Legal Eagles: Current Law Case Discussion & Other Legal News

[Grand Potentate]

Since I keep shitting up other threads talking about law issues I figured it was time to branch out. We were talking about the Michigan Affirmative Action case in another thread and I wanted to discuss it further. This was a good synopsis that I read earlier:

Supreme Court Quietly Rolls Back Equal-Protection Doctrine

Yesterday the Supreme Court upheld the constitutionality of Michigan's affirmative action ban, known popularly as "Prop 2." It was, as widely reported, a defeat for affirmative action, but a limited one. The court didn't say that affirmative action was federally unconstitutional, merely that if a state like Michigan decides to ban it, the court won't interfere.

But yesterday's ostensibly modest ruling in Schuette v. Coalition to Defend Affirmative Action has a much wider effect on race and the law. Early in Justice Anthony Kennedy's decision, he writes that the case is "not about the constitutionality, or the merits, of race-conscious admissions policies in higher education." He's totally right: It was really about the question of whether or not a majority of voters can literally change the political process to block anti-discrimination laws.

Now a plurality of the Supreme Court is saying that effectively, yes, people are entitled to set each other's rights to referendum this way. Kennedy's opinion preserves a very thin sliver of power for the courts to intervene. But the way he's got it set up now, the power will only be invoked when a court doesn't like the rights in question.

After all, legal scholars will tell you, and they are not completely wrong, that the result in Schuette was "inevitable." But it's only inevitable because the Court decided to make it inevitable, through its interpretation of facts and history in its other recent affirmative action cases, Gratz and Grutter. In both of those, the Court based its conclusions on the premise that America's racist past is, well, in the past. If you accept that racism is over, then logically, there's no basis for laws to remedy it. It's logical, but it's not true.

Yesterday's case saw that illogical premise undermine something called the "political process doctrine." It is an interpretation of the Equal Protection clause that comes out of a a line of cases dating back forty-five years. The first was 1969's Hunter v. Erickson, which dealt with a city charter amendment in Akron, Ohio. Akron's city council had passed a fair-housing ordinance which forbade racial discrimination, to the dismay of certain of its residents. In response, the citizens of Akron passed a referendum to say that the city council couldn't exercise its normal law-making powers to pass any more anti-racism laws, but would need particular approval from the voters first.

Another, more recent case was 1982's Washington v. Seattle School District. There, after the Seattle school district adopted a school busing plan that would encourage desegregation, Seattle residents passed a ballot measure they called Initiative 350. It effectively dismantled the scheme by legislating that students should only be bused to a school that was "geographically nearest or next nearest to a student's place of residence."

In both Hunter and Seattle, the Supreme Court knocked down the ballot measures. Its reasoning was probably best summarized in Hunter when the Court wrote that while the law

on its face, treats Negro and white, Jew and gentile in an identical manner, the reality is that the law's impact falls on the minority. The majority needs no protection against discrimination, and, if it did, a referendum might be bothersome, but no more than that...

To this, in Seattle, the Court added the observation that,

... the Fourteenth Amendment also reaches "a political structure that treats all individuals as equals"... yet more subtly distorts governmental processes in such a way as to place special burdens on the ability of minority groups to achieve beneficial legislation.

Because we have the clarity of hindsight, it's easy to see why the Court went that way. In each case voters, unhappy that an anti-discriminatory measure had passed, used ballot initiatives to actually change the political process, with the relatively obvious motive of making it harder for anti-discriminatory laws to get passed. The political process doctrine was created to guard against that problem, plain and simple.

But with the 6-2 decision in the Prop 2 case, that doctrine was substantially weakened. Prop 2's opponents argued that the measure had changed the political process in a way that would effectively burden minority students—that now, if they wanted to advocate for a more diverse student body, they would have to overturn a constitutional amendment. And when Sixth Circuit agreed and struck down Prop 2, it relied substantially on Seattle, and that phrase about subtle distortion, to do so.

It was not suprising that in yesterday's decision, both Justices Antonin Scalia and Clarence Thomas were in favor of tossing Hunter and Seattle altogether. Scalia, being Scalia, was apparently willing to renounce the whole premise behind the justice gains of four decades ago. Akron had simply blocked the city council from making any sort of race-based regulation about real estate, after all, without reference to whether those regulations would forbid or encourage discrimination.

