve neutered the anchor on the link)

From: landscape-team@canonical.com
Subject: You have been invited to the Landscape account canonica
Date: Tue, 23 Mar 2010 12:07:48 +0000 (GMT)

You’ve been invited to the following Landscape account:

Canonical – candidates (canonica).

Please click the following URL to accept the invitation:

https://landscape.canonical.com/accept-invitation/GvEf6S0tBkpWD0YOcH8NQsKAe2Yh5H

Then a few hours later I received this email (I’ve removed hard breaks so that it reads a little easier as a blockquote)

From: Jamshed Kakar <landscape-manager@canonical.com>
Subject: Apology for mistaken ‘Canonical Landscape Invitation’ email
Date: Tue, 23 Mar 2010 20:03:23 +0000 (GMT)

Hi,

A few hours ago one of our systems accidentally sent you an invitation for a trial account in Landscape.  The invitation was sent to you by mistake as a result of incorrect data in our contact database.

We’re working hard to ensure that this sort of thing won’t happen again.  Please accept our sincere apologies for this accident.

Regards,
Jamshed Kakar
Landscape Project Manager

The only conclusion that I can draw is that information I used to apply for a job with Canonical a month ago or so was mishandled and made available for (mis)use by others in the company.  Given that this has happened (clearly my information has been mishandled) it raises a concern as to how much Canoncial can be trusted handling any potentially sensitive or personal information…

Consider credit card numbers provided to them for support; contact information for sales or employment… the list goes on.

My advice — don’t trust any company with personal information that can obviously not be trusted to properly handle and safe guard that information.

I have requested that Canonical immediately remove any and all of my personal information from all of their databases (I certainly wouldn’t feel comfortable being employed by or doing business with such a company), maybe you should do the same.

Originally posted 2010-03-24 01:30:17.

Due Process Dies

On Monday 17 May 2010 the Supreme Court of the United States of America handed down a 7-2 decision that affirms the ability of the federal government to hold inmates they deem as “sexually dangerous” in the future indefinitely.

Adolf Hitler, Benito Mussolini, and Joseph Stalin surely stir in their graves at the finally winning the wars they started so long ago.

In the last decade American have lost civil right after civil right; legal protection after legal protection — all in the name of making ourselves “safe”… but in fact all we are doing is making ourselves slaves.

Let me point out that in the United States, a person is found guilty by a trial of their peers, and a judge passes sentence for the crime… when the period of internment expires the criminal has paid his “debt” to society.  Apparently we now believe that the United States government [though the Department of Justice] has the ability to adjust the term of a sentence indefinitely.

How long is it until the United States government just dispenses with the formality of a trial all together, and locks away individuals who they say are a threat… oh wait, that’s already happening — at Guantanamo Bay!

NOTES:

Justice Stephen Breyer wrote the court’s majority opinion stating that it is “a ‘necessary and proper’ means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned and to maintain the security of those who are not imprisoned by who may be affected by the federal imprisonment of others.”

The judgment reversed a lower court ruling that said Congress overstepped its authority in allowing indefinite detentions of prisoners considered “sexually dangerous.”

“The Federal Government, as custodian of its prisoners, has the constitutional power to act in order to protect nearby [and other] communities from the danger such prisoners may pose.”

In order to do it, however, the government must prove the following:

1. The individual has previously “engaged or attempted to engage in sexually violent conduct or child molestation.”

2. He/She currently “suffers from a serious mental illness, abnormality, or disorder,”

3. The prisoner “as a result of” that mental illness, abnormality, or disorder is “sexually dangerous to others,” in that “he would have serious difficulty in refraining from sexually violent conduct or child molestation if released.”

A hearing, during which the individual would remain incarcerated, would then determine whether or not he/she could be released.

“If the Government proves its claims by ‘clear and convincing evidence,’ the court will order the prisoner’s continued commitment,”

Justice Clarence Thomas and Justice Antonin Scalia dissented.  Justice Thomas argues that Congress can only pass laws that deal with the federal powers listed in the Constitution (States Right) and stated that nothing in the Constitution “expressly delegates to the Congress the power to enact a civil commitment regime for sexually dangerous persons, nor does any other provision in the Constitution vest Congress or the other branches of the federal goverment with such a power.”

The Supreme Court ruling upholds the Adam Walsh Chile Protection and Safety Act signed in 2006 by George W Bush.

Originally posted 2010-05-19 02:00:33.