Dog Brothers Public Forum
Return To Homepage
Welcome, Guest. Please login or register.
April 18, 2014, 04:16:18 PM

Login with username, password and session length
Search:     Advanced search
Welcome to the Dog Brothers Public Forum.
79131 Posts in 2226 Topics by 1036 Members
Latest Member: Evgeny Vasilyev
* Home Help Search Login Register
+  Dog Brothers Public Forum
|-+  Politics, Religion, Science, Culture and Humanities
| |-+  Science, Culture, & Humanities
| | |-+  Legal issues
« previous next »
Pages: 1 2 3 [4] Print
Author Topic: Legal issues  (Read 31972 times)
Crafty_Dog
Administrator
Power User
*****
Posts: 29587


« Reply #150 on: June 26, 2011, 12:45:34 PM »

Amen!!!
Logged
G M
Power User
***
Posts: 11489


« Reply #151 on: June 26, 2011, 08:57:46 PM »

Sir Robert Peel's Nine Principles
 
--------------------------------------------------------------------------------
The basic mission for which the police exist is to prevent crime and disorder.

The ability of the police to perform their duties is dependent upon public approval of police actions.

Police must secure the willing co-operation of the public in voluntary observance of the law to be able to secure and maintain the respect of the public.

The degree of co-operation of the public that can be secured diminishes proportionately to the necessity of the use of physical force.

Police seek and preserve public favour not by catering to public opinion but by constantly demonstrating absolute impartial service to the law.

Police use physical force to the extent necessary to secure observance of the law or to restore order only when the exercise of persuasion, advice and warning is found to be insufficient.

Police, at all times, should maintain a relationship with the public that gives reality to the historic tradition that the police are the public and the public are the police; the police being only members of the public who are paid to give full-time attention to duties which are incumbent on every citizen in the interests of community welfare and existence.

Police should always direct their action strictly towards their functions and never appear to usurp the powers of the judiciary.

The test of police efficiency is the absence of crime and disorder, not the visible evidence of police action in dealing with it.
Logged
JDN
Power User
***
Posts: 2004


« Reply #152 on: June 27, 2011, 09:06:59 AM »

That should be posted in every police station!
Logged
JDN
Power User
***
Posts: 2004


« Reply #153 on: June 27, 2011, 10:26:25 AM »

I'm the resident liberal here; make love not war.   smiley

So why, under the First and Fourteenth Amendments is CA allowed to prohibit minors to buy Playboy Magazine,
but it is not ban violent games?

http://www.latimes.com/news/nationworld/nation/la-na-court-games-20110628,0,6836552.story
Logged
Crafty_Dog
Administrator
Power User
*****
Posts: 29587


« Reply #154 on: June 27, 2011, 01:01:27 PM »

GM, I would love to see that posted in the Police-Civilian interaction thread on the Martial Arts Forum.
================


For the past century, the imperial power of the law seemed unstoppable, as legislation and litigation reached into every area of life. But now the law has met its match. Technology raises issues so quickly and unpredictably that judges are reduced to King Canutes, trying to stop the flow of ocean tides with their bare hands.

Consider two similar cases based on rapid changes in technology occurring a century apart. Both dealt with "hot news," a legal doctrine that determines who owns news for how long. Long dormant, the issue has heated up as services such as Google and aggregators such as Huffington Post drew large audiences through summaries of original reporting by news organizations.

These cases were hard calls for judges in 1918 and again in the case decided last week. Here are the facts in the earlier case, International News Service v. Associated Press:

The International News Service was founded by William Randolph Hearst as an alternative to the Associated Press. Like his newspapers, INS opposed America's entry into World War I. British military censors tired of its exaggerated reporting (one headline read, "Zeppelins Set London Ablaze!") and banned Hearst's newswire from using the undersea cable that linked to telegraphs in the U.S. that delivered reports to newspapers.

Hearst's newswire responded by copying AP stories, sometimes obtained by bribing AP employees, and sending the reports to its member newspapers as its own. "The distribution of news matter throughout the country is principally from east to west," Supreme Court Justice Mahlon Pitney observed, "and, since in speed the telegraph and telephone easily outstrip the rotation of the earth, it is a simple matter for defendant to take complainant's news from bulletins or early editions of complainant's members in the eastern cities and, at the mere cost of telegraphic transmission, cause it to be published in western papers issued at least as early as those served by complainant."

The news itself, as opposed to the words in which it is written, is not subject to copyright. But the court found that INS had misappropriated a "quasi-property right" by "endeavoring to reap where it has not sown, and by disposing of it to newspapers that are competitors of complainant's members . . . appropriating to itself the harvest."

View Full Image

Getty Images/Imagezoo
 .Last week's case, Barclays Capital v. Theflyonthewall.com, turned out differently. The website uses the Internet to redistribute information the way Hearst's newswire used the telegraph. The plaintiffs in the case, which include Merrill Lynch and Morgan Stanley, invest in research about companies and markets and then share their market-moving trading recommendations with their biggest trading customers. They make the recommendations public only later, after funding the research through trading commissions.

Theflyonthewall.com undermined this system by reporting these recommendations quickly after their distribution to big investors; it's hard to keep secrets these days. A trial judge had sided with the banks and ordered the site to wait until 30 minutes after the opening of the stock exchange to republish the banks' buy-sell-hold recommendations, giving the banks' customers time to trade.

But the Second U.S. Circuit Court of Appeals ruled last week that the website could continue its work. Unlike in the Hearst newswire case, Theflyonthewall.com is not free riding when it collects and distributes news about banks' research. "The firms are making the news," Judge Robert Sack wrote. "Fly, despite the firms' understandable desire to protect their business model, is breaking it."

Judge Sack knows the news industry well after representing Dow Jones and other media companies when he was in private practice. He is philosophical about the power of judges to stem the tide of technology, even when there's unfairness. "The adoption of new technology that injures or destroys present business models is commonplace," he writes.

There can't be laws against using technology to spread news. Justice Louis Brandeis wrote as much in his 1918 dissent in International News Service. "With the increasing complexity of society, the public interest tends to become omnipresent, and the problems presented by new demands for justice cease to be simple. Then the creation or recognition by courts of a new private right may work serious injury to the general public unless the boundaries of the right are definitely established and widely guarded."

But just because the law can't control how news spreads does not make technology a pure good. Google and Twitter filed a brief in Theflyonthewall, warning: "Hot news becomes cold in a nanosecond in the modern world." They don't want restriction on their business practices. But as in the cases of the not-so-innocent Hearst newswire and Theflyonthewall.com, Internet aggregators profit from the work of others as they undermine their business models.

Judges are right to stand aside to let the tide of technology flow freely. It's only through more innovation, unfettered by new legal constraints, that technology will deliver new ways to fund original reporting, whether by journalists or equity analysts.

Logged
Crafty_Dog
Administrator
Power User
*****
Posts: 29587


« Reply #155 on: August 22, 2011, 02:45:21 PM »



By CLIFFORD WINSTON
AND ROBERT W. CRANDALL
The job market is not looking bright for Americans of all walks of life, even Ivy League college graduates and those with advanced degrees. For example, a new wave of law school graduates has just taken state bar examinations, which they must pass to obtain a license to practice law. But after accumulating as much as $150,000 in law school debt (likely on top of undergraduate debt), many of those test-takers are concerned that jobs in their field are vanishing.

Is there really an excess supply of lawyers? The Senate Judiciary Committee is investigating the subject while the New York Law School and the Thomas Cooley Law School in Michigan are being hit with class action suits claiming that they fraudulently inflated employment statistics to lure prospective students. But the solution proffered by many in the legal community—to put new limits on entry into the legal profession—is not the answer and will make the problem worse over the long term.

The reality is that many more people could offer various forms of legal services today at far lower prices if the American Bar Association (ABA) did not artificially restrict the number of lawyers through its accreditation of law schools—most states require individuals to graduate from such a school to take their bar exam—and by inducing states to bar legal services by non-lawyer-owned entities. It would be better to deregulate the provision of legal services. This would lower prices for clients and lead to more jobs.

