Archive for Law

America’s no-speech precedent

According to the 1st amendment to the constitution, Free speech in america is protected. Fact.

Except when talking about politics near an election day, except when talking about copy protection techniques, and now except when talking about online gambling in washington state. Where one of the first battles under the flag of this washington bill, is involving someone who was not actually gambling, but merely talking about it. drugswatcher.com

Every day, the protected free speech of the first amendment is seeming a little more like fantasy. Between the DMCA, the industries trying to legislate their place in our culture, and bills similar to this one, it’s no wonder that businesses are moving out of the country and american individuals are trying to maintain their freedoms by moving their ideas outside our borders. So is that what america coming too? You can do what you want, as long as you don’t do it here?

Found via slashdot

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Warning About Nullification

Over at Positive Liberty, Timothy Sandefur has a post about Jury Nullification. To snip out the central question (edited):

jury nullification is obviously an important and legitimate part of the judicial system … but … for a juror to lie during voir dire (the “stealth approach”) is a crime, and brazen lawlessness in the jury box—the one place where the law ought to be most carefully weighed and respected—sets an extremely dangerous precedent.”

So, jury nullification is important, legitimate, and even “the point of having a jury system”, but it’s now against the law, so give it up. He trots out reasons not to, even the times that the judges and lawyers, appalled at the freedom the jury might have, have decided to restrict that freedom, but he ignores the elephant in the room.

If the government is violating your civil rights (in this case, your right to judge the law), why are you morally obligated to obey the law and cooperate with the violation?

So I have several points of disagreement. Of course, my disagreements are from a moral standpoint, and not a legal one.

“For a juror to lie to get on a jury so as to nullify the outcome is contempt of court.” Okay, but what if I lie simply because it’s none of their business whether or not I might later decide to nullify?

“brazen lawlessness in the jury box—the one place where the law ought to be most carefully weighed and respected” This is, in my opinion, a self-contradictory statement. The entire point of nullification is weighing the law. The jurors must not be bound by the law if they are to be weighing it.

By characterizing nullification as: “Choosing to participate in order to throw a wrench into the works”, he shows his prejudice. The wrench is the laws depriving jurors of their civil right to judge the law. The ’stealth option’ is the repair to the system.

The point of the article is that nullification will not end the drug war. I agree. But handing control back to the jury that they are entitled to exercise, is a fight worth fighting all on it’s own.

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The Magic DUI Bullet

According to this AP story, California has decided that “Police may enter Californians’ homes without warrants to arrest those suspected of driving under the influence”.

OK then, the police suspect (or claim to suspect) that a person may have been driving under the influence. So they bust in the door if it isn’t opened for them. Arrest the suspect. All without having to demonstrate probable cause.

Now the real fun starts.

Search the entire house for weapons to ’secure the area’. Look around for other interesting evidence. The infamous ‘arms length’ search for anything else they can find. What the heck, bring in the drug dog from the back seat as well.

When you’re done, drop the DUI for lack of evidence, but charge the poor dupe, or anyone else in the house, with everything else from drugs to child abuse, based on the warrantless search.

That’s civilized justice, Kalifornia style.

Update: The Cranky Insomniac let me know that TheAgitator was ahead of me, and even remembered the very similar Michigan recent case.

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Another Victory in the Drug War

Money flows out of the country, violence increases, honest people treated like criminals, no reduction in drug use. Looks like a typical victory to me.

Shutdown Of U.S. Labs Fails To Stop Spread Of Deadly Drug

Some snippets:

This deadly drug is now a growth industry for Mexico’s deadly drug cartels. They’re replacing small U.S. kitchen labs with Mexican super labs.

They are pretty much using the same routes that they’ve used in the past with cocaine and with marijuana.

By some estimates, as much at 80 percent of the meth on U.S. streets comes from Mexico.

DEA has been able to take a lead with our Mexican counterparts in order to prevent the importations of pseudoephedrine coming into Mexico

Tijuana now has a growing number of meth addicts seeking help at one of the growing number of rehab centers.

“It’s no longer just the drugs passing through Mexico to the United States. We’re now consumers,” said one Mexican addict.

I notice the Mexican labs are using the simpler ephedrine based recipe, rather than the psuedo-ephedrine based recipe the US labs worked with. So the DEA trying to reduce Mexican imports of psuedo-ephedrine are an interesting line to see.

a growing crisis for law enforcement on both sides of the border.

The very definition of a drug war victory.

via Hit and Run

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Elderly Couple Hospitalized After Cops Raid Wrong House

I’m getting really tired of reading about grandparents getting beat up by SWAT teams. There is no excuse for this kind of abuse.

