First of all, the city attorney wasn't sure if the case was civil or criminal. The professor definitely was not in his car when it was found to have been speeding, but he received a violation notice. He decides to challenge it and learns how little interest local attorneys for the city have in the law.
Supreme Court rules against gerrymandering - "Ginsburg's opinion is now the law, and I suspect that, in a few decades, this case will be considered one of the most important of the term. Thus far, only California has copied Arizona and created an independent redistricting commission. But with the court's blessing, more states are likely to follow suit. These commissions have been hugely successful thus far, a real boost for representative democracy and a cure for the notoriously stubborn problem of gerrymandering. Had Justice Anthony Kennedy swung away from Ginsburg and aligned with his fellow conservatives, America would be facing down a distressingly undemocratic future."
Wait, Women Don't Have Equal Rights in the United States? - Tabby Biddle, Huffington Post. The History Behind the ERA Amendment ( brief introduction, argument for why ERA is needed). March 22, 1972 | Equal Rights Amendment for Women Passed by Congress (NYT). Chronology of the Equal Rights Amendment, 1923-1996 (NOW). "The ERA Is a Moral Issue": The Mormon Church, LDS Women, and the Defeat of the Equal Rights Amendment (Neil J. Young, American Quarterly, Vol. 59, No. 3, Sep., 2007)
The New Mexico Law Review just published an issue dedicated entirely to Breaking Bad. It features eight articles that analyze the illegal acts committed on the show, their real-world parallels, and the consequences attached:
Given the array of legal issues raised, our editorial board was excited to take the opportunity to present analysis of Breaking Bad by scholars and legal practitioners. In April 2014 we issued a call for papers requesting abstracts on topics including the application of the Fourth Amendment to drug crimes under the New Mexico and/or U.S. Constitutions; the War on Drugs; ethical duties of lawyers; drug-offense sentencing; drug enforcement in rural, urban, and/or Tribal areas; and substance abuse and the law.Some of the greatest legal minds in New Mexico (and the country) came together to examine how Walter White would look to a jury, how the war on drugs affects peripheral citizens like Skyler, and whether Heisenberg could have stayed legit by fighting for his stake in Grey Matter in the courts. [via] [more inside]
Happy Valentine's day from Justice Scalia: (video) how his dissent in DOMA case US v. Windsor (PDF here) helped lead to recent rulings against state gay marriage bans.
Contempt of Cop Activists range from hard-conservative gun rights types, who carry copies of the Constitution in their pockets, to left-leaning civil liberties advocates. In both cases, they triumphantly upload video trophies of their confrontations to the internet. Quite a few show "checkpoint refusals" at roadblocks erected by police looking for drunken drivers, or by federal agents hunting illegal aliens. Courts here have held that police have the right to operate such stops. But the courts have also ruled that citizens are free to remain silent, and can refuse to allow searches and ignore orders to submit to "secondary inspections" unless police detain them — which requires the higher hurdle of reasonable suspicion or probable cause to believe an offence has been committed. [more inside]
Supreme Court to consider lifting campaign contribution limits. Reversing McCutcheon v. Federal Election Commission would allow unlimited individual campaign contributions.
In Conversation: Antonin Scalia "On the eve of a new Supreme Court session, the firebrand justice discusses gay rights and media echo chambers, Seinfeld and the Devil, and how much he cares about his intellectual legacy ("I don’t")." [more inside]
Who's a 'journalist'? People who can afford to be- and absolutely not Julian Assange. A US Senate panel has approved legislation to protect journalists from having to reveal their confidential sources. The proposed law defines 'journalism' by profession, and not by practice- shutting out citizen journalists while protecting corporate media.