Occupational licensing limits competition and raises the cost of legal services. But those higher costs are not justified when the services provided by lawyers do not require three years of law school and passing a particular test. One example is LegalZoom.com, an online company which sells simple legal documents—documents that should not require pricey lawyers to prepare—like do-it-yourself wills, uncontested divorce documents, patent applications and the like.

The competition supplied by new legal-service providers, who may or may not have some type of law degree and may even work for a non-lawyer-owned firm, will not only lead to aggressive price competition but also a search for more efficient methods to serve clients.

Every other U.S. industry that has been deregulated, from trucking to telephones, has lowered prices for consumers without sacrificing quality. For example, most regulated large airlines used to operate with large numbers of empty seats, particularly on longer routes. Once deregulation allowed Southwest Airlines, a smaller regional carrier, and other new carriers to offer service on any route, airline fares declined dramatically and the industry operated with far fewer empty seats and more employees. Deregulation of wireless, cellular telephone services and the entry of new carriers has led to the lowest wireless rates in the developed world and stimulated huge expenditures and associated employment in constructing new networks.

Entry by new firms—sometimes from other industries—spurs innovation. The legal industry will be no different. Ford, Honda and Toyota moved into motor vehicle production from bicycle, motorcycle and farm-equipment production, respectively. More recently, Apple moved from computers into mobile telephones (the iPhone), putting enormous competitive pressure on industry giants such as Nokia, Motorola and Research in Motion (Blackberry). The resulting innovations improved quality and lowered prices while also expanding employment.

Allowing accounting firms, management consulting firms, insurance agencies, investment banks and other entities to offer legal services would undoubtedly generate innovations in such services and would force existing law firms to change their way of doing business and to lower prices.

Entry deregulation would also expand individuals' options for preparing for a career in legal services, including attending vocational and online schools and taking apprenticeships without acquiring formal legal education. Established law schools would face pressure to reduce tuition and shorten the time to obtain a degree, which would substantially reduce the debt incurred by those who choose to go to those schools.

Supporters of occupational licensing to restrict the number of lawyers in the U.S. are wrong to assert that deregulation would unleash a wave of unscrupulous or incompetent new entrants into the profession. Large companies seeking advice in complex financial deals would still look to established lawyers, most of whom would probably be trained at traditional law schools but may work for a corporation instead of a law firm.

Others, seeking simpler legal services such as a simple divorce or will, would have an expanded choice of legal-service providers, which they would choose only after consulting the Internet or some other modern channel of information about a provider's track record. Just as the medical field has created physician assistants to deal with less serious cases, the legal profession can delegate simple tasks.

The track record of deregulation naysayers is hardly impressive—after all, some predicted in 1977 that airline deregulation would lead to a United Airlines monopoly. And while we cannot predict all the effects of legal services deregulation, we are confident that those services would be more responsive to consumers and that there would be more jobs in the legal profession.

Mr. Winston is a senior fellow at the Brookings Institution, where Mr. Crandall is a nonresident senior fellow in the Economic Studies Program. They are co-authors, along with Vikram Maheshri, of "First Thing We Do, Let's Deregulate All the Lawyers" (2011, Brookings Press).
Logged
Crafty_Dog
Administrator
Power User
*****
Posts: 29587


« Reply #156 on: March 20, 2012, 06:21:13 AM »



http://www.nytimes.com/2012/03/20/business/for-lsat-sharp-drop-in-popularity-for-second-year.html?nl=todaysheadlines&emc=edit_th_20120320
Logged
bigdog
Power User
***
Posts: 2101


« Reply #157 on: April 03, 2012, 04:33:38 PM »



  is this unprecedented?
« Reply #876 on: Today at 02:12:44 PM »     

--------------------------------------------------------------------------------

http://www.cbsnews.com/8301-504564_162-57408827-504564/appeals-court-fires-back-at-obamas-comments-on-health-care-case/

Appeals court fires back at Obama's comments on health care case

In the escalating battle between the administration and the judiciary, a federal appeals court apparently is calling the president's bluff -- ordering the Justice Department to answer by Thursday whether the Obama Administration believes that the courts have the right to strike down a federal law, according to a lawyer who was in the courtroom.

The order, by a three-judge panel of the U.S. Court of Appeals for the 5th Circuit, appears to be in direct response to the president's comments yesterday about the Supreme Court's review of the health care law. Mr. Obama all but threw down the gauntlet with the justices, saying he was "confident" the Court would not "take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress."

Overturning a law of course would not be unprecedented -- since the Supreme Court since 1803 has asserted the power to strike down laws it interprets as unconstitutional. The three-judge appellate court appears to be asking the administration to admit that basic premise -- despite the president's remarks that implied the contrary. The panel ordered the Justice Department to submit a three-page, single-spaced letter by noon Thursday addressing whether the Executive Branch believes courts have such power, the lawyer said.

The panel is hearing a separate challenge to the health care law by physician-owned hospitals. The issue arose when a lawyer for the Justice Department began arguing before the judges. Appeals Court Judge Jerry Smith immediately interrupted, asking if DOJ agreed that the judiciary could strike down an unconstitutional law.

The DOJ lawyer, Dana Lydia Kaersvang, answered yes -- and mentioned Marbury v. Madison, the landmark case that firmly established the principle of judicial review more than 200 years ago, according to the lawyer in the courtroom.

Smith then became "very stern," the source said, telling the lawyers arguing the case it was not clear to "many of us" whether the president believes such a right exists. The other two judges on the panel, Emilio Garza and Leslie Southwick--both Republican appointees--remained silent, the source said.

Smith, a Reagan appointee, went on to say that comments from the president and others in the Executive Branch indicate they believe judges don't have the power to review laws and strike those that are unconstitutional, specifically referencing Mr. Obama's comments yesterday about judges being an "unelected group of people."

I've reached out to the White House for comment, and will update when we have more information.

CBSNews.com Special Report: Health Care Reform 
Logged
Crafty_Dog
Administrator
Power User
*****
Posts: 29587


« Reply #158 on: April 04, 2012, 08:41:26 AM »

BD:

Before she was a Justice, Kagan worked on the passage of Obamacare.   My understanding is that this means she should recuse herself from the Obamacare decision.  She has not.

What are your thoughts on this?
Logged
DougMacG
Power User
***
Posts: 5524


« Reply #159 on: April 04, 2012, 11:45:30 AM »

Yes, I also am interested to know BD latest thoughts on this.  It did seem Kagan stayed somewhat in the background on questioning.  My understanding is that she largely denies the involvement Crafty suggests and it is her own decision to make on recusal.  OTOH, critics want to know details of a 2 month Nixon-like gap in her govt email record ot know her involvement and dishonesty IMHO would set up a political case for impeachment - that I'm sure will never happen...

Remember Thomas' critics were also strong on recusal for his wife's political involvement.
Logged
bigdog
Power User
***
Posts: 2101


« Reply #160 on: April 04, 2012, 12:01:04 PM »

Recusal is completely up to the justice to determine.  There have been many recent examples in which Democrats/liberals called for a conservative justice to recuse himself.  DMG notes but one.  There were calls for Scalia to recuse himself when his hunting partner, VP Cheney, had a case before the court about extended executive privilege to the vice president.  According to former Chief Rehnquist, "There is no formal procedure for court review of the decision of a justice in an individual case," Rehnquist said in a letter to Democratic Sens. Patrick J. Leahy of Vermont and Joe Lieberman of Connecticut. "That is so because it has long been settled that each justice must decide such a question for himself" (see http://articles.latimes.com/2004/jan/27/nation/na-duck27 for citation).  In the end, unless there is a written rule, it is up to the justice to decide.  While I sometimes disagree vehemently with justices' decisions in this regard, I like it being up to the justice.  By the way, the decision in Marbury v. Madison, which seems to be getting a good deal of reading in the wake of the president's comments about the USSC ACA case, is a very fine example of when recusal should have occurred. 
Logged
Crafty_Dog
Administrator
Power User
*****
Posts: 29587


« Reply #161 on: April 05, 2012, 10:57:40 AM »

Understood.

I'd like to ask you to take it a step further.

SHOULD Kagan have recused herself?