“We had good information from a reliable source that had been backed up by a purchase of narcotics linked to the address. However, when we arrived at the designated address, there were two houses on the lot. We hit the larger of the two houses.

“It was the wrong house,” (police Capt. Shannon) Beshears said. “The house was totally dark and the TACT members went through to the bedroom looking for the suspects.”

A man and a woman — both in their 80s — were injured as TACT team members secured the house although no drugs were found. There were children in the house also, but they were not awakened, Beshears said.

Beshears said the woman received a dislocated shoulder and the man received bruised ribs. Both were taken to Baptist Memorial Hospital-DeSoto, but both asked police not to identify them.

And if this elderly couple DOES try to sue over this, the good captain can just go ahead and sieze their home, since there was a drug arrest made. Later. In the other house.

No police state here, nothing to see, move along.

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Civil Rights Progress

Cato @ Liberty describes three recent cases that reaffirm the basic right of the citizen to be an independent, thoughtful agent when on a jury. It’s progress.

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It doesn’t hurt enough yet, do it again

Congress readies broad new digital copyright bill
via CNET News.com

Expanding and extending the DMCA, since everyone in America is buying pirated CDs and DVDs instead of legit copies.

We really need:

  • expanded restrictions on software

    that’ll stimulate new businesses

  • federal police with more wiretapping and enforcement powers

    just look at how responsible they are with the powers they have today

  • a new federal crime of just trying to commit copyright infringement punished by 10 years in prison (even if the copy attempt fails)

    DRM software that dials 911 when you use it on a protected disk?

  • restrictions saying nobody may “make, import, export, obtain control of, or possess” software or hardware that can be used to bypass copy-protection devices

    Give up your VCR, and what about Windows? Can’t use a computer to make a copy without the OS

  • legal protection for computer hacking like Sony’s rootkit.

    because hacking a few million computers is OK if you’re an RIAA member

  • 20 years in prison for excerpting too much of a news article on your web site

    keeping the punishment at an appropriate level for the crime

  • civil asset forfeiture penalties for anything used in copyright piracy following the rules established by federal drug laws

    lose your computer even if you’re innocent. But that’s OK, these laws have never been abused, right?

I enjoyed the bit about “large-scale criminal enterprises involved in intellectual-property theft”. Yeah, those CD copying and importing gangs have been all over the news.

Fair use goes out the window, copyrights are perpetual, and they even invoked fighting terrorism. It MUST be a good idea.

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The 9th Circuit Blows It

via The Volokh Conspiracy

While claiming to reaffirm “the importance of preserving student speech about controversial issues generally”, a 2-1 decision has asserted that some opinions are more equal than others.

These two, Thomas and Reinhardt, have asserted that on controversial topics touching on “minority status such as race, religion, and sexual orientation”, which essentially means only certain races, religions, and sexual orientations, the non-minority viewpoint has no first amendment protection.

The decision

The disent

The conclusion to draw here is that a disruptive event in a school, even one with a history of disruption, is permissible if it supports a minority, and that any and all contradictory speech may be foreclosed because it might cause a disruption.

It violates the right to not be offended, that attaches only to approved ‘minorities’.

Update: This analysis of another 9th decision that fits the pattern.

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A Theoretical Case Against Judicial Review

Via ProfessorBainbridge, Jeremy Waldron of Yale presents a Case Against Judicial Review which even the author describes as “independent of both (judicial review’s) historical manifestations and questions about its particular effects” and “standing apart from arguments about the way judges exercise their power”. Fair enough, but very wrong in typical ivory tower fashion. From the summary:

This Essay states the general case against judicial review of legislation clearly and in a way that is uncluttered by discussions of particular decisions or the history of its emergence in particular systems of constitutional law. The Essay criticizes judicial review on two main grounds. First, it argues that there is no reason to suppose that rights are better protected by this practice than they would be by democratic legislatures. Second, it argues that, quite apart from the outcomes it generates, judicial review is democratically illegitimate. The second argument is familiar; the first argument less so.

Based on these quotes, I argue that the professor is engaging in purely theoretical arguments regarding some, perhaps utopian, ‘democracy’. His conclusions have no bearing at all on American law.

The author proceeds to make familiar arguments supporting legislative primacy. Even in his definition of judicial review, he is quick to state that judicial review of executive action and administrative decisionmaking is acceptable. The elected executive is to be subject to the rule of law, although the elected legislature is to be exempted. He never makes a case for this disparate handling.