In a 5-4 ruling on Salinas vs. Texas, the SCOTUS ruled that silence can be used in court. (PDF) Without being placed in custody or receiving Miranda warnings, Genovevo Salinas voluntarily answered some of a police officer’s questions about a murder, but fell silent when asked whether ballistics testing would match his shotgun to shell casings found at the scene of the crime. During his trial in Texas state court, and over his objection, the prosecution used his failure to answer the question as evidence of guilt. He was convicted, and both the State Court of Appeals andCourt of Criminal Appeals affirmed, rejecting his claim that the prosecution’s use of his silence in its case in chief violated the Fifth Amendment. Analysis on SCOTUSblog
Beate Sirota Gordon, Long-Unsung Heroine of Japanese Women’s Rights, Dies at 89: a NYT obituary relates the fascinating story of a young woman who was just the right person in just the right place at just the right time and managed to strike a blow for gender equality. [more inside]
In less than an hour, the Supreme Court will hand down its final judgment in what has become one of the most crucial legal battles of our time: the constitutionality of President Obama's landmark health care reform law. The product of a strict party line vote following a
year century of debate, disinformation, and tense legislative wrangling, the Affordable Care Act would (among other popular reforms) require all Americans to buy insurance coverage by 2014, broadening the risk pool for the benefit of those with pre-existing conditions.
The fate of this "individual mandate," bitterly opposed by Republicans despite its similarity to past plans touted by conservatives (including presidential contender Mitt Romney) is the central question facing the justices today. If the conservative majority takes the dramatic step of striking down the mandate, the law will be toothless, and in danger of wholesale reversal, rendering millions uninsured, dealing a crippling blow to the president's re-election hopes, and possibly endangering the federal regulatory state.
But despite the pessimism of bettors, some believe the Court will demur, wary of damaging its already-fragile reputation with another partisan 5-4 decision. But those who know don't talk, and those who talk don't know. Watch the SCOTUSblog liveblog for updates, Q&A, and analysis as the truth finally comes out shortly after 10 a.m. EST.
The perfect location for the perfect crime. Due to a loophole in the US Constitution there is an area of Yellowstone Park where you may be able to get away with a major crime. U Michigan Prof Brian C Kalt looks into this loophole and gauges your chance at success. Someone has tried. [more inside]
Public interests will be harmed absent requiring defendants to make available unencrypted contents in circumstances like these. Failing to compel Ms. Fricosu amounts to a concession to her and potential criminals (be it in child exploitation, national security, terrorism, financial crimes or drug trafficking cases) that encrypting all inculpatory digital evidence will serve to defeat the efforts of law enforcement officers to obtain such evidence through judicially authorized search warrants, and thus make their prosecution impossible.
The "if you were innocent, you'd have nothing to hide" argument rears its head, in a big way. [more inside]
The "if you were innocent, you'd have nothing to hide" argument rears its head, in a big way. [more inside]
In a 32 page report to Congress [pdf] President Obama concludes:
...the current U.S. military operations in Libya are consistent with the War Powers Resolution and do not under that law require further congressional authorization, because U.S. military operations are distinct from the kind of “hostilities” contemplated by the Resolution’s 60 day termination provision.Now, the New York Times reports that this legal opinion was reached by rejecting the views of top lawyers at the Pentagon and the Justice Department. It is instructive to compare President Obama's actions with those of his predecessor, George W. Bush. [more inside]
Right before the 10th anniversary of the first same-sex marriage in Canada, Saskatchewan's highest court has ruled that a proposed law allowing provincial marriage commissioners to refuse to wed same-sex couples is unconstitutional. Thecourt.ca gives its thoughts on the decision and the social context surrounding it.
On August 30, 1978 a Polish airliner was hijacked and redirected to Tempelhof airport in West Berlin. Torn between a policy of supporting defection and a recently-signed anti-hijacking treaty, the West German government ceded jurisdiction over the defendants to the United States government, which was still technically an occupying power and had an interest in the case because of the US Air Force Base at Tempelhof. The result was the one and only decision rendered by the United States Court for Berlin, United States v. Tiede. [more inside]
Today, on the last day of this year's term, the Supreme Court of the United States issued its opinion in Ricci v. DeStefano, the latest in the Court's line of decisions on Title VII and the role of race in employment decisions. The famous case centers on white firefighters' claims of race discrimination following the town of New Haven's decision to scuttle a promotion exam after white test takers performed disproportionately better than black firefighters. [more inside]
The Obama Justice Department has released nine legal memos from the Bush administration that assert broad extra-Constitutional powers for the president. The memos assert that both the First and Fourth Amendments may be subordinated to the needs of wartime. [more inside]
In 2003 a school official ordered that a student be searched for the substance known as 2-[4-(2-methylpropyl)phenyl]propanoic acid. The case has now made its way to the United States Supreme Court. [more inside]
When Judges Make Foreign Policy. "In a globalized, post-9/11 age, decisions made by the Supreme Court are increasingly shaping America's international relations. When the next justice is appointed, our place in the world may well hang in the balance."