Would an appellate or trial judge with similar connection to a case have to recuse?
Logged
bigdog
Power User
***
Posts: 2101


« Reply #162 on: April 05, 2012, 02:49:34 PM »

And the letter:

http://legaltimes.typepad.com/files/doj_letter_smith.pdf



  is this unprecedented?
« Reply #876 on: Today at 02:12:44 PM »     

--------------------------------------------------------------------------------

http://www.cbsnews.com/8301-504564_162-57408827-504564/appeals-court-fires-back-at-obamas-comments-on-health-care-case/

Appeals court fires back at Obama's comments on health care case

In the escalating battle between the administration and the judiciary, a federal appeals court apparently is calling the president's bluff -- ordering the Justice Department to answer by Thursday whether the Obama Administration believes that the courts have the right to strike down a federal law, according to a lawyer who was in the courtroom.

The order, by a three-judge panel of the U.S. Court of Appeals for the 5th Circuit, appears to be in direct response to the president's comments yesterday about the Supreme Court's review of the health care law. Mr. Obama all but threw down the gauntlet with the justices, saying he was "confident" the Court would not "take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress."

Overturning a law of course would not be unprecedented -- since the Supreme Court since 1803 has asserted the power to strike down laws it interprets as unconstitutional. The three-judge appellate court appears to be asking the administration to admit that basic premise -- despite the president's remarks that implied the contrary. The panel ordered the Justice Department to submit a three-page, single-spaced letter by noon Thursday addressing whether the Executive Branch believes courts have such power, the lawyer said.

The panel is hearing a separate challenge to the health care law by physician-owned hospitals. The issue arose when a lawyer for the Justice Department began arguing before the judges. Appeals Court Judge Jerry Smith immediately interrupted, asking if DOJ agreed that the judiciary could strike down an unconstitutional law.

The DOJ lawyer, Dana Lydia Kaersvang, answered yes -- and mentioned Marbury v. Madison, the landmark case that firmly established the principle of judicial review more than 200 years ago, according to the lawyer in the courtroom.

Smith then became "very stern," the source said, telling the lawyers arguing the case it was not clear to "many of us" whether the president believes such a right exists. The other two judges on the panel, Emilio Garza and Leslie Southwick--both Republican appointees--remained silent, the source said.

Smith, a Reagan appointee, went on to say that comments from the president and others in the Executive Branch indicate they believe judges don't have the power to review laws and strike those that are unconstitutional, specifically referencing Mr. Obama's comments yesterday about judges being an "unelected group of people."

I've reached out to the White House for comment, and will update when we have more information.

CBSNews.com Special Report: Health Care Reform 
Logged
bigdog
Power User
***
Posts: 2101


« Reply #163 on: April 05, 2012, 03:08:34 PM »

Probably, at least due to the appearences.  And, yes, those matter: "Two sections of Title 28 of the United States Code (the Judicial Code) provide standards for judicial disqualification or recusal. Section 455, captioned "Disqualification of justice, judge, or magistrate judge," provides that a federal judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." (citation below)

However, this http://en.wikipedia.org/wiki/Judicial_disqualification discusses the history of recusals, and offers one (and the implication) that I had not heard of. 

Understood.

I'd like to ask you to take it a step further.

SHOULD Kagan have recused herself?

Would an appellate or trial judge with similar connection to a case have to recuse?
Logged
bigdog
Power User
***
Posts: 2101


« Reply #164 on: April 05, 2012, 06:19:46 PM »

http://www.usatoday.com/news/opinion/forum/story/2012-04-02/supreme-court-obamacare-kennedy/53953470/1

"Justice Anthony Kennedy is, in a sense, the king of the United States of America. As the deciding vote on the U.S. Supreme Court in dozens of important cases where the liberals and conservatives are evenly divided, he has become, in effect, a jurisprudential monarch (hence columnist Mark Steyn's nickname for him, "the Sultan of Swing"). He has been the final word on everything from the 2000 Bush-Gore presidential election to partial-birth abortion and terrorist detention. And now he will, in all likelihood, decide the constitutionality of the Patient Protection and Affordable Care Act— aka ObamaCare."
Logged
bigdog
Power User
***
Posts: 2101


« Reply #165 on: April 05, 2012, 07:43:09 PM »

http://www.nytimes.com/2012/04/04/opinion/dowd-men-in-black.html

"How dare President Obama brush back the Supreme Court like that?

Has this former constitutional law instructor no respect for our venerable system of checks and balances?

Nah. And why should he?

This court, cosseted behind white marble pillars, out of reach of TV, accountable to no one once it gives the last word, is well on its way to becoming one of the most divisive in modern American history."


Logged
G M
Power User
***
Posts: 11489


« Reply #166 on: April 06, 2012, 12:12:18 AM »


http://www.breitbart.com/Big-Government/2012/04/03/The-Vetting-Incorrect-Lochner-Reference-Shows-Derrick-Bells-Influence-on-Obama

The Vetting - Lochner Reference Shows Bell's Continuing Influence on Obama
 


by Joel B. Pollak

In continuing his attack on the Supreme Court on Tuesday, President Barack Obama made a mistaken reference to the Lochner decision--an error that suggests just how deeply Derrick Bell affected his thinking about the Court and the Constitution.
 
James Taranto of the Wall Street Journal noted that Obama, facing questions from journalists, had cited the case of Lochner v. New York (1905) as the last time the Supreme Court had overturned an economic law passed by Congress:
 

Well, first of all, let me be very specific. Um [pause], we have not seen a court overturn [pause] a [pause] law that was passed [pause] by Congress on [pause] a [pause] economic issue, like health care, that I think most people would clearly consider commerce. A law like that has not been overturned [pause] at least since Lochner, right? So we're going back to the '30s, pre-New Deal.
 
Obama was wrong on three counts: Lochner was not decided in the 1930s; it was not the last time an economic law was overturned; and it involved a state law, not a federal one.
 
But Obama's interpretation of Lochner is an interesting one, and points directly to the influence of Derrick Bell and his radical Critical Race Theory approach to constitutional jurisprudence.
 
Law students are typically taught about Lochner as a cautionary tale, a fable about the evils of a conservative judiciary determined to strike down economic legislation, allegedly to protect entrenched interests.
 
The dissenting opinion of Justice Oliver Wendell Holmes, Jr., is often cited--in particular, his declaration that the Constitution does not enshrine laissez faire economics or "Mr. Herbert Spencer's Social Statics." But law professors often leave out Holmes's full statement, in which he also says the Constitution does not embody economic "paternalism," either.
 
The true context of Lochner was not a judicial system determined to defend the rich, but one determined to defend the freedom of contract--which, in the post-Civil War era, was felt to be a necessary corrective to laws and decisions that had protected slavery.
 
The Supreme Court of the New Deal era, after pressure from President Franklin Delano Roosevelt, eventually abandoned Lochner and granted the federal government far greater power to regulate economic activity.
 
For left-wing legal pundits, like CNN's Jeffrey Toobin, that switch--following presidential bullying--was enough to establish that "national economic problems require national solutions," and ought to have paved the way for Obamacare.
 
This was an opinion seconded by Derrick Bell. For Bell, the Lochner case was particularly important. In the same 1984 speech in which he elucidated views on the Warren Court that Obama echoed years later, Bell spoke about the Lochner decision in detail as the last gasp of conservatism -- a conservatism, he does not bother to add, that must die an ignominious death:
 

The deep depression of the 1930s brought an end to the Lochner era, a 50 year period when the Supreme Court and much of the country espoused substantive due process and, often enough, summary invalidity for any government measure intended to aid the poor or alleviate the worst abuses of big business. It required the perspective provided by the country's economic troubles for the realization to sink in that the right of contract and the protection of property rights would be meaningless under anarchy...
 
The Court decided that the error of the Lochner era was its involvement in economic arrangements, and it promptly withdrew Fourteenth Amendment protection from those claiming economic-based discrimination at the hands of the state....
 
For Bell, the Lochner case was important because it represented the last gasp of conservative jurisprudence.
 
It is noteworthy, then, that Obama went straight to Lochner in looking for a Supreme Court precedent overturning an economic law, and that he thought it had been decided more recently than 1905.
 
