l33tminion: (Rainbow)
Big news from the Supreme Court this week.

I guess a Scalia/Thomas/Alito dissent is as close to unanimous as you can get on any Supreme Court decision on legislation that's controversial along liberal/conservative lines.

Scalia is big on the Fourteenth Amendment working how those voting on it would have intended, but not so much for the Affordable Care Act.

Scalia's dissent in Obergefell, is pretty entertaining and completely histrionic. He he decries the decision as a "judicial Putsch" by a bunch of east- and west-coast lawyers, and all but exhorts the states to disregard the ruling. (Alito writes something similar, but more calmly. Roberts just wishes the Supreme Court was more conservative. Thomas doesn't think the Fourteenth Amendment protects a class of citizens from being excluded from receiving government benefits at all, only from being restrained or imprisoned.)
l33tminion: (L33t)
Things that have been going on in my life lately:
  • Far too many amazing holiday parties
  • Shopping for gifts
  • Snow, lots of snow
  • Reading group at work, making our way through AntiPatterns
  • A few large refactoring projects at work
But work is done for the moment. Julie and I left town yesterday to visit her folks for Christmas. We'll be back in Boston on the 26th, and I'll be back to work in the new year.

Unrelated note: I hear that same-sex marriage is legal in Utah now? Well, that's unexpected! But I was amused to see the details of the ruling. Back when I was discussing Windsor, I noted that Scalia basically wrote the liberals' opinion for them, and suggested elsewhere that it would be amusing to write that future opinion as just "what Scalia said". I was amused to see that Judge Shelby, the District Court judge who wrote the opinion in the Utah marriage opinion, did just that.
l33tminion: (Pirate Hat)
A few stories of interest:

The NYC AG has demanded a bunch of user data from Airbnb about those renting out units through the site, presumably as a prelude to some sort of crackdown. Seems like a disaster for Airbnb. They're fighting it as an overly broad request, but also publicly acting as if they assume it's just a crackdown on particularly bad actors, having nothing to do with the fact that vast swaths of their ordinary business is flagrantly illegal (not because it harms anyone, just due to the sort of industry regulation that lightly restrains with one hand and grants a permanent monopoly with the other).

South Dakota has been reeling from a serious snowstorm early and sudden enough to wipe out thousands of cattle. What a crazy disaster.

Federal authorities shut down the anonymous online black market known as Silk Road, arresting its founder for conspiracy to commit money laundering, narcotics trafficking, and conspiracy to commit murder. The story is fascinating from a security and law-enforcement perspective. I wrote about it a bit on ComplexMeme.
l33tminion: (Exile)
I said before I left for camp that I'd discuss current events, but didn't do so on my return. So I'll briefly discuss some of that now.

The Voting Rights Act Case (Shelby v. Holder) - The Supreme Court declared the formula for requiring certain jurisdictions to get federal clearance for changes in their election laws unconstitutional. Fortunately, this leaves room for Congress to reestablish the law on firm Constitutional footing by coming up with a new formula based on recent data. Unfortunately, there is no way the current Congress will do that.

The Prop 8 Case (Hollingsworth v. Perry) - The California gay marriage switch has been flipped back to on again after the Supreme Court denied the appeal on standing, ruling that proponents of a state ballot measure don't get to appeal a challenge to the constitutionality of that measure just because the state government refuses to do so. I wasn't surprised. The opinions are pretty interesting, though. Plus it was a very odd split on the ruling, with Sotomayor joining Kennedy, Thomas, and Alito on the dissent, Scalia joining Roberts, Ginsberg, Breyer, and Kagan on the majority.