“I actually ran it by a number of colleagues who teach administrative law and constitutional law,” Professor Duffy said, recalling his own surprise at finding such a fundamental and important flaw. He thought he must have been missing something. Law prof notices that every US patent approved since 2000 was approved unconstitutionally and thus are all probably invalid. Looks like he may be right. [more inside]
Texan judge rules $5 "pole tax" violates First Amendment rights. Further, Judge Scott Jenkins found no evidence to justify the purpose of HB 1751 (PDF), finding the anecdotal link of the patronage of strip clubs with a lack of health insurance and increased sexual assault rates for dancers insufficient, and ordered the state to pay the plaintiffs' legal fees. Activists are already looking to appeal Jenkins' ruling and reenact the tax. (Previously on Metafilter.)
A very special 'This American Life' about an administration with the endemic belief that laws only apply to the little people, and a limitless refusal to concede on even petty issues, no matter the costs. The highlight is about immigrant widows of US citizens (30:50). The program also discusses the constitutional beliefs of the presidential candidates. [more inside]
SCOTUS Hears Oral Arguments On Case Determining Whether American Citizens Have the Right to Carry Hanguns under the Second Amendment
Oral arguments were heard today in District of Columbia v. Heller, the first occasion in almost 70 years for the Supreme Court to decide the question, "Just what does the Second Amendment to the U.S. Constitution mean?"
A Magistrate Judge in the U.S. District Court in Vermont has ruled that a man allegedly caught with child pornography on his laptop need not reveal his PGP password (yes, authorities shut down the laptop and now can't get at the alleged porn) pursuant to the Fifth Amendment's protections against self incrimination. The decision is here[PDF]. A decent write-up (from CNET of all places) is here. This appears to be the first decision ever to directly address this issue, and many commentators had thought it would come out differently. The major question is whether revealing one's PGP key is "testimonial" or not. According to the Supreme Court, giving up fingerprints or blood samples isn't, nor is standing for a lineup, nor is handing over the key to a safe, but if it's combination safe, well maybe that's different. Never let it be said that your Fifth Amendment rights are easy.
9/11 changed everything? And the NSA is only looking at overseas and terrorist-related phone and internet records?
to gather information about Americans' phone records --... the NSA had approached the company (Qwest) about participating in a warrantless surveillance program to gather information about Americans' phone records. ...Nacchio's account, which places the NSA proposal at a meeting on Feb. 27, 2001, suggests that the Bush administration was seeking to enlist telecommunications firms in programs without court oversight before the terrorist attacks on New York and the Pentagon. The Sept. 11 attacks have been cited by the government as the main impetus for its warrantless surveillance efforts. ... -- The Administration's crimes and illegal spying on all of us and Quest's punishment for not going along with their plans.
But Is It War? A vigorous debate among three conservatives about the limits of post-9/11 executive power.
Constitutional Showdowns. Eric Posner and Adrian Vermeule analyze constitutional showdowns, ask what rate and level of showdowns would be socially optimal, and ask whether socially optimal showdowns will be supplied by government institutions acting to promote their policy preferences and institutional interests.