Just as Obama used Bell's legal writings to shape his students' understanding of the Constitution, so they continue to shape his own.
Logged
bigdog
Power User
***
Posts: 2101


« Reply #167 on: May 08, 2012, 10:29:40 PM »

http://usnews.msnbc.msn.com/_news/2012/05/08/11585227-president-obama-stingy-on-pardons-says-clemency-expert?lite
Logged
Crafty_Dog
Administrator
Power User
*****
Posts: 29587


« Reply #168 on: September 16, 2012, 10:14:31 AM »



http://www.nytimes.com/2012/09/16/business/in-prosecutors-debt-collectors-find-a-partner.html?nl=todaysheadlines&emc=edit_th_20120916
Logged
Crafty_Dog
Administrator
Power User
*****
Posts: 29587


« Reply #169 on: January 06, 2013, 12:44:39 PM »

A Liberal Who Preached Restraint
In his letters, as on the bench, Judge Learned Hand argued against judicial activism. .
By ADAM J. WHITE

If modern constitutional law has a bedrock rule, it is this: Brown v. Board of Education was correctly decided. To argue, even to imply, that the Supreme Court erred when it ended school segregation in 1954 is to exile oneself from respectable constitutional debate. "Such is the moral authority of Brown," constitutional scholar Michael McConnell wrote in 1995, "that if any particular theory does not produce the conclusion that Brown was correctly decided, the theory is seriously discredited."

Only one jurist has condemned Brown without losing his reputation, and he accomplished that feat only because he had established himself as one of the greatest judges in American history. In 1958, near the end of his half-century of service on the federal bench, New York's Judge Learned Hand used a Harvard lecture series to criticize what he saw as the Supreme Court's unprincipled judicial activism in desegregating the schools. Yet just three years later, no less a civil-rights champion than Bobby Kennedy would remark, upon Hand's death, that "he was one of the great legal minds of our history, ranking with John Marshall and Oliver Wendell Holmes."

Judge Hand rejected Brown not in spite of his progressive values but because of them. That is the major lesson imparted by "Reason and Imagination," a collection of Hand's selected correspondence edited by Constance Jordan (a retired English professor and Hand's granddaughter). The book traces Hand's intellectual journey through the words of Hand himself and those of his correspondents, especially his friends Felix Frankfurter and Walter Lippmann. It becomes clear, over the course of these letters, that the views that propelled Hand to acclaim in the first half of his career were also those that, retained with increasing rigidity and even bitterness, put him at odds with the defining legal decision of his lifetime.

Learned Hand was born in Albany, N.Y., in 1872. From his father, a lawyer, he inherited a profession; from his mother, Lydia Learned, he received his memorable name. "Learned" was, in fact, his middle name; born Billings Hand, he dropped his given name in his 20s. He studied philosophy and law at Harvard, graduated in 1896 and returned to Albany to practice law. Like his idol, Oliver Wendell Holmes Jr., Hand would find little fulfillment in the practice of law; unlike Holmes, Hand sought refuge in politics. Moving to New York in 1902 in pursuit of an interesting caseload, he soon became enamored of progressive Republican politics.

In one of the first letters presented by Ms. Jordan, a note to his cousin Augustus Hand (a future colleague on the U.S. Court of Appeals for the Second Circuit), Hand rejected the "doctrinaire individualism" of his Democratic family and embraced the view "that in a vast multitude of cases the State must and should regulate the conduct of individuals for their own welfare and modify the contractual relations which they assume towards one another."

Hand would meet Teddy Roosevelt before TR became governor; he would befriend the progressive movement's leading voice, Herbert Croly, not long after. The two affiliations, it could be said, helped to change American history. By sending TR an advance copy of Croly's "The Promise of American Life," Hand introduced TR to the "New Nationalism" that would define TR's post-presidential political life, leading TR to re-enter politics in 1912, stripping the White House from William Taft and the Republicans, and handing it to Woodrow Wilson and the Democrats. Hand would also help Croly found the New Republic magazine, to which he contributed unsigned pieces. Bored with legal practice, he secured an appointment to Manhattan's U.S. District Court for the Southern District of New York.

The legal philosophy that Hand employed as a judge, and that he extolled in his widely read essays, was the judicial restraint preached by the progressive reformers of Hand's youth. Just weeks after Hand entered Harvard Law School, the law review published James Bradley Thayer's "The Origin and Scope of the American Doctrine of Constitutional Law," an article that guided Hand's lifelong judicial philosophy.

In an era dominated by the Supreme Court's nullification of state laws concerning public health, safety and labor, Thayer argued that the courts should defer to state legislatures and uphold state laws—that is, progressive reforms of state laws—unless the laws' unconstitutionality was "so clear that it is not open to rational question." Because the people's government must respond to "great, complex, ever-unfolding exigencies," the courts must stay their hand, Thayer said, lest they take on the power of an unelected super-legislature.

Hand's debt to Thayer is reflected in Ms. Jordan's choice, to begin the book, of a letter from Hand to "My dear Mr. Thayer" a year after Hand graduated from Harvard. Hand later took up Thayer's theme in a 1911 letter to Frankfurter: The "stand-patters," he wrote, ". . . want to put the whole weight of government on nine elderly gentlemen at Washington." Hand's own belief was that the court "ought not to exercise [the power of judicial review] at all." Instead, as he wrote in a letter to Frankfurter 40 years later, a judge applying a statute should try to "imagine" what outcome the original legislators would have intended. (Hence Ms. Jordan's choice of book title.)

Early in his career, when his progressive political preferences enjoyed wide public support, Hand was a proud democrat, in the small-d sense: Whatever the flaws of the vox populi, legislatures were "the most capable engine of government." Over time his version of progressivism would lead him to shift his political allegiance from the Republican Party to FDR. Still, he continued to defend judicial restraint, not activism, out of a suspicion of the judiciary's elitist prejudices. He warned a correspondent that "judges drawn from one economic class feel free to make the law on their own 'hunches,' and those hunches have corresponded to the unconscious prejudices of their class."

Because Judge Hand had quickly risen to prominence in progressive circles, many hoped that he would rise all the way to the Supreme Court. But in 1930 President Herbert Hoover passed him by for an open seat. It was the closest Hand would come to the high court. Hand had played down his prospects: "The chances are so remote," he told Frankfurter, "as to be merely in the realm of mathematical possibilities." Even so, he was disappointed. In a letter to his wife, he confessed that the nomination "was in my thoughts all the time; it made a kind of coward at me."

It was perhaps the most touching moment of Hand's career; inexplicably, Ms. Jordan omits that letter from "Reason and Imagination." Those searching for it must turn to Gerald Gunther's superb 1994 biography, "Learned Hand: The Man and the Judge."

Ms. Jordan's omits other letters between Hand and his wife, Frances, including any that might shed light on Hand's reaction to his wife's long relationship with Louis Dow, a Dartmouth professor of French. (Dow and Frances were frequently in each other's company and even traveled to Europe together.) When Hand vaguely alludes to "F.H. or Louis Dow" in a letter, the reader is left clueless about Hand's pain. For excerpts from the letters between the Hands, or between Judge Hand and Dow, one must go again to Gunther's biography, which describes the "jealousy and inadequacy" that Dow likely stirred in Hand.

Ms. Jordan focuses instead on Hand's political and judicial philosophy, which took on a decidedly pessimistic color as the years passed. His hero, Justice Holmes, once wrote that "if my fellow citizens want to go to Hell I will help them. It's my job." In a similar tone, in a 1950 letter, Hand decries "the infantile beliefs of so many of our fellows." Still, he sticks with judicial restraint. As he once explained to Lippmann: "We are in for democracy, and while I am as shaken as you, I ask for any available substitutes."

Thus the letters in "Reason and Imagination" offer a narrative arc: Hand adopted a firm philosophy of judicial restraint early in life, as a means toward progressive political ends—and stuck with the philosophy, as the years passed, as an end in itself. Decades later, as FDR replaced the conservative Supreme Court of Hand's youth with a court stocked with liberals and progressives, Hand was unwilling to rethink his views, even if the court's decisions were likely to be more in line with his political outlook.