The DOMA Case (US v. Winsor) - The Supreme Court struck down the part of DOMA that says the federal government doesn't respect same-sex marriages on equal rights grounds. The other part of DOMA (that allows state governments to not respect other state's same-sex marriages) was not at issue. There were also weird issues of jurisdiction on this case, given that both sides were arguing that the ruling should be upheld. The US government argued that they had standing to appeal the case based on the taxes they'd have to refund to Edith Winsor if DOMA was upheld, even though they didn't want DOMA to be upheld. Jurisprudence is supposed to be based on adversarial cases, the government is arguing in this case that the adversarial presentation of the issues is ensured entirely by amicus briefs. I can see why the Obama administration wouldn't want DOMA to apply to only part of the country, and wouldn't want to wait for all the District Courts to fall in line or for a split ruling to force the Supreme Court to hear the issue, but it's still pretty weird. Scalia's dissent is probably the most interesting part of the opinions here, a passionate and grumpy rant against "judicial activism" (in the most technically precise sense of the phrase):
[...] declaring the compatibility of state or federal laws with the Constitution is not only not the "primary role" of this Court, it is not a separate, free standing role at all. We perform that role incidentally—by accident, as it were—when that is necessary to resolve the dispute before us. Then, and only then, does it become "'the province and duty of the judicial department to say what the law is.'" That is why, in 1793, we politely declined the Washington Administration's request to "say what the law is" on a particular treaty matter that was not the subject of a concrete legal controversy. 3 Correspondence and Public Papers of John Jay 486–489 (H. Johnston ed. 1893). And that is why, as our opinions have said, some questions of law will never be presented to this Court, because there will never be anyone with standing to bring a lawsuit.


Windsor's injury was cured by the judgment in her favor. And while, in ordinary circumstances, the United States is injured by a directive to pay a tax refund, this suit is far from ordinary. Whatever injury the United States has suffered will surely not be redressed by the action that it, as a litigant, asks us to take. The final sentence of the Solicitor General's brief on the merits reads: "For the foregoing reasons, the judgment of the court of appeals should be affirmed." Brief for United States (merits) 54 (emphasis added [by Scalia]). That will not cure the Government’s injury, but carve it into stone. One could spend many fruitless afternoons ransacking our library for any other petitioner's brief seeking an affirmance of the judgment against it.
(Would be an interesting exercise for law students to actually attempt this "scavenger hunt". Did Scalia do so for this case?)

Scalia also helpfully writes the argument against the other part of DOMA for the liberal part of the court in the tradition of grumpy-but-perspicacious conservative dissents (e.g. as in Griswald, Lawrence). Scalia is angry in advance that that other part of DOMA will also be overturned in time, and there's nothing he can do about it.

George Zimmerman's Murder Trial - The case is and remains a tragedy. I wouldn't have been happy to see the verdict go differently, given the evidence. I don't want juries convicting based on their personal belief that the defendant is a bad person. In this case, the law said to convict Zimmerman only if it was clear beyond a reasonable doubt that he didn't act in self-defense. But who knows what happened? There were only two witnesses to the start of the altercation, and one of them is dead. Physical evidence and witness testimony were compatible with scenarios where Martin got into a fistfight with Zimmerman under conditions that fall far short of the legal standard for provocation and with scenarios where Zimmerman intentionally and maliciously provoked a fight. I agree with this analysis.

Of course, protections for people who use lethal force in self-defense make it easier to get away with murder. And the whole scenario is steeped in racism, from Zimmerman's determination that Martin was a suspicious character to Martin's reaction to the "creepy-ass cracker" following him. And Martin surely didn't get any judicial due process. One could snarkily suggest that if you're frightened in Florida, you'd better run away or pull a gun and escalate to lethal force immediately. When everyone's frightened and fear excuses everything, half-measures will only get you killed. But that would be taking things in the wrong direction.
l33tminion: (QED)
Sure has been a while since I did one of these, but here are a few recent tidbits.

Teach A Kid to Argue: On why teaching kids good argument skills is a better idea than you might think.

The Upside of Ugly: On plastic surgery and technological solutions to social problems.

Jay-Z’s "99 Problems," Verse 2: A Close Reading With Fourth Amendment Guidance for Cops and Perps: Musical "life lessons for cops and robbers".

The Problem with Witness Testimony: One thing people should keep in mind, especially if they ever serve on a jury in a criminal trial.

The Toothbrush That Saved the ISS: Low-tech solutions in a high-tech setting.

Six Thoughts on the Case of the Breast Feeding Professor: The discussion prompted by this story is way more interesting than the story itself. Also, this.

Why Greece's Neo-Nazis Are So Popular: Not so different from other historical occurences.

Life Spans Shrink for Least-Educated Whites in the U.S.: Dimitri Orlov saw this coming.

The Spiritual Crisis of Zionism: A fascinating essay in response to Beinart's The Crisis of Zionism.
l33tminion: (Neobama)
Annotated ruling here. The law was upheld (with minor tweaks to the bit about Medicaid, the government can't cut off funds to get states to go along with the Medicaid expansion).