A very big day for the Supreme Court. In Morse v. Fredrick, the Court ruled that a school could suspend a child for holding up a "Bong HiTs for Jesus" banner. (Previous post here). In Hein v. Freedom from Religion, the Court held that taxpayers lacked standing to challenged Faith Based Initiatives (previous discussions). In Wilke v. Robbins, the Court held that land owners do not have Bivens claims if the federal government harasses landowners for easements. In FEC v. Wisconsin Right to Life, the Court held that the portion of the campaign finance law which had blackout periods before elections on issue advocacy advertising was an unconstitutional restriction of speech (other). This Thursday, the Justices will deliver their last opinions of the term, including a death penalty case and the school assignment cases. (Opinions are .pdfs)
"Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix." Thankfully, the Supreme Court disagreed, on June 12, 1967. Happy Loving Day.
Public gatherings restricted? Check. Shutdown of independent businesses? Check. Lockdown on traffic and transportation in the area? You bet. Lawmakers in Baltimore trying to curb the city's homicide rate (already 108 this year) have come up with some "desperate measures" of questionable constitutional legality, including heightening police presence in order to lockdown streets in "emergency areas." It has been called, "partial martial law" by some, and one has to wonder if the city of Baltimore may not do better to take a page from The Wire's Hamsterdam for a solution to their inextricably linked drug and homicide issues.
New Justices, New Rules: How the Supreme Court's Validation of the Federal Partial-Birth Abortion Ban Act Affects Women's Constitutional Liberty and Equality. A two-part FindLaw analysis of Gonzales v. Carhart.
The First Freedom Project --new from the Dept of Justice, announced at the Southern Baptist Convention along with a call for their help---specifically and only to protect the religious from discrimination against them. Many are not impressed: The administration has often ignored the importance of the no establishment principle by supporting attempts of governments to endorse a religious message, using tax dollars to fund pervasively religious organizations, allowing religious discrimination in hiring for federally funded projects, ... Legal strategies and actions from groups like the Alliance Defense Fund and ACLJ are now official DOJ policy, it appears. ...In his statement, Gonzales mentioned several cases litigated by ADF and its allies ...
Lieutenant Commander Charles Swift is the Navy lawyer who took the case of defending Salim Ahmed Hamdan (aka Osama bin Laden's driver). A quick plea-bargain was expected, but Swift managed to get his client a hearing before the Supreme Court in Hamdan v. Rumsfeld. While a complicated and nuanced decision, most would agree that "Swift, one of five judge advocate general lawyers assigned to represent the first round of commission defendants, determinedly stepped through this looking glass, defying skepticism at home and abroad that he and his colleagues would do more than a perfunctory job." However, despite all of his efforts and obvious legal abilities, he was recently passed over for promotion and effectively fired under the military's "up or out" promotion system. (Previously:   )
"If this program is unlawful, federal law expressly makes the ordering of surveillance under the program a federal felony. That would mean that the president could be guilty of no fewer than 30 felonies in office." George Washington University Law Professor Jonathan Turley on what's missing in the latest debate over the NSA program. [Bugmenot, Via Glenn Greenwald.]
"And yet the people who invented this country saw an aggressive, independent press as a protective measure against the abuse of power in a democracy, and an essential ingredient for self-government." Bill Keller, executive editor of the New York Times, publicly responds to criticisms on the publication of information about clandestine surveillance of private bank records of Americans, offering a rare glimpse into the Fourth Estate's complicated negotiations with the government over issues of public interest.
...Bush has been aggressive about declaring his right to ignore vast swaths of laws -- many of which he says infringe on power he believes the Constitution assigns to him alone ... President Bush has quietly claimed the authority to disobey more than 750 laws enacted since he took office, asserting that he has the power to set aside any statute passed by Congress when it conflicts with his interpretation of the Constitution. ... Long, eyeopening article laying out what laws have been ignored and why. ...Bush has cast a cloud over 'the whole idea that there is a rule of law," because no one can be certain of which laws Bush thinks are valid and which he thinks he can ignore. 'Where you have a president who is willing to declare vast quantities of the legislation that is passed during his term unconstitutional, it implies that he also thinks a very significant amount of the other laws that were already on the books before he became president are also unconstitutional," ...