The next generation of constitutional scholars, such as Alexander Bickel and John Hart Ely, would construct theoretical defenses for the courts' liberal rulings on issues of race and social justice. Brown v. Board of Education was their victory but Hand's defeat. His career confirms Antonin Scalia's warning, years later (before Mr. Scalia himself joined the court), that, "unfortunately, a tactic employed for half a century tends to develop into a philosophy."

Once Hand's gospel of extreme judicial restraint fell out of favor, scholars and judges, such asWilliam Rehnquist, praised him in the neutral terms of "craftsmanship." In 1958, Hand himself had said in a lecture, referring to judges and lawyers: "It is as craftsmen that we get our satisfaction and our pay."

In 2009, Justice David Souter quoted those lines in his farewell address to a conference of federal judges. But to focus on the virtues of craftsmanship leaves one vulnerable to its vices. As Richard Sennett wrote in "The Craftsman" (2008): "The obsession with getting things perfectly right may deform the work itself." There can be no better example of this danger than Judge Hand. The 1958 lectures in which he offered his ode to "craftsmanship" were the same lectures in which he condemned Brown v. Board of Education.
Logged
C-Smiling Dog
Newbie
*
Posts: 30


« Reply #170 on: February 12, 2013, 09:29:37 PM »

Woof Marc,

Saw this post and was curious to the meaning of "special relationships"? Any feedback?

http://en.wikipedia.org/wiki/Warren_v._District_of_Columbia
Logged
Crafty_Dog
Administrator
Power User
*****
Posts: 29587


« Reply #171 on: February 12, 2013, 10:19:01 PM »

I've no comment on the particular meaning of "special relationship" here, but will say that the lack of duty to protect, as disconcerting as it can be, is pretty standard stuff-- a and a good point to keep in mind when considering our gun rights!  Our GM around here has a strong background in law enforcement law related matters. Perhaps he can chime in.
Logged
DougMacG
Power User
***
Posts: 5524


« Reply #172 on: February 12, 2013, 11:32:09 PM »

"The public-duty doctrine holds that the government and its officials owe a legal duty to the public at large but not to any individual citizen....two exceptions... the “danger creation exception” and the “special-relationship exception."  http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=display_arch&article_id=1172&issue_id=52007

"If a suspect is taken into custody by law enforcement, a duty to protect -be it at the scene, during transport, or at the jail-exists.7 The majority of courts require a person to be in physical custody of police before that person has a special relationship with police."..."One federal district court has held a special relationship between the state and a confidential informant existed, and thus there was a duty to protect."  http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=display_arch&article_id=341&issue_id=72004

Logged
G M
Power User
***
Posts: 11489


« Reply #173 on: February 14, 2013, 06:04:19 PM »

Doug pretty much nailed it. In addition, there is this:

CASTLE ROCK v. GONZALES
--------------------------------------------------------------------------------

Case Basics
Docket No.
04-278
Petitioner
Town of Castle Rock, Colorado
Respondent
Jessica Gonzales, Individually and as Next Best Friend of Her Deceased Minor Children, Rebecca Gonzales, Katheryn Gonzales, and Leslie Gonzales
Decided By
Rehnquist Court (1994-2005)
Opinion
545 U.S. ___ (2005)
Granted
Monday, November 1, 2004
Argued
Monday, March 21, 2005
Decided
Monday, June 27, 2005 
Advocates
John C. Eastman
(argued the cause for Petitioner)
John P. Elwood
(argued the cause for Petitioner)
Brian J. Reichel
(argued the cause for Respondents)
TagsDue Process Miscellaneous  Term: 2000-20092004
Facts of the Case
Jessica Gonzales requested a restraining order against her estranged husband. A state trial court issued the order, which prohibited the husband from seeing Gonzales or their three daughters except during pre-arranged visits. A month later, Gonzales's husband abducted the three children. Gonzales repeatedly urged the police to search for and arrest her husband, but the police told her to wait until later that evening and see if her husband brought the children back. During the night Gonzales's husband murdered all three children and then opened fire inside a police station, where police returned fire and killed him. Gonzales brought a complaint in federal District Court, alleging that the Castle Rock police had violated her rights under the Due Process Clause of the Constitution by willfully or negligently refusing to enforce her restraining order. The Due Process Clause states: "No state shall...deprive any person of life, liberty, or property, without due process of law..." The District Court dismissed the complaint, ruling that no principle of substantive or procedural due process allowed Gonzales to sue a local government for its failure to enforce a restraining order. On appeal, however, a panel of the Court of Appeals for the Tenth Circuit found that Gonzales had a legitimate procedural due process claim. A rehearing by the full appeals court agreed, ruling that Gonzales had a "protected property interest in the enforcement of the terms of her restraining order," which the police had violated.

Question
Can the holder of a restraining order bring a procedural due process claim against a local government for its failure to actively enforce the order and protect the holder from violence?

Argument
Castle Rock v. Gonzales - Oral Argument
Full Transcript Text  Download MP3
Castle Rock v. Gonzales - Opinion Announcement
Full Transcript Text  Download MP3
Conclusion
Decision: 7 votes for Castle Rock, 2 vote(s) against
Legal provision: Due Process
No. In a 7-2 decision, the Court ruled that Gonzales had no constitutionally- protected property interest in the enforcement of the restraining order, and therefore could not claim that the police had violated her right to due process. In order to have a "property interest" in a benefit as abstract as enforcement of a restraining order, the Court ruled, Gonzales would have needed a "legitimate claim of entitlement" to the benefit. The opinion by Justice Antonin Scalia found that state law did not entitle the holder of a restraining order to any specific mandatory action by the police. Instead, restraining orders only provide grounds for arresting the subject of the order. The specific action to be taken is up to the discretion of the police. The Court stated that "This is not the sort of 'entitlement' out of which a property interest is created." The Court concluded that since "Colorado has not created such an entitlement," Gonzales had no property interest and the Due Process Clause was therefore inapplicable. Justice John Paul Stevens, joined by Justice Ruth Bader Ginsburg, dissented.

And this:

http://www.nypost.com/p/news/local/brooklyn/to_serve_but_not_protect_Qr3ume5gEhMhtg8LvHgzAI?utm_campaign=OutbrainA&utm_source=OutbrainArticlepages&obref=obinsource

City says cops had no duty to protect subway hero who subdued killer
By KATHIANNE BONIELLO
Last Updated: 5:56 PM, February 1, 2013
Posted: 1:03 AM, January 27, 2013
He says he put his life on the line to stop a killer — and claims cops sat back and watched.

But city lawyers are arguing that the police had no legal duty to protect Joseph Lozito, the Long Island dad stabbed seven times trying to subdue madman Maksim Gelman — a courtroom maneuver the subway hero calls “disgraceful.”

A judge is currently deciding whether Lozito, who sued the city last year for failing to prevent the attack, will get his day in court.

The drug-fueled Gelman had fatally stabbed three people in Brooklyn and killed another with a car during a 28-hour rampage when he entered an uptown No. 3 train on Feb. 12, 2011.

 
Theodore ParisienneGOT HIM! Officer Terrance Howell escorts murder-spree maniac Maksim Gelman from Brooklyn’s 61st Precinct.Police officers Terrance Howell and Tamara Taylor were part of a massive NYPD manhunt. They were in the operator’s cab, watching the tracks between Penn Station and 42nd Street for any sign of the fugitive. Lozito was seated next to the cab.

In the official NYPD account and Howell’s own affidavit, Howell heroically tackled and subdued the killer. But Lozito tells a different story.

The 42-year-old mixed-martial-arts fan says he watched Gelman approach the cab window, barking: “Let me in!” Gelman even claimed to be a cop, but a dismissive Howell turned away, he says.

Gelman walked off. A straphanger recognizing Gelman tried to alert the cops, but was also rebuffed. A minute later, Gelman returned and set his sights on the 6-foot-2, 270-pound Lozito.

“You’re going to die,” Gelman announced — then stabbed him in the face.

Lozito leapt from his seat and lunged at the 23-year-old Gelman as the psycho sliced at him.

“Most of my wounds are in the back of my head,” Lozito said. “He got to the back of my head because my left shoulder [was] in his waist.”