Four of the nine Supreme Court Justices (Ginsberg, Sotomayor, Breyer, and Kagan) think that the government could even force you to buy health insurance and arrest, fine, or jail you if you don't.

But those four plus Chief Justice Roberts think that the government can levy an additional tax on people who don't buy health insurance, so the ACA stands. (More on that here and here.)

The Anti-Injuction Act doesn't prevent the suit because legislation about how "taxes" act has to do with what congress calls a "tax", but judicial review depends on what's a de facto tax. (Including for enumerated powers, by that ruling. SCOTUS could have struck the law and said, "Try passing it with the word 'tax' actually in there," but they didn't.)

It seems that Roberts changed his vote after the initial conference?

The remaining Justices (Scalia, Kennedy, Thomas, Alito) disagree with the commerce clause argument (with Thomas writing an additional opinion that he even disagrees with the standard the court is using to decide commerce clause arguments, set in US v. Lopez; he feels that allowing Congress to regulate activity that "substantially affects" interstate commerce is way too broad), and think that the "it's actually a tax" argument is flim-flam. Scalia notes that there's precedent for the court viewing an excessive tax as a de facto penalty, but not for viewing a slight fine as a de facto tax (even if it's collected by the IRS, some other penalties are as well).

(But a law with the same effect that used the word "tax" would be constitutional under Congress's tax power, if the exceptions were stated as exceptions to the "tax" instead of exemptions to the "mandate", and the bill originated in the House of Representatives and followed the rest of Congressional procedure for tax laws? Scalia thinks "maybe" but is furious that question received approximately no consideration at all.)

Overall, I think it's better that the act stands, and I'm fine with the liberal justice's arguments on commerce clause grounds. But Robert's arguments that the "penalty" for the "mandate" is in fact a tax are really flimsy, Scalia demolishes him on those grounds. I think that Roberts was wrong to switch his vote on that ground. If he succumbed to outside political pressure, that's despicable. And come on, if he was really bowing to the realpolitik, shouldn't he have shifted his position on the commerce clause?

ETA: On further consideration, I do recognize that Roberts is taking a rather clever position here. He's holding back from a far more significant striking down of legislation than the courts have done in decades, while still admitting some limit to commerce clause powers, and he's giving the administration a nearly ideal outcome while still implicitly criticizing them for sneaking in a tax increase.
l33tminion: (Bookhead (Nagi))
A few interesting things to share:

A post on why marriage bans are sex discrimination and thus subject to intermediate scrutiny (must further an important government interest in a way that is substantially related to that interest). The argument is logically rock solid. If two people are in court and changing the gender of one of those people changes the decision, the law that effects that change discriminates based on gender and must meet the standards of intermediate scrutiny, period (regardless of whether the law disadvantages one gender or another, regardless of whether the effect of the discrimination is somehow symmetrical or balanced). On the other hand, that argument will be ignored because it seems to be a technicality, the real effect of such laws is to discriminate between homosexuals and heterosexuals, not men and women.

A post on what counts as rational basis in the context of such laws. The big question, does rebuking "activist judges" count as a rational basis? Commenter Joe hits the important point in his response:
The means of "rebuking" matters. Justice Stevens in Carey v. Population Services:

Although the State may properly perform a teaching function, it seems to me that an attempt to persuade by inflicting harm on the listener is an unacceptable means of conveying a message that is otherwise legitimate.
(If rebuking the judiciary is a rational basis (as pointed out by another commenter), the test is pretty meaningless, since it now means only that a discriminatory law has to be passed twice.)

A very interesting op-ed on the case in the context of Lawrence v. Texas, arguing that Prop 8 and the "homosexual conduct law" overturned in Lawrence fail the rational basis test similarly, in the context of a transformed legal order (in Texas, sweeping reform of sexual conduct laws that struck many restrictions from the books the very same year the law overturned in Lawrence was passed; in California, a transformed system of family law that grants homosexuals the full system of marriage rights and obligations sans the word "marriage"). The rational basis in question is not for denying gays marriage, but why just gays, why just "marriage"?