But Justice Kennedy, who wrote for the plurality of the Court yesterday, offers the milder and thus somewhat more insidious worry that Seattle can be too broadly interpreted. He frets that the political process doctrine assumes that all black people have a single political interest, which the Equal Protection clause demands that we protect. He just doesn't buy that idea:

It cannot be entertained as a serious proposition that all individuals of the same race think alike. Yet that proposition would be a necessary beginning point were the Seattle formulation to control... But in a society in which those lines are becoming more blurred, the attempt to define race-based categories also raises serious questions of its own. Government action that classifies individuals on the basis of race is inherently suspect and carries the danger of perpetuating the very racial divisions the polity seeks to transcend.

In other words, although the case is not about affirmative action, it is a case whose outcome depends in part on whether or not you believe that we "live in a society in which [racial] lines are becoming more blurred." That's putting it delicately, even. Because to get to the next worry, that you might perpetuate "racial divisions" by daring to address race, you have to believe that the lines are already so blurry that no particular group in America today has any greater concern than another about disenfranchisement from the political process.

In other words: You have to be willfully blind to the legacy of structural racism in America. And that's why Justice Sonia Sotomayor relies heavily on that history in her dissent, arguing that "it is a history that still informs the society we live in, and so it is one we must address with candor."

But she didn't find many supporters on this point among her colleagues, only Ruth Bader Ginsburg. (Elena Kagan sat this case out, probably because she'd been involved as solicitor general.) The rest of the Supreme Court pontificated at length on the rights of voters and about the plain meaning of the equal protection clause, while completely ignoring the reality on the ground. Even Justice Stephen Breyer said he agreed with Kennedy, in this limited context.

Check out Justice Roberts' opinion, and you'll find him framing the issue as being about "racial preferences," even though we've been told the case is not about affirmative action proper. But that frame allows Roberts to smarmily lecture Sotomayor:

To disagree with the dissent's views on the costs and benefits of racial preferences is not to 'wish away, rather than confront' racial inequality... People can disagree in good faith on this issue, but it similarly does more harm than good to question the openness and candor on either side of the debate.

But here's the thing that I guess no one can explain to Roberts: Sometimes debates—and college admissions systems—are stacked. One fact went mostly unmentioned in most of the paper expended on Prop 2 yesterday: That the ballot initiative had been plagued by accusations of corruption.

A Michigan federal court found, for example, that the group that brought the ballot initiative in the first place "engaged in systematic voter fraud by telling voters that they were signing a petition supporting affirmative action." There is, in other words, proof here that everyone wasn't working with equal openness and candor.

Sure, probably, "reasonable people could disagree" about affirmative action. The point is, though, that when they do so in a democratic process, everyone should be on equal footing. That is, someone might want to mention to Roberts, exactly the right the now-weakened "political process doctrine" was designed to protect.​

 

[Zé Ferreira]

Equal Protection doctrine refers to the universal protection of negative rights. Affirmative Action is the imposition of positive gov't action on what they have determined to be a protected class.

 

[Zé Ferreira]

Scalia and Ginsburg have been on the same side rather often in a lot of criminal procedure cases. Not as surprising as you would think. I think they paired up for last year's breathalyzer decision, or whatever that was about. Blood / DNA testing? As well as a few other ones.

 

[Grand Potentate]

Equal Protection doctrine refers to the universal protection of negative rights. Affirmative Action is the imposition of positive gov't action on what they have determined to be a protected class.

Is this English? What the fuck does this even mean?

 

[Zé Ferreira]

EP = reserving rights to the entire citizenry.

AA = promoting deliberate inequality to a select group.

 

[Grand Potentate]

EP = reserving rights to the entire citizenry.

AA = promoting deliberate inequality to a select group.

Not those. I was having trouble with, in this case, what "negative rights", "positive government action", and "protected class" are referring to.

 

[Zé Ferreira]

Negative Rights = rights that exist within the population, outside of government control. The government does not grant negative, or natural, rights to people - but can recognize them (as in the Bill of Rights, describing rights retained by the people, not "Granted" by the govt)

Positive Gov't Action = probably not a technical term, but an affirmative action taken by the Gov't in promulgation of one of it's policies.

Protected Class = a class/group of people whom the legislature has set apart as having special rights/considerations, apart from "the majority". Title VII, for example, creates protected classes based on race, gender, religious persuasion, national origin in the subject of employment discrimination.