In his account, Lozito pinned Gelman to the floor, disarming him. Howell then emerged from the booth, tapping Lozito’s shoulder: “You can get up now,” he said.

“By the time he got there, the dirty work was already done,” Lozito said.

Gelman was convicted in the spree — which left his girlfriend, her mother, his stepfather and a pedestrian dead, and five others injured.

Lozito says a grand-jury member later told him Howell admitted on the stand that he hid during the attack because he thought Gelman had a gun.

An angry Lozito decided to sue the city for negligence, arguing the cops should have recognized Gelman and prevented, or reacted more quickly to, the assault.

The city routinely settles such litigation but is playing hardball with Lozito, insisting his demand for unspecified money damages be tossed because the police had no “special duty” to protect him or any individual on the train that day.

“Under well-established law, the police are not liable for such incidents,” said city lawyer David Santoro. “That doesn't detract from the Police Department's public safety mission -- or the fact that New York is the safest big city in America."

Experts say it’s a long-standing legal precedent requiring police to put the public safety of all ahead of any one individual’s rights.

Lozito says his case is different.

“If the cop is on the train, and I get robbed by a stranger, of course, the cop can’t be clairvoyant,” Lozito told The Post. “But when they’re looking for Maksim Gelman, and Maksim Gelman bangs on the door and says, ‘Let me in, I’m a cop’ and all you say is: ‘No, you’re not?’ ”

1. Joseph Lozito enters the uptown No. 3 train, sitting behind the train operator. Officers Terrance Howell and Tamara Taylor enter the operator’s booth; a few minutes later, the train slowly pulls out of Penn Station.

2. Maksim Gelman walks up to the booth and says: “Let me in!” Howell allegedly dismisses him and Gelman walks away.

3. Minutes later, Gelman walks back up to the booth, looks at Lozito, says “You’re going to die,” and stabs him.

4. Lozito fights back, getting seven stab wounds during the 60-second struggle with Gelman, eventually pinning him and knocking the knife away.

5. Howell allegedly emerges from the booth, taps Lozito on the shoulder and says: “You can get up now.”

kboniello@nypost.com

Logged
bigdog
Power User
***
Posts: 2101


« Reply #174 on: February 21, 2013, 10:43:55 AM »

http://www.justice.gov/opa/pr/2013/January/13-crt-056.html

vs.

http://www.wwltv.com/news/eyewitness/brendanmccarthy/DOJ-blast-citys-attempt-to-void-NOPD-consent-decree--191486911.html
Logged
ccp
Power User
***
Posts: 3789


« Reply #175 on: May 05, 2013, 02:19:23 PM »

If my understanding is correct the present medical community thinking is surgeons who carry blood born transmissible diseases such as Hepatitis B or C or HIV should be allowed to practice their craft being that there is a bidirectional duty to protect themselves and their patients with proper precautions.   Sterile technique gloves etc.  In practice it has not been rare though it seems the exception for me to see patients getting HIV test  before surgery.  I am not sure who ordered the tests or why but I suspect it was the surgeon looking to protect him/herself.   Yet I have never heard of an infected surgeon disclosing to a prospective patient that he or she is infected.   One can argue the surgeon has the right to privacy and to not be discriminated against.  But I would err on the side that the patient has the right to know they are or might be at increased risk to contract a chronic infection by undergoing an invasive procedure from an infected surgeon.    Indeed, I frankly take the position that an infected person has no business performing procedures on patients.   Would I or you or anyone in their right mind want someone to do a bloody procedure such as opening your belly or your chest etc if I you knew the surgeon was HIV positive.  Gloves will not protect from an accidental scalpel cut.   On the other hand I see no reason why someone cannot be a doctor in a nonsurgical specialty.

http://news.yahoo.com/feds-hepatitis-b-no-barrier-health-practice-144109082.html
Logged
Crafty_Dog
Administrator
Power User
*****
Posts: 29587


« Reply #176 on: June 20, 2013, 10:04:26 PM »

http://gawker.com/this-is-how-you-respond-to-an-unjust-cease-and-desist-l-514155395
Logged
Crafty_Dog
Administrator
Power User
*****
Posts: 29587


« Reply #177 on: September 16, 2013, 08:06:58 AM »

http://www.washingtontimes.com/news/2013/sep/15/us-releases-illegals-who-are-sex-offenders/?page=all#pagebreak
Logged
Crafty_Dog
Administrator
Power User
*****
Posts: 29587


« Reply #178 on: December 10, 2013, 04:28:26 PM »



http://www.nytimes.com/2013/12/10/science/considering-the-humanity-of-nonhumans.html?nl=todaysheadlines&emc=edit_th_20131210
Logged
Crafty_Dog
Administrator
Power User
*****
Posts: 29587


« Reply #179 on: December 29, 2013, 03:04:48 PM »



http://www.washingtontimes.com/news/2013/dec/26/couple-faces-3500-fine-negative-online-review/
Logged
ccp
Power User
***
Posts: 3789


« Reply #180 on: January 03, 2014, 09:13:16 AM »

The answer to the cash squeeze is simple.  Single payer government controlled legal system.  That is the best and only real answer.  That way people who cannot afford attorneys can have access to legal rights including adequate competent representation not only if they are arrested but for preventative legal care.   Chuck Schumer stated no doctor should make more than $80K a year.  I propose that no lawyer should make more than 40K per year.  They have three years training beyond college.  Physicians go on to have 7 to 11 years training after college.  That is fair.   Why no out cry for this?  Everyone knows legal representation in the US is unfair.

***Federal courts continue warnings about budget and the Sixth Amendment

National Constitution Center
By Scott Bomboy 3 hours ago
 
As a new year starts, the Chief Justice of the United States and top officials in the federal court system continue to warn about budget cuts that will make it harder for people to have access to public defenders.

.roberts640Chief Justice John Roberts has repeated warnings he issued in 2012 about the lack of funding for the federal court system, which he helps to oversee. Those warnings came about three weeks after similar requests from two top officials at the Administrative Office of the U.S. Courts.

On December 5, 2013, Judges John D. Bates and Julia S. Gibbons wrote Congress about the dire need for more funds for a federal court system that was strained before mandated sequester cuts took effect after the 2013 budget battle in Congress.

“Sequestration cuts to the Defender Systems program threaten the ability of the Judiciary to provide court-appointed for persons accused of a federal crime,” said Gibbons and Bates, who said that federal defender programs were cut by 11 percent during the sequester period last year.

About 90 percent of people in federal criminal cases use court-appointed counsel.

The letter was issued just before a budget deal was reached in Congress to restore some funding to government agencies.

In the budget deal cut by Representative Paul Ryan and Senator Patty Murray, some money for the next two years will be coming back to discretionary programs run by federal agencies. But the amount of funds restored will be decided by appropriations committees in Congress in mid-January.

And that isn’t enough to satisfy Chief Justice Roberts, who spelled out his concerns in a 15-page report issued on New Year’s Eve.

Among the arguments made by the Chief Justice to Congress is the fact that most federal court spending is on programs mandated by law, and the federal justice system just doesn’t have many discretionary programs to cut. In fact, it will need to cut its budget by 3 percent to accommodate “must pay” programs- before funds are restored from the sequester.

“Those cuts would lead to the loss of an estimated additional 1,000 court staff. The first consequence would be greater delays in resolving civil and criminal cases,” Roberts said. “In the civil and bankruptcy venues, further consequences would include commercial uncertainty, lost opportunities, and unvindicated rights. In the criminal venues, those consequences pose a genuine threat to public safety.”

And the more basic threat is to the sanctity of the Sixth Amendment, Roberts said, if sequester cuts are restored.

“There are fewer public defenders available to vindicate the Constitution’s guarantee of counsel to indigent criminal defendants, which leads to postponed trials and delayed justice for the innocent and guilty alike,” he said.

The public defender system has greatly expanded in the past 50 years after the 1963 decision in Gideon v. Wainwright. The highly publicized case led the Supreme Court to conclude that the Constitution required state-provided legal counsel in criminal cases for defendants who are unable to afford to pay their own attorneys.

The Gideon decision touched on three amendments—the Sixth amendment, the 14th Amendment and the Fifth Amendment. But the Sixth Amendment was at the decision’s core.