Finally, an interesting post on Kennedy's Ratchet (referring to Justice Kennedy's opinion in Roemer cited in the recent ruling). The author of the post speculates that SCOTUS could uphold the very narrow version of the ruling from the appeal, where states would not be forced to grant marriage rights to homosexuals, but would not be able to pass laws that take (just) those rights away once granted.
l33tminion: (Rainbow)
Very interesting!

The 9th District Court of Appeals has issued a 2-1 panel ruling affirming the lower-court ruling that overturned CA's Prop 8. The full ruling is quite long, I haven't been able to get into it yet, but here are the key points from the summaries I've read:

1. The stay is still in effect, pending deadlines for filing an appeal, so nothing changes for those seeking to get married in CA. The Prop 8 Proponents will probably ask for a longer stay as they continue the appeal process (if the Circuit Court of Appeals refuses as stay, they could ask for a stay from SCOTUS).

2. The next step in appeals is to ask for the entire set of 9th Circuit Court Judges rule on the case en banc.

3. The ruling seems to be on rational basis instead of strict scrutiny grounds, so doesn't require argument about whether laws regarding sexual orientation require stricter review.

4. It's a narrow ruling, in that it specifically looks at the issue in the context of CA, which has marriage-minus-"marriage" civil unions (both before and after Prop 8). A lot of the arguments that Prop 8 serves a legitimate government interest refer to interests that are not in fact served merely by removing the term "marriage". The ruling concludes: "Proposition 8 serves no purpose and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples." It is an attempt at "separate but equal" which cannot be constitutional.

If SCOTUS ever ends up hearing this case, I'd hope they wouldn't be so restrained in scope and not rule against "separate but equal" in a way that leaves open the question of whether states can simply ditch the "but equal" part on this particular issue (leading to a scramble to repeal long-established compromises on civil partnerships / civil unions). But making a narrow ruling increases the probability that SCOTUS will just decline to review the case, letting it stand for now (until other circuit courts have a chance to rule on it, anyways).
l33tminion: (Default)
The Ninth Circuit Court of Appeals stayed the decision overturning Prop 8 until the appeal is complete. Not sure what their reasoning on that is, the order does not say. It merely lays out a relatively fast schedule for the trial (opening brief by September 17, answering brief by October 18, reply brief by November 1). Oral arguments are evidently scheduled for December 6, decision some time after that. The order does, however, ask the proponents to address Judge Walker's arguments about standing.

Also worth saying something about the controversy over the "Ground Zero Mosque" (a proposed Islamic Cultural Center some blocks away from the former WTC site). Jon Stewart's take is brilliant, especially his take-down of Obama's back-tracking and Glenn Beck's outright hypocrisy. A lot of the comparisons right-wing politicians are making on the issues are blatantly ignorant. Adding additional irony, any attempt by NYC to block the construction with last-minute zoning changes will probably land them in hot water because of a law passed in 2000 (with bipartisan support). (Also, really ADL? A hair-splitting defense of irrational religious discrimination? Ugh.)
l33tminion: (Bookhead (Nagi))
Bit late on this one, but since I mentioned Judge Walker's decision before, I should mention that he refused to stay his ruling overturning Prop 8. However, he did extend the temporary stay to Wednesday so that the court of appeals can have their chance to issue a stay before the ruling goes into affect. A few interesting things about that. From the judgment:

In deciding whether a stay is appropriate, the court looks to four factors:
(1) whether proponents have made a strong showing that they are likely to succeed on the merits;
(2) whether proponents will be irreparably injured absent a stay;
(3) whether the stay will substantially injure other interested parties; and
(4) whether the stay is in the public interest.
[Walker goes on to note the first two are most important, according to precedent]

For the first point, Walker points out that the defendant-interveners might not have standing to appeal the case at all, given that the State of California has declined to appeal. To have standing to appeal in lieu of the original defendants, they'll have to argue that they've suffered a "concrete and particularized injury that is actual or imminent". Walker first notes that the injunction is not against the proponents of the law, it doesn't require them to do anything. The enforcement of marriage law is solely within the domain of the state government (that Walker cites Lockyer v. City & County of San Francisco for that point is icing on the rhetorical cake). Second, Walker notes that the Plaintiff's didn't argue that they are harmed by the injunction in their motion to stay (will be interesting to see what argument they make along those lines in the actual appeal). Third, Walker reiterates that he views the case as clear-cut.

(Filing the motion to stay the decision before the decision was made was probably a mistake on the part of the proponents. Not anticipating the argument about standing was definitely a mistake. Maybe they didn't expect Schwarzenegger to decline to appeal... though that shouldn't have been surprising given that the state didn't want to defend themselves in this case in the first place.)

For the second point, Walker's response is hilarious:

Proponents also point to harm resulting from “a cloud of uncertainty” surrounding the validity of marriages performed after judgment is entered but before proponents’ appeal is resolved. Proponents have not, however, alleged that any of them seek to wed a same-sex spouse. [emphasis mine]

For the third point, Walker notes that not staying the decision is a harm to those whose rights are violated by Prop 8. And for the fourth point, he mostly notes Schwarzenegger's opinion that a stay is not in the public interest.

Judge Walker's role in this particular case is most likely concluded. Will be interesting to see what happens when the appeals court takes a crack at it. Presumably they'll at least deal with the inevitable argument that they should stay the judgment before Wednesday.
l33tminion: (Rainbow)
The amendment to the California constitution created by Proposition 8 was struck down today. Here are the key points of the ruling:
  • Sexual orientation is a suspect class, requiring strict scrutiny and a compelling state interest for discriminatory laws. Prop 8 is unconstitutional under that standard.
  • Even under the lesser "rational basis" standard, Prop 8 fails to be constitutional, since it's only significant purpose is to deny homosexuals rights because they're homosexuals.
  • And even if that test wasn't relevant, Prop 8 would still be unconstitutional under the Due Process clause by the same arguments used in Loving v. Virginia.
  • A temporary stay of the decision was granted while the judge decides whether to grant a stay of the decision until appeals are complete. Parties in the case have to file their motions for that by Friday. If Judge Walker does not issue a stay himself, the appeals court could still stay the decision pending their ruling.
  • The findings of law above could be overturned on appeal, but the appeals court is supposed to respect the findings of fact in the original trial, which are not exactly favorable to the pro-Prop-8 faction.
Full ruling is here. This isn't over yet, though. It's likely a stay will be issued and that the appeal will be appealed to the US Supreme Court, whichever way it goes.
l33tminion: (Default)
Here's an interesting bit of news: A federal judge issued a preliminary injunction stopping the law defunding ACORN. The judge evidently believes that ACORN is reasonably likely to win the argument that the law in question is an unconstitutional bill of attainder.

(The proximate cause of the law's passage was a seeming scandal in which ACORN was videotaped allegedly giving tax advice to a pimp and prostitute. The pimp in question was right-wing agent provocateur James O'Keefe, it was later revealed that tape in question was heavily and misleadingly edited. Evidently, O'Keefe has a history of that sort of thing (HT to [livejournal.com profile] fantwurm for that link). O'Keefe later got himself arrested for being involved in a scheme to wiretap a congressional office.)
l33tminion: (Default)
Scott Roeder was convicted of first-degree murder today. The deliberation was brief, as one might expect in a case where the defense involved confessing to premeditated murder. Sentencing hasn't happened yet, but Roeder will get a life sentence, with at least 25 years before he can be paroled.

Interestingly, while the judge admitted argument for a lesser voluntary manslaughter charge (as I discussed earlier), the jury was instructed to only consider a charge of first degree murder. I wonder if not instructing on the lesser charge will be the bases for an attempted appeal. One Kansas case I found asserts: "A trial court has the affirmative duty to instruct the jury on all lesser included offenses established by the evidence. Instructions on lesser included offenses must be given even though the evidence is weak and inconclusive and consists solely of the testimony of the defendant." So the judge allowed the voluntary homicide defense to be considered, but determined that charge was not "established by the evidence", I presume?
l33tminion: (LJ Base)
Too much to talk about, so I'm going to do my best to get it all out there.

CrisisCamp Boston:

My company is hosting an unconference this Saturday. Interested in technology (especially information technology) used in disaster response? You should go!

Citizens United vs. Federal Election Comission:

In a 5-4 ruling today, the Supreme Court overturned limits on corporations spending money on political campaigns. Full text of the opinion here. Disclosure requirements were upheld, businesses still can't deduct money spent on politics as a business expense.

The Guantanamo Suicides:

Harper's Magazine has an investigative piece about how the Bush administration covered-up (and the Obama administration continues to cover up) the murders of three Guantanamo Bay prisoners who were tortured to death at a secret site just outside the prison perimeter. This story has not become widespread in the US media, for some reason. I realize Obama doesn't want to be focused on the past, but actively carrying on a cover-up is an entirely different matter.

An Unexpected Development:


Hamas has accepted Israel's right to exist and would be prepared to nullify its charter, which calls for the destruction of Israel, Aziz Dwaik, Hamas's most senior representative in the West Bank, said on Wednesday.

The MA Senate Special Election:

Length Disproportionate to Importance )
l33tminion: (Bookhead (Nagi))
[livejournal.com profile] solarbird seems upset at this piece of news:

Sedgwick County District Judge Warren Wilbert ruled Friday that attorneys for [Scott] Roeder can argue that he shot [Dr. George] Tiller to protect the lives of unborn babies — and, therefore, could be guilty of voluntary manslaughter instead of first-degree murder.

The judge said Roeder could not argue that the killing was actually justified but rather that he had an unreasonable but honest belief that the circumstances justified deadly force.

Now, admitting the argument in court is not the same as finding the argument persuasive. From what I've heard, the general principle is to error on the side of admitting useless arguments, especially from the defense (either based on the principle that a defendant should be allowed as vigorous a defense as possible, or the desire to avoid appeals based on a particular argument being excluded).

I wished the article contained a bit more legal context, though. So I went to look stuff up.

Still Am Not A Lawyer )
l33tminion: (Rainbow)
Huh, I'd kind of thought that the chance for near-term legal action would be limited to another ballot initiative in 2012. However, it looks like a lawsuit has been filed to challenge CA's anti-same-sex-marriage amendment in federal court on 14th Amendment grounds. There's a petition ongoing to attempt to persuade the judge to allow the trial to be televised, evidently Focus on the Family is trying to persuade the judge otherwise in an attempt to limit public attention paid to the case.

Update: The petition was signed by over 82k people in less than 24 hours, and the judge approved court-controlled recording of the trial for delayed release onto YouTube (YouTube is evidently the go-to now for releasing government video to the public?), but not live televised broadcast. The pre-trial ruling on broadcasting is being appealed, though, so the petition drive is ongoing.
l33tminion: (Emo)
I'd thought I was done with my 2008 taxes, but I'd been confused (realizing this was the one damper on my enjoyment of Thanksgiving break). As a part-year resident of Ohio with only self-employment income earned in Massachusetts while I was living in MA but a resident of OH, I didn't think I needed to file state or municipal tax returns in OH. That was incorrect.

To confuse things further, OH and Ohio Regional Income Tax Agency municipalities (of which Shaker Heights is one) have different ways of calculating which not-currently-in-state resident business income is taxable.* RITA wants a piece of the action for all income earned while resident in the municipality in question, no matter where the business was actually done. OH taxes a portion of self-employment income by out-of-state residents, based on how much of the business activity was in OH (there's a complex formula, but for me the answer was "none of it"). So after calculating things out, I owe Shaker Heights $42 through RITA and owe OH nothing... but RITA might charge interest, and OH could charge interest plus a ~$400 penalty for not filing on time.

Of course, I'll include "please don't fine this poor confused taxpayer" letters, but it's not clear I'll have any recourse if they turn me down aside from handing over the loot. What a pain.

* NB: IANATL, this is my best understanding after reading a bunch of confusingly-written forms and instructions. (RITA does pretty well, but the OH state documents are more confusing than the federal ones, even.)
l33tminion: (Drama)
In response to this post from [livejournal.com profile] solarbird:

The FTC evidently has a new version of their policy on endorsements in advertising, revised to account for product reviews online. The meat of the controversial bit is as follows (for the whole policy in question, read p. 75-81, examples 7-9 are the ones relevant to "new media"):

When there exists a connection between the endorser and the seller of the advertised product that might materially affect the weight or credibility of the endorsement (i.e., the connection is not reasonably expected by the audience), such connection must be fully disclosed.

So, if your audience doesn't expect that you received a certain sort of compensation (including review copies of a product), and there's a reasonable chance that will affect how they react, you should disclose that.* The company giving you the compensation should ask you to disclose that and complain if you neglect to.

This is a simple, common-sense regulation. And this is great for bloggers, since it means that the FTC will be going after deceptive astroturf campaigns, which are a bane to the credibility of honest reviewers.

The regulations in question don't make a distinction between forms of media, except in how that affects the expectations of the audience. If people expect newspaper reviewers to receive review units but not bloggers, than non-disclosure in the latter case may really be deceptive in the way the former isn't.

Thus, while I now have a low opinion of Richard Cleland's being-interviewed skills, I think these regulations are good, and I don't expect a collapse in the sending-free-stuff-to-people-for-review industry as a result. Worst case, review units will more often come with notes along the lines of "please mention you received this for free if you review it" and more reviews will start with "I received a free [product] from [company]".

* Alternately, you could forgo compensation... but disclosing that you were compensated is probably much, much easier (and more beneficial for you).
l33tminion: (Default)
This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is "actually" innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged "actual innocence" is constitutionally cognizable. (from here (PDF, six pages), joined by Thomas)

Fortunately, Scalia was on the losing side of the particular motion being decided, but I have yet to see a quote that more clearly illustrates the problems with Scalia's brand of jurisprudence: The quote may be technically correct, but yet is so very, very wrong.

(It's also worth reading Stevens's takedown of Scalia in the concurring opinion here (PDF, three pages), joined by Ginsburg and Breyer.)
l33tminion: (Bookhead (Nagi))
Last week, the Obama administration DOJ filed a brief defending the Defense of Marriage Act against a federal lawsuit by a same-sex couple married in CA. The brief caused a great deal of consternation in the liberal blogosphere. That led to me spending part of another train ride working my way through a legal document (that was a week ago, but I just found the time to write it up).

I'm not going to argue about whether filing the brief at all was a good idea, I accept that the DOJ is required to defend the US government when the US government is sued. But that's not to say that I don't have criticism for the content of some of the arguments.

(I have been informed that my last law-related post was rather jargon-y, so if there's something that you don't understand term-wise, please comment and I will try to explain. This one will hopefully be a little more straightforward, since the document in question isn't nearly as long.)

The case in question, Smelt and Hammer v. CA, US, and Does 1-1000 represents yet another attempt by the plaintiffs in question to challenge DOMA. The previous case, Smelt v. County of Orange, was rejected in federal court and rejected again on appeal, the case was dismissed due to lack of standing (since the defendants weren't married, they had no argument that DOMA had harmed them). After getting married under CA law, they decided to try again. They filed suit in federal court, asking for fees to be waived, and the request to get fees waived was denied, they filed the same suit in state court, adding CA as a defendant. The state court approved a wavier of fees. The DOJ filed a notice of removal to have the case moved back to federal court, then filed a brief in their defense. The brief argues as follows (quotes are from the brief unless otherwise noted):

Rather Longer Than Expected )

Here's the most interesting and important bit, I'm leaving this outside of the cut because if there's one bit you read, it should be this one:

The brief argues that DOMA is just an exercise of caution on Congress's part, allowing states to experiment with novel forms of marriage without messing things up for other states or the federal government.

Consistent with our federalist system, which allows each State to "serve as a laboratory[,] and try novel social and economic experiments without risk to the rest of the country," [citation], DOMA does not address whether a same-sex couple may marry within the United States... At the same time, it cautiously declined to extend federal benefits on the basis of a newer definition of marriage that no States had adopted at the time of DOMA's passage (and only a very small minority of States have since). Thus, by defining "marriage" and "spouse" as the legal union of a man and a woman and affording federal benefits on that basis, Section 3 of DOMA simply maintained the status quo: it continues the longstanding federal policy of affording federal benefits and privileges on the basis of a centuries-old form of marriage, without committing the federal government to devote scarce resources to newer versions of the institution that any State may choose to recognize.

This is the brief's critical misstep. Same-sex marriage is not like some novel contract or financial instrument or corporate structure. "Same-sex marriage" is marriage. It's not a novel structure at all!

In fact, that's the whole point! States have experimented with novel legal structure in the same general domain as marriage, and the various cases that ruled such structures were insufficient in providing equal rights (including CA's In re Marriage Cases) did so precisely because they were not the same as marriage. CA, MA, et. al. did not "gay marry" these people, it married them. And you know what really doesn't respect "state sovereignty"? Picking through the group of people married by a state and saying "these ones count, these ones don't"!

Footnotes in the Cut Also Cut )


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