The terrorists in New Jersey have been captured. They're, uhm, like 15 years old. A fine example of how anti-terror laws like the Patriot Act can be subject to mission creep. (The "terrorists" at the Thomas Merton Center for Peace and Justice in Pittsburgh seem to be still at large.)
Yesterday the U.S. Supreme Court held in a 5-3 decision (.pdf) that police may not search a home if any inhabitant of the home is present and objects to the search, even if another inhabitant consents. The Court drew what it acknowledged is a “fine line” – if a co-inhabitant is at the door and objects, the police can’t enter; but if the co-inhabitant is somewhere else – even in a nearby police car – and has no opportunity to object, then police don’t need his or her consent. Chief Justice Roberts issued his first written dissent, blasting the majority’s “random” and “arbitrary” rule and suggesting that the ability of police to respond to domestic violence threats could be compromised. The zingers in the footnotes may reveal “strains behind the surface placidity and collegiality of the young Roberts court.”
"Don't worry Mr. President, we have Kansas surrounded." Warrantless searches: they're not just for wiretaps anymore. U.S. News and World Report probes the Bush administration's covert drive to conduct physical searches of American homes without court approval.
Back when President Bush declared a state of emergency, then did it again, and people were wondering Could Terrorism Result In A Constitutional Dictator? I was reminded of the UN invasion paranoia under Clinton and Senate Report 93-549, written in 1973, which said "Since March 9, 1933, the United States has been in a state of declared national emergency." and the question was have we been living in a state of National Emergency for over six decades? Back then it was easy to write off with the tinfoil hat crowd. But it seems throughout the nation's history, presidents have in fact been using executive orders on "emergencies" to circumvent the Constitution's division of power.
"We make no distinction between a small violation of the Constitution and a large one. Both are equally invalid. Indeed, in the system of government envisioned by the Founding Fathers, we abhor the small violation precisely because it is precedent for the larger one." (PDF) By a 5-2 count, the Florida Supreme Court ruled Thursday that public monies may not be used to fund private schools, thus closing off avenues for embezzlement and violations of the Establishment Clause that otherwise prevents a US state from endorsing, or establishing specific religious organizations.
Abu Ali guilty of terror plot. A Virginia jury has found Ahmed Omar Abu Ali guilty of terrorism related crimes. The prosecution charged he provided material support to Al Qaeda (pdf). His defenders claim his confession while in Saudi custody was obtained through torture. Does the goal of preventing terrorism justify relying on the Saudi's questionable interrogation methods?
The Forgotten Amendment: The story of the 27th Amendment to the U. S. Constitution. Back in 1982, while doing research for a government class, UT Austin student Gregory Watson stumbled across an unratified constitutional amendment from 1789. Noticing that the amendment had had no time limit for ratification, Mr. Watson embarked upon a campaign to amend the U. S. Constitution. Sadly, Watson only earned a "C" on his paper for government class, in which he'd argued the amendment was still viable.
"...God as the sovereign source of law, liberty, or government." The re-introduction of this bill on March 3rd seemed to have been hardly noticed. It was first brought up last year by Senator Richard Shelby, Rep. Robert Aderholt, and Roy "Ten Commandments" Moore. I wonder if section 201 of the CRA will affect Article VI, Sect. 2. (born of, the 2004 thread (s))
So, what now? Do they charge him? He's an American citizen who's spent 2½ years in custody - charged with no crime - without his lawer, access to due process, habeas corpus, etc. He has no constitutional safeguards and can be held like that because the president says he can be held like that. Who says the president has that power? The president does. Could he have even made a "dirty bomb?"
Seizure of land for the public good or unconstitutional cash grab? Originally, the power of eminent domain was used by government to condemn property for the public good, usually to build railroads or highways or bridges. This power has been expanded to redevelop dilapidated neighbourhoods, and ultimately, "economic development" (public good by way of jobs and taxes). What will you do when Pfizer wants to build a research facility *on* your backyard and your government helps them do it? Hint: it's nothing new, just wait for 2008 or 2012 (maybe).
More than a third of students surveyed think the First Amendment to the Constitution goes "too far in the rights it guarantees." Reported here.
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