The Court ruled that the Constitution’s Sixth Amendment gives defendants the right to counsel in criminal trials where the defendant is charged with a serious offense even if they cannot afford one themselves; it states that “in all criminal prosecutions, the accused shall enjoy the right to … have the Assistance of Counsel for his defense.”

Last fall, when the sequester cuts went into place, there was heavy criticism from legal circles of its effects on the federal public defender system.

In an op-ed piece in The Wall Street Journal, jointly signed by conservative Paul Cassell and liberal Nancy Gernter, the former federal trial judges lamented the drastic impact of sequestration on budgets for public defender offices.

“[D]ue to the combination of general budget austerity and sequestration, the federal public defender system — a model of effective indigent defense for the past 40 years — is being decimated. As former federal judges from opposite ends of the ideological spectrum, we both understand that these shortsighted cuts threaten not only to cripple the federal defender system, but to disrupt the entire federal judiciary—without producing the promised cost savings,” they said.

U.S. attorney general Eric Holder also submitted his own op-ed piece to the Washington Post on the same topic.

“Despite the promise of the court’s ruling in Gideon, however, the U.S. indigent defense systems — which provide representation to those who cannot afford it — are in financial crisis, plagued by crushing caseloads and insufficient resources,” said Holder.

“Five decades after the Supreme Court affirmed that adequate legal representation is a basic right, sequestration is undermining our ability to realize this fundamental promise. The moral and societal costs of inadequate representation are too great to measure,” he added.

What happens next in the budget process is uncertain, but in an appendix to his annual report, Chief Justice Roberts said that while civil case filings at U.S. district courts were up 2 percent in 2013, there were declines in case loads in other courts.

For example, filings for criminal cases fell by three percent to 91,266. But that doesn’t necessarily represent the case load for people seeking defense help in federal cases.

Chief Justice Roberts is hoping for $1.04 billion in funding for 210,000 defense representations next year, with part of that money going to pay bills that were delayed in last year’s sequester.

In the current continuing resolution (CR) that is funding the federal government, about $26 million was restored from the sequester to pay for some vouchers related to the public defender program.

The Defender Services Office, which trains attorneys who work as public defenders in federal cases, has been blunt in its opinion about the budget cuts.

“There is no indication of what the funding situation will be beyond the expiration of the CR in January. Without a full-year appropriation that is greater than the CR level, [federal defender offices] will continue to see a budget shortfall,” the division said on its website.

In July 2013, Judges Bates and Gibbons told the Senate that reduced funding for public defenders represented a broader problem.

“Our nation recently celebrated the 50th anniversary of the 1963 landmark Supreme Court decision in Gideon v. Wainwright, which guaranteed an individual the right to court-appointed counsel,” they said.  “Funding cuts are threatening that very right, a right that has been a bedrock principle of our criminal justice system for half a century.”***

Logged
Body-by-Guinness
Power User
***
Posts: 2787


« Reply #181 on: January 25, 2014, 08:32:56 PM »

An interesting exploration of the roots of false confessions that reinforces my belief that, post incident, clamming up and demanding a lawyer are the legal route:

http://www.thejuryexpert.com/2012/11/only-the-guilty-would-confess-to-crimes%E2%80%A8-understanding-the-mystery-of-false-confessions/
Logged
G M
Power User
***
Posts: 11489


« Reply #182 on: January 25, 2014, 09:07:43 PM »

An interesting exploration of the roots of false confessions that reinforces my belief that, post incident, clamming up and demanding a lawyer are the legal route:

http://www.thejuryexpert.com/2012/11/only-the-guilty-would-confess-to-crimes%E2%80%A8-understanding-the-mystery-of-false-confessions/

Depends if you are actually guilty or not.
Logged
Crafty_Dog
Administrator
Power User
*****
Posts: 29587


« Reply #183 on: February 13, 2014, 11:39:00 PM »

PS: The "Professor Dougherty" referenced is a good friend from law school.

http://www.project-disco.org/intellectual-property/021114-the-future-of-fair-use-after-google-books/?fb_action_ids=10152748956218504&fb_action_types=og.likes&fb_ref=.Uv2BGdSvIAw.like&fb_source=other_multiline&action_object_map=[210989929103616]&action_type_map=[%22og.likes%22]&action_ref_map=[%22.Uv2BGdSvIAw.like%22]

The Future of Fair Use After Google Books
by Jonathan Band on February 11, 2014


This weekend I participated in a panel about Judge Chin’s decision in the Google Books case at the Copyright Society’s mid-winter meeting. My debating partner was Jon Baumgarten, former General Counsel of the Copyright Office and partner at Proskauer Rose, where he represented publishers, among other rights holders. Jay Dougherty, a professor at Loyola Law School, acted as the moderator/referee. The discussion revealed profound disagreement on whether fair use jurisprudence is headed in the right direction.

After Professor Dougherty provided a quick overview of the case (eight years in five minutes!), I made four arguments why Judge Chin correctly concluded that fair use permitted Google’s scanning of 20 million books into its search index.

First, in support of his finding that Google Books served the public interest, Judge Chin cited five times an amicus brief I helped write for the Library Copyright Alliance.

Second, the decision is consistent with “transformative use” decisions in the Second Circuit (Bill Graham Archives v. Dorling Kindersley, Authors Guild v. HathiTrust) as well as other circuits (A.V. v. iParadigms LLC, Kelly v. Arriba Soft Corp., Perfect 10 v. Amazon.com).

Third, to the extent that Jon Baumgarten might disagree with the transformative use jurisprudence generally, the Google Books decision fell within a subset of those decisions that involved digital technology. In these cases, although there was a large amount of copying in toto, that copying occurred “behind the curtain” in the course of creating a new product or service, and the end user generally could not see entire works. Thus, the use did not supersede the market for the works. Here, for example, Google displayed only three short “snippets” in response to each search query.

Fourth, even if one had doubts about these technological fair use cases, the Google Books case presented a unique set of circumstances that distinguished it from most other  cases. In particular, because the Authors Guild did not seek preliminary relief, and did not insist that Google stop scanning during the lengthy negotiations and legal proceedings concerning the settlement, Judge Chin was confronted with a highly useful database containing 20 million books. Fashioning an appropriate remedy would be exceedingly difficult. Enjoining the use of the database until Congress develops a mass digitization exception, as the Authors Guild proposed in the HathiTrust case, was a completely unrealistic remedy. Thus, finding fair use may have been the best way forward given the facts on the ground.

Jon Baumgarten then explained why he thought Judge Chin decided the case incorrectly. Jon agreed with me that there was precedent supporting the decision, but argued that Judge Chin ignored other, more compelling, precedent. Jon’s basic point was that Judge Chin compounded the errors that are the heart of many of the transformative use cases: rather than identify whether the expression is transformed, as Judge Leval originally intended, these cases simply ask if the expression is being used for a new, socially beneficial purpose. Jon is concerned that it will be too easy for clever lawyers to highlight a socially beneficial purpose, as my amicus brief did in this case. The emphasis on socially beneficial purpose changes the focus from the infringer’s actions to uses made by third parties. It limits the ability of rights-holders to receive financial benefits from the use of their works. Analog works will become fodder for technology companies.

Jon added that although fair use is extremely important to the functioning of the copyright system, it should involve incidental activity, and not be conducted at the enterprise level. Under Judge Chin’s analysis, Google is “too big to infringe.”

Finally, Jon noted that Google’s “Partner Program,” under which it entered into licensing arrangements with publishers, indicated that there was a functioning licensing market, tilting the fourth factor against Google.

In my limited rebuttal time, I responded that while Google reached licensing agreements with some publishers with respect to some books, the copyright ownership of many of the books scanned by Google was unclear. The copyright might belong to the publisher, the author, or the author’s heirs. The transaction costs involved in determining the ownership of these books’ copyrights made licensing infeasible.

I added that reliance on fair use in this case, as well as in many of the other transformative use cases, was a function of the conflicts resulting from the interaction of a changing copyright system and evolving digital technology. On the one hand, the lengthening of copyright term and the abandonment of formalities as a condition for protection means that more works are covered by copyright than ever before – including many of the works at issue in this case. At the same time, the nature of digital technology means that users are making dramatically more copies in the course of their daily activities – turning on their computer, viewing websites with browsers, responding to and forwarding emails. During the course of the day, a user may make hundreds, if not thousands, of copies. Fair use is the theory that permits these activities.