 

[Zé Ferreira]

http://en.m.wikipedia.org/wiki/Negative_and_positive_rights

I am generally not a fan of positive rights.

Nor were most Lockean thinkers.

I know this. And support you in such.

 

[Zé Ferreira]

Oral Arguments today on another privacy case: Do police have the ability to, essentially, confiscate your Iphone or other associated Cloud device to determine your last communications, etc upon detainment?

http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-132_h315.pdf.

 

[Grand Potentate]

Supreme Court did something right for
Once in upholding the EPA's pollution laws for cross-state pollution.

 

[Russell Street]

As with all things, get a warrant.

 

[Zé Ferreira]

One would hope, although apparently, only the odd bedfellows of Scalia, Ginsburg, Sotomayor, and Kagan think so (based on a similar ruling last week)

 

[Grand Potentate]

Oh bullshit. Just sue somebody if they're impacting your environment.

Oh shut the fuck up.

 

[Grand Potentate]

http://www.theverge.com/2014/4/29/5665364/supreme-court-decision-makes-patent-fee-shifting-easier

Supreme Court decision makes it easier to stick patent trolls with court costs
By Adi Robertson on April 29, 2014 04:03 pm Email @thedextriarchy 6Comments

The Supreme Court thinks that if you bring a bad enough patent suit, you should have to pay for it. In a pair of rulings handed down today, the court loosened restrictions on patent lawsuit fee-shifting, in which the losing party must pay the winner's attorney's fees. It's a move that could make it harder for so-called "patent trolls" to bring frivolous lawsuits, as well as the first of a number of major patent cases expected this year.

Because of the frequency and increasing visibility of patent lawsuits, particularly those involving big names like Apple and Samsung or patent holding companies like Intellectual Ventures, the past few years have been spent debating whether the standards for issuing patents should be tightened, and whether bringing a suit should be harder. Though the definition of patent trolling varies, there's an undeniable subset of companies that bring lawsuits against small businesses using broad, tangentially related, or likely invalid patents. Victims have complained that expensive, arduous lawsuits make it cheaper to settle than to fight even an obviously bad lawsuit, and Congress is workshopping a patent reform bill meant to ease the process.

Loosening a "rigid and mechanical" framework

While it might not make the actual lawsuit easier, there's already a provision that lets courts punish people who bring bad patent claims. The Patent Act stipulates that in "exceptional" cases involving inappropriate conduct, obviously baseless claims, or clear bad faith, losers can be made to pay both parties' costs. But the option is rarely exercised, and a 2005 decision set a high bar for exceptional cases. Now, the Supreme Court has instituted a laxer interpretation, saying that the previous "rigid and mechanical" framework made it virtually impossible to apply the rules. Courts, said Justice Sonia Sotomayor in a majority opinion, should use their best judgment, defining an "exceptional" situation as "simply one that stands out from others" with regards to the strength of a company's case or the "unreasonable manner" in which they made it.

Given this new definition, the Supreme Court has sent two cases — Octane Fitness v. Icon Health and Fitness and Highmark v. Allcare Health — back to lower courts for reconsideration. In the future, the decision could tip the balance in settlement negotiations, giving companies that bring patent suits a little more to lose. It could also make it riskier to trawl for settlements by simply threatening a lawsuit. One of the complaints about patent trolls is that because they don't produce their own products, there's no way to counter-sue in a lawsuit, and this change could level the playing field. That depends, of course, on how much courts actually use fee-shifting. Judges are inclined to be conservative, especially because it can be difficult to distinguish between bad faith and simple misjudgment. "Courts are very skittish about shifting fees," says Mark Janis, director of the Indiana University Maurer School of Law's Center for Intellectual Property Research. "I think that they understand that somebody always loses, and it may look like the losing side didn't have a meritorious claim. So there's always going to be a little bit of room to say 'Oh, they knew it all along.'"

The House patent reform bill includes its own 'loser pays' model

Nonetheless, the Supreme Court's decision grants judges more leeway to crack down on baseless claims. It also moves the current system slightly closer to the one imagined by some Congressional patent reform advocates, who added a "loser pays" provision to the Innovation Act, which passed the House of Representatives last year. While supporters say it will make frivolous lawsuits less common, critics believe it could stop patent holders from bringing legitimate claims if they aren't positive they'll win. Janis thinks that today's decision could impact the Senate's patent reform debate. "This case could really change the negotiations," he says, because legislators who were previously on the fence could decide that there's no need to add an extra fee-shifting rule. For people seeking more aggressive reform, that's not necessarily ideal, but unlike the Innovation Act, the Supreme Court's decision is already a sure thing.

Today's rulings kick off a year filled with potentially important patent lawsuits. In March, the Supreme Court heard arguments for Alice Corp. v. CLS Bank, a case that could tighten the limits on controversial software patents. Nautilus v. Biosig, argued earlier this week, could rewrite the rules on ambiguous patents. Limelight Networks v. Akamai Technologies will address whether a company can be held responsible for encouraging indirect patent infringement, and Teva v. Sandozwill determine whether federal appeals courts can independently interpret the claims of a patent, or if they must rely on the district court's conclusions. The Senate Judiciary Committee is also set to mark up a patent bill brought by Senator Patrick Leahy (D-VT) next week, after a number of delays.

 

[Zé Ferreira]

Interesting. I don't know nearly enough about the issue to know how I feel about this, but appreciate the article

 

[Grand Potentate]

I thought that this was a particularly interesting study:

http://www.nytimes.com/2014/05/06/u...ns-speech-i-agree-with.html?ref=politics&_r=0

For Justices, Free Speech Often Means ‘Speech I Agree With’
MAY 5, 2014


By ADAM LIPTAK

WASHINGTON — Justice Antonin Scalia is known as a consistent and principled defender of free speech rights.

It pained him, he has said, when he voted to strike down a law making flag burning a crime. “If it was up to me, if I were king,” he said, “I would take scruffy, bearded, sandal-wearing idiots who burn the flag, and I would put them in jail.” But the First Amendment stopped him.

That is a powerful example of constitutional principles overcoming personal preferences. But it turns out to be an outlier. In cases raising First Amendment claims, a new study found, Justice Scalia voted to uphold the free speech rights of conservative speakers at more than triple the rate of liberal ones. In 161 cases from 1986, when he joined the court, to 2011, he voted in favor of conservative speakers 65 percent of the time and liberal ones 21 percent.

He is not alone. “While liberal justices are over all more supportive of free speech claims than conservative justices,” the study found, “the votes of both liberal and conservative justices tend to reflect their preferences toward the ideological groupings of the speaker.”

Social science calls this kind of thing “in-group bias.” The impact of such bias on judicial behavior has not been explored in much detail, though earlier studies have found that female appeals court judges are more likely to vote for plaintiffs in sexual harassment and sex discrimination suits.

Lee Epstein, a political scientist and law professor who conducted the new study with two colleagues, said it showed the justices to be “opportunistic free speech advocates.”

The findings are a twist on the comment by Justice Oliver Wendell Holmes Jr. that the First Amendment protects “freedom for the thought that we hate.” On the Supreme Court, the First Amendment appears to protect freedom for the thought of people we like.

“Though the results are consistent with a long line of research in the social sciences, I still find them stunning — shocking, really,” Professor Epstein said.

The study considered 4,519 votes in 516 cases from 1953 to 2011.

It was conducted by Professor Epstein, who is about to join the faculty at Washington University in St. Louis; Christopher M. Parker, a political scientist at Centenary College of Louisiana; and Jeffrey A. Segal, a political scientist at Stony Brook University.

There may be quibbles about how they coded individual votes. But it was seldom difficult to tell which side was invoking the First Amendment. Nor is it usually hard to assign an ideological direction to particular speakers or positions.

Continue reading the main story
Justices’ Votes Can Depend on the Speech
In Supreme Court cases involving the First Amendment, both conservative and liberal justices are more likely to vote in support of speakers if they share their ideology.

Percentage of Cases Each Justice

Supported a Free Speech Claim

Conservative

speaker or speech

Liberal speaker

or speech

0%

20%

40%

60%

ROBERTS COURT JUSTICE

Clarence Thomas

Antonin Scalia

MORE

CONSERVATIVE

JUSTICES

Samuel A. Alito Jr.

John G. Roberts Jr.

Anthony M. Kennedy

Sandra Day O'Connor*

Stephen G. Breyer

MORE

LIBERAL

JUSTICES

David H. Souter*

Ruth Bader Ginsburg

John Paul Stevens*

Source: Lee Epstein, Christopher M. Parker, & Jeffrey A. Segal, "Do Justices Defend the Speech They Hate?"
*Former justices. Justices Elena Kagan and Sonia Sotomayor are not included due to a lack of meaningful data, and the findings for Chief Justice Roberts and Justice Alito, based on roughly 25 votes each, are preliminary.

Note: Justice ideology rankings are based on “Martin-Quinn” scores. The study rates the difference in support for liberal versus conservative speakers statistically significant for all except Justices Breyer, Souter and Ginsburg.
Disputes at the margins will, in any event, be overwhelmed by the size of the gaps in many justices’ support for free speech.

The largest one, at least among members of the Supreme Court who cast more than 100 votes in free speech cases since 1953, belongs to Justice Scalia. Justice Clarence Thomas is not far behind. Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. have not cast enough votes for a reliable appraisal, but the preliminary data show a similarly significant preference for conservative speakers.

Justice Anthony M. Kennedy, the current court’s most reliable free speech vote, favored conservative speakers by a smaller but still significant margin.

The Roberts court’s more liberal members “present a more complex story,” the study found. All supported free expression more often when the speaker was liberal, but the results were statistically significant only for Justice John Paul Stevens, who retired in 2010.

In the case of Justice Stephen G. Breyer, the difference was negligible. And it is too soon to say anything empirically meaningful about Justices Sonia Sotomayor and Elena Kagan.

There are many ways to think about the Supreme Court’s free speech cases, of course. The new study is important, said Erwin Chemerinsky, the dean of the law school at the University of California, Irvine, “because it offers an explanation for justices’ behavior in First Amendment cases and shows how much justices’ ideology influences the speech they are willing to protect.”

But he added that it was possible to sort votes in other ways, too. “For example,” he said, “the Roberts court is very pro-speech except when the institutional interests of the government are at issue.”

The court has, he said, protected hateful speech at military funerals, allowed the sale of violent video games to minors and struck down campaign finance laws. But it ruled against a government whistle-blower, a student expressing a pro-drug message, a prisoner and a human-rights activist.

Justice Scalia was in the majority every time.

 

[Grand Potentate]

http://www.nytimes.com/2014/05/06/n...atedCoverage&region=Marginalia&pgtype=article

Town Meetings Can Have Prayer, Justices Decide
By ADAM LIPTAKMAY 5, 2014


Photo

Members of the group Faith and Action on Monday showed support for the justices’ ruling. Credit Carolyn Kaster/Associated Press

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WASHINGTON — In a major decision on the role of religion in government, the Supreme Court on Monday ruled that the Constitution allows town boards to start their sessions with sectarian prayers. The ruling, by a 5-to-4 vote, divided the court’s more conservative members from its liberal ones, and their combative opinions reflected very different views of the role of faith in public life, in contemporary society and in the founding of the Republic.

Justice Anthony M. Kennedy, writing for the majority, said that a town in upstate New York had not violated the Constitution by starting its public meetings with a prayer from a “chaplain of the month” who was almost always Christian and who sometimes used distinctly sectarian language. The prayers were ceremonial, Justice Kennedy wrote, and served to signal the solemnity of the occasion.

The ruling cleared the way for sectarian prayers before meetings of local governments around the nation with only the lightest judicial supervision.

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Related Coverage

• 
  
  Sidebar: For Justices, Free Speech Often Means ‘Speech I Agree With’MAY 5, 2014

The decision built on one from 1983 that allowed prayers at the start of legislative sessions. The two sides on Monday disagreed about whether town board meetings, which include not only lawmakers and spectators but also citizens seeking to do business with the government, are meaningfully different from legislative sessions.

Photo

Linda Stephens, left, with her co-plaintiff, Susan Galloway, spoke with the news media after oral arguments last year. Credit Saul Loeb/Agence France-Presse — Getty Images
Justice Kennedy said the prayers in both settings were “meant to lend gravity to the occasion and reflect values long part of the nation’s heritage.”

Justice Elena Kagan said in dissent that the town’s practices could not be reconciled “with the First Amendment’s promise that every citizen, irrespective of her religion, owns an equal share in her government.”

She said the important difference between the 1983 case and the new one was that “town meetings involve participation by ordinary citizens.”

She did not propose banning prayer, Justice Kagan said, but only requiring officials to take steps to ensure “that opening prayers are inclusive of different