He gives an example of US federalism decisions, concluding “it is settled by voting among justices, … and whichever side has the most votes on the Court prevails. It is not clear that this is an appropriate basis for the settlement of structural terms of association among a free and democratic people.”

Here, I agree. The appropriate method is to change the Constitution if you want to change the structure. But most people who want to achieve a structural change are unwilling to subject their concept to the kind of debate that it takes to achieve that. So they endorse the ‘living constitution’ theories and make the changes through the courts. The problem isn’t that judges can overrule the legislature, the problem is that some judges think they should overrule the Constitution.

I think that Waldron consistently and deliberately miscasts his argument. Two examples:

First, “Should judges have the authority to strike down legislation when they are convinced that it violates individual rights?” is not a question that should occur to an American judge. The question is properly framed “Should judges have the authority to strike down legislation when they are convinced that it exceeds the authority granted Congress by the Constitution?” I would answer, “Yes”.

Second, “judicial review of legislation is inappropriate as a mode of final decisionmaking in a free and democratic society.” is purely inapplicable to the US. The decision of the Supreme Court may be overriden by two other groups. The penultimate decision is made by Constitutional amendment. The final decision is handed down by “twelve good men and true” who refuse to enforce a law they disagree with. His argument is also inapplicable because he seems to confuse a Constitutional Republic with a Democracy.

Even as an exercise in theoretical law (perhaps Philosophy would be a better name), this essay is wrongheaded in its simplistic reliance on ‘democracy’ as an unconditional good while ignoring that fact that a political system and its citizens are always going to be ordinary, corruptible human beings. The very same stumbling block that trips up the socialists.

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Preemptive Use of Force

I caught Professor Bainbridge’s post on International Law and the Preemptive Use of Force, and it really struck a nerve. His excerpt of the article by Tony Arend (warning: subscription required) suggested:

First, […] preemptive force in self-defense should only be undertaken unilaterally if the Caroline criterion of imminence was met. […] Second, […] the use of preemptive force should be undertaken in the absence of imminence only with the approval of the Security Council. […] Third, the United States should acknowledge that existing international law relating to the use of force is highly problematic and seek, through the Security Council, to move toward the development of a legal regime that would be truly authoritative and controlling of state behavior.

First, the Caroline criteria are generally stated as “necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment of deliberation.” (found here, along with some good discussion by the Carnegie Council on Ethics and International Affairs.)
This formula seems to be poorly regarded by international lawyers, except when used as an after-the-fact justification. But accepting these criteria in the case of terrorism based on WMD can actually make unilateral action MORE likely.

Second, a Council on Foreign Relations report has this:

There emerged a strong consensus that the global war on terrorism poses a special case. Because terrorists pose an ever-present threat of striking innocents, they perpetually satisfy the criteria of imminence. Moreover, as non-state actors, they divorce themselves from the obligations of international law, and in the process forfeit any concomitant protections.

So terrorists with WMD are a perpetually imminent threat, satisfying forever the Caroline criteria, and at the same time these terrorists are a violation of international law and are thus removed from the law’s protection. This is also consistent with holding that states that harbor terrorists are engaged in a proxy war against the targets of terrorism.
The Carnegie Council and other seem content to rely on the UN. I would submit that the UN has proven over the last 25 or more years to be useless in international affairs. While the UN and it’s supporters credit it with keeping the peace since 1945, I think that detente, MAD and the carefully maintained balance between the USA and the USSR had a lot more to do with what peace there was than this old dictator’s club. It would be foolish and irresponsible to allow the UN Security Council to have a veto over the defense of the US. Russia, France and China do not have our best interests at heart.

Third, international law regarding use of force is not particularly problematic. The Caroline criteria were widely used prior to 1945. The UN charter provides additional definition. What is problematic is the status of terrorists. As I addressed in a post on national sovereignity, nations have a responsibility to control the threats emerging from their borders. Failure to control the threat gives the victim the right to control it themselves. Backing terrorists today is no different from hiring privateers or issuing Letters of Marque in the past, and should be considered an act of aggression against anyone harmed by these terrorist groups.
The ‘problematic’ thing is the way the UN and others stand in the way and defend the sponsors of these aggressive acts from the natural consequences. A ‘legal regime truly authoritative and controlling of state behavior’ in this situation is one that acknowledges the right of the victim of state sponsored terrorism to defensively attack the sponsoring state.

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Case should be about facts. Imagine that.

At least one journalist gets it. Tom Lyons, commenting in the Herald Tribune, notes that “questions for a judge or jury in a libel case, I’d think, would be about what damaging information Patten provided, if any, and whether it was false.”

Unlike news reporter Paul Quinlan’s article in the same, where Quinlan wrote “The case is one of many that is raising questions about the extent to which journalists’ protections and rights should carry over to the blogosphere, where anyone with a computer, an Internet connection and an opinion can hope to find an audience,” a fatuous and elitist concept.

Lyons’ money quote: “everyone has the same guaranteed right to freedom of the press whether they write professionally or not”


via Reason Express

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Legal (Monkey) Business as Usual

For more proof that we need some sort of loser-pays system in civil liability law, the Center for Science in the Public Interest (CSPI) and others have threatened Viacom and Kellogg with a billion dollar lawsuit over TV commercials. Their demand letter fails to cite an actual cause of action.

They reference Massachusetts General Law, Chapter 93A which has much explanation and precedural statute but basically reads “Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.” Pretty simple. Massachusetts refers to the Federal Trade Commission Act (15 U.S.C. 45(a)(1)) which has similar wording. “Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful.”

What they don’t do is identify an unfair or deceptive act, anywhere in the letter.

Based on this letter, CSPI wants the court to order:

  1. That CSPI’s definition of “food of poor nutritional quality” be established as correct.
  2. That such food may not advertised “directly before, during, or directly after any Nick Jr. programming” or any other programming where 15% of the audience is under 8.
  3. That such food may not be advertised on any TV channel, magazine, G or PG movie, or web site when 15% of the audience is under 8.
  4. That such food may not be advertised in any other way to children under 8.
  5. Damages of $25 for every time any child under 8 sees any such advertising, AND every time a parent purchases such food.
  6. Attorney’s fees.

So, CSPI wants to (1) replace the legislature as the definer of law, (2, 3, 4) create a content based restriction on legal speech, (5) make a legal product effectively illegal to sell, and (6) be paid for doing it.

Whether or not you like the idea of kids eating Captain Crunch when their parents say it’s OK, this is a baldfaced attempt to end-run the democratic process and make law in the courts. This lawsuit violates the parents’ right to feed and raise their kids as they see fit. It violates the basic right of Viacom and Kellogg to engage in lawful commerce. And the “heads I win, tails you lose” state of civil law violates all of our right to be secure in our persons and our possessions. CSPI can’t get their program through legislatively, so they file a lawsuit that will cost the companies millions to defend even if they win. And the threat of a huge potential judgement, however improbable, makes it more likely that the defendants will settle.

Which just gives CSPI more money to go after the next target. But CSPI has nothing to lose. They can file one huge, frivolous, groundless lawsuit after another and never have to pay for their actions. This kind of irresponsible behavior is destroying many legal industries and raising prices of just about everything you buy, with no significant benefit.

This suit should be dismissed in summary judgement, but it won’t be. The legal ‘profession’ has decided that just about every case deserves to be heard, no matter how much everyone else has to pay to lawyers.

Maybe Shakespeare was right.

via Overlawyered.

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Italian Meatballs

An Italian judge has ordered a priest to appear in court this month to prove that Jesus Christ existed.

This might just be another ‘look at those whacky europeans’ moment, unless you remember that just 8 months ago we heard that the Italians were prosecuting a writer for insulting the Muslim faith. Put that together with this suit charging the Catholic church with “fraud, abuse of popular credulity and impersonation” based on the claims of a militant atheist, and it seems that defamation of religion is OK with the authorities if the religion is Christian.

A shame those whacky europeans don’t believe in free speech or a level playing field.

via Daily Pundit, here.

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Federal rights via Assisted Suicide

Here’s a biggie. Gonzales v. Oregon (formerly Oregon v. Ashcroft)
To sum things up;

“Congress enacted the Controlled Substance Act (”CSA”) in 1970 as part of a comprehensive federal scheme to regulate and control certain drugs and other substances. A 1984 Amendment to the Act authorized the Attorney General to prohibit medical practitioners’ use of a controlled substance if that use was “inconsistent with the public interest.” In 2001, Attorney General Ashcroft determined that Oregon physicians’ use of a federally registered controlled substance to facilitate physician-assisted suicide was not a legitimate medical purpose, despite an Oregon statute which authorized such use.
In Oregon’s suit, brought to enjoin Ashcroft from giving any legal effect to his directive, the District Court ruled for Oregon and issued a permanent injunction, and the Court of Appeals for the Ninth Circuit affirmed. Oregon argues that since states traditionally regulate medical practices, Gonzales (the new Attorney General, replacing Ashcroft) must show that Congress expressly intended to authorize the Attorney General to make such a determination. Gonzales argues that the Attorney General’s reasonable interpretation of a federal regulation is entitled to deference, even without a clear statement of legislative intent, and that Ashcroft’s interpretation of the CSA is reasonable.
In the alternative, Gonzales argues that Ashcroft’s interpretation is consistent with Congress’s intent in passing the CSA and the 1984 Amendment. This case will decide the fate the Oregon statute by either expanding or limiting the federal government’s authority over traditionally state-regulated medical practices. This case also has far-reaching moral and ethical implications that go beyond the scope of states’ rights.”

The whole issue of Assisted Suicide is a personal right. The Constitution upholds personal rights throughout, and especially in the ninth amendment. But this particular issue relates to states rights vs federal rights. As I see this issue, the federal government does not have the right, under the constitution [tenth amendment], to regulate how the states manage medical practice.

With that said above, here I diverge into my own internalization of the ensuing debate.

The contrary argument could be waged based on the power-grab congress has been performing, under section 8 of the constitution (citing “Regulation of inter-state trade”). Some would say that any practice that has an effect on the trade between states, allows congress to regulate that practice. Given that interpretation of the constitution, congress indeed would be allowed to to regulate the medical practice by way of drug sales across state lines.
(Example: Wickard v. Filburn. Where a farmer was found out of compliance of the Agricultural Adjustment Act of 1938 (an act to regulate the amount of wheat sold across state boundries) for growing more wheat than allowed. The expressed reason for the wheat was for feeding this person’s farm animals, and none for use outside of his own property.)

But I invite you to look at the wording of Article 1, section 8 again.

To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

(my emphasis)

This section has been interpreted to mean that congress can regulate the industries that produce goods that travel between the states (i.e. Interstate Trade). And then interpreted again to mean that congress can regulate those goods that impact the industries that produce the goods that travel between the states (such as what happened in the above Wickard v. Filburn.)

I say that Article 1 does not allow congress to regulate the industries or the goods that cross the borders. Only that they can regulate how the individual states handle the trade between themselves. To relate again to the Agricultural Adjustment Act of 1938, Congress was right (In theory, at least. I have not studied the Act, so I can’t vouch for the practice.) to attempt to regulate the amount of wheat travelling between state borders for the purpose of preventing shortages. But Congress did not have the power (under article 1 of the constitution) to regulate what happened within the state’s borders. Let alone what happened within the farmer’s property borders.

This over-reaching interpretation of the Agricultural Adjustment Act of 1938 by the supreme court has helped pave the way for the kinds of attitudes of congress that allow them to think they can regulate the way doctors treat their own patients.

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Public Employees, Unions, Schools

Found at gullyborg via Upper Left Coast.

There is a strike looming for the Oregon Trail School District.

To address his second point first, his conclusion is

Making threats of violence is a crime. … Any striking teacher who harms, or threatens to harm, a substitute teacher should never be allowed near our children again.

I agree fully. But the last I heard, it was specifically not a crime for a union picketer to threaten and in some cases to use violence. If these laws are still on the books, they should be repealed or invalidated soonest. Returning to the first point,

Now I have always thought that teacher’s unions should be barred from striking, the way air traffic controllers and other unions are.

This makes sense to me, but in an inverted sort of way. It’s a rational reaction to an unsane situation. To hit the high points, because

… the Supreme Court has found a constitutional right to an education.

and because

when a public union strikes, there is often no alternative for the people .

and finally

This amounts to sheer blackmail, especially when the service withheld is essential to the public as a whole.


Congress made it illegal for certain unions, such as the air traffic controllers, to strike. But Congress didn’t take it far enough. As long as there is no viable alternative to government, it should be illegal for ANY government employee to strike.

I find this to be a rational conclusion, but also wrong. Taking a government job should not be contingent on giving up your civil rights. Organizing to negotiate collectively is the best way to balance the power of the employer. People should not have to give that up when the employer happens to also be the sole employer available in that line of work as well as possessing a monopoly on the use of force. If that sacrifice IS necessary, it should be applied to the smallest number of people possible. Maybe there’s a better answer.

The key phrase in the problem seems to be “As long as there is no viable alternative”. Perhaps the root of the problem lies in having the government actually provide the services. If schools were run by a series of private companies, a strike against one would be of little effect on students. Perhaps the real answer to dealing with public employee strikes is to simply reduce the number of public employees to the bare minimum required to provide services that cannot be provided any other way?

The best way to deal this problem is to reduce the number of public employees to the bare minimum. Privatize and outsource the rest of the work. Eliminate the unnecessary government monopolies. Then this problem (and others) simply disappear.

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