Professor Dougherty asked the first question: was the Google Books decision consistent with the Berne three-step test? Jon Baumgarten said that it may well not be; how could the copying of millions of books be a “special case?” I replied that the three-step test applies to statutory exceptions a national legislature may adopt, so the issue would be whether fair use is compliant with the three-step test, not whether this application of fair use is three-step compliant. I noted that ever since joining the Berne Convention, the U.S. government has taken the position that fair use is three-step compliant, and as the world’s only superpower, our position on this issue is dispositive.  Further, the second and third steps (“do not conflict with a normal exploitation of the work and do no unreasonably prejudice the legitimate interests of the author”) sounded like the first and fourth fair use factors (“the purpose and character of the use,” “the effect of the use upon the potential market for or value of the copyrighted work”).

A member of the audience asked whether the Google Books and HathiTrust decisions rendered the updating of section 108, as recommended by the Copyright Office, superfluous. I responded that while the exceptions in section 108 were extremely important to the operation of libraries, they probably were a bit out of date, as was the rest of the Copyright Act. Fortunately, fair use can provide some flexibility to specific exception. I mentioned my article published in the Journal of the Copyright Society where I argued that in situations where a defendant engaged in the sort of activity permitted by a specific exception, but ultimately did not qualify for a narrow technical reason, the court should consider the defendant’s substantial compliance with the exception when applying the first fair use factor – the purpose and character of the use. I added that in a perfect world, Congress should update section 108, and the rest of the Copyright Act. But we live in an imperfect world, and given the availability of fair use, it made no sense for libraries and publishers to spend five years negotiating an update to section 108 that would be obsolete when completed.

Jon Baumgarten opined that my Copyright Society article was very scholarly, and dead wrong.

Another member of the audience made an impassioned statement that by pushing the fair use envelope, Google was in effect deciding unilaterally what the copyright law was, thereby forcing copyright owners to abandon their rights. Some audience members applauded at the conclusion of this statement.

I replied that it wasn’t only Google that was relying on fair use. Some recent prevailing fair use defendants include Bloomberg, Thomson Reuters, and Reed Elsevier. I pointed out that Thomson Reuters and Reed Elsevier without authorization copied over a million briefs and other pleadings, which they incorporated into a commercial database product. When sued by a law firm, these publishers successfully argued that they had engaged in a transformative use.

Moreover, in many cases, plaintiffs are able to convince courts to reject assertions of transformative use. In the Salinger case, the Second Circuit found that a sequel to Catcher in the Rye was an infringing derivative work. Likewise, a district court found that a Harry Potter lexicon copied more expression than necessary to accomplish its purpose. In other words, courts are perfectly capable of distinguishing legitimate transformative uses from infringing derivative ones. They are readily equipped to find uses that will advance the public interest without diminishing an author’s incentive to create.

After a panel of this sort, I always think of arguments I should have made, or more convincing ways to frame an argument I did make. A point I did not make is one I wrote about soon after the decision. I argued that for at least some of the Authors Guild members, this case has always been about the principle that no one should use their works without their permission. While they may agree with fair use in the abstract, they oppose it as applied to their works. The fact that the use is socially beneficial and does not harm them economically is irrelevant. They believe that creators should have complete control over copies. The positions Jon Baumgarten expressed this past weekend are consistent with this perspective.

This belief in complete control is based more on the Continental “author’s rights” (droit d’auteur) tradition than on the Anglo-American utilitarian tradition. In the author’s rights approach, copyright springs not from statutes but from natural law. By contrast, in the Anglo-American system, copyright is not a response to natural law, but rather is a matter of legislative choice directed at incentivizing the creation of works for the benefit of society. The Anglo-American utilitarian approach in theory provides only as much protection as is necessary to encourage creative activity, while the author’s rights approach provides more robust protections of both economics and moral rights such as the rights of integrity and attribution.

However, in response to lobbying by right-holders, Congress has enacted certain features of author’s rights systems – for example, the ever-increasing copyright term, referenced above. The first U.S. copyright act provided a term of 14 years, renewable for another 14 years, for a maximum total of 28 years. Now, the copyright term matches the European Union’s term of life of the author plus 70 years.

The complete control over copyrighted works sought by the Authors Guild in this case is inconsistent with the public interest purpose of our copyright system. Fortunately, Judge Chin recognized that the objective of copyright is not to enrich rights-holders, but “to advance the progress of the arts and sciences.”

Jonathan Band is a DC-based attorney whose clients include Internet companies, providers of information technology, universities, library associations, and CCIA.  He previously guest-posted on DisCo about the impact of software infringement on manufacturing competitiveness.

Tagged as: Copyright, Fair Use, Google, Intellectual Property
Logged
ccp
Power User
***
Posts: 3789


« Reply #184 on: March 06, 2014, 08:13:10 AM »

Interesting situation.  I didn't know it is illegal to allow someone "visibly" drunk to play at a casino in Nevada.  I thought that was one of the casino's goals.  
Gambling while under the influence?   How the heck does one sort this out.  Maybe we need a breathalyzer test for those who drink and gamble.   Then one gets into the concept of "impairment" as well.   What a mess sorting this out:

****Gambler sues, says he lost $500,000 playing drunk

Associated Press
By HANNAH DREIER 13 hours ago
 
LAS VEGAS (AP) — A businessman who lost $500,000 on table games at a Las Vegas casino on Super Bowl weekend is arguing that he shouldn't have to pay because he was blackout drunk.

Southern California gambler Mark Johnston, 52, is suing the Downtown Grand for loaning him money and serving him drinks when he was visibly intoxicated.

Nevada law bars casinos from allowing obviously drunk patrons to gamble and from serving them comped drinks.

Johnston's attorney, Sean Lyttle, says the Grand, which opened last November in the old part of Las Vegas, intends to pursue Johnston for trying to shirk his gambling debts. Johnston put a stop-payment order on the markers, or casino credits, the Grand issued, and is also seeking damages from the Grand for sullying his name.

Johnston says he was thoroughly drunk during the hours he spent playing pai gow and blackjack at the Grand. His legal team plans to rely on eyewitness testimony and surveillance video to prove that he was visibly intoxicated.

Johnston lives in Ventura and made his fortune in car dealership and real estate ventures.

The Grand issued a statement saying it does not comment on pending litigation.

The state Gaming Control Board is investigating.

"It's certainly an extraordinary case. This is not a story that I've ever heard before, where someone was blackout intoxicated where they couldn't read their cards, and yet a casino continued to serve them drinks and issue them more markers," Lyttle said. "It's a very heavy-handed and unusual approach that we haven't seen in this town in a long time."

Johnston arrived in Las Vegas with the woman he was dating on the Thursday before the Super Bowl. He drank in the limousine from the Las Vegas airport to the Grand, drank more during dinner with friends, and then says he blacked out.

The suit alleges that the Grand comped him dozens of drinks while he gambled away hundreds of thousands of dollars, finally sleeping off his drunkenness on that Saturday, which was Feb, 1. Johnston says he didn't learn how much he had lost until the next day.

___

Hannah Dreier can be reached at http://twitter.com/hannahdreier
Logged
G M
Power User
***
Posts: 11489


« Reply #185 on: March 06, 2014, 09:00:07 AM »

He shouldn't get one thin dime. Should have to cover all court costs too.
Logged
ccp
Power User
***
Posts: 3789


« Reply #186 on: March 06, 2014, 09:08:07 AM »

***Nevada law bars casinos from allowing obviously drunk patrons to gamble and from serving them comped drinks.***

I have little sympathy for this guy yet the casino employees seemed to have no problem doing what is according to this illegal.

Or so he claims.
Logged
Pages: 1 2 3 [4] Print 
« previous next »
Jump to:  

Powered by MySQL Powered by PHP Powered by SMF 1.1.17 | SMF © 2011, Simple Machines Valid XHTML 1.0! Valid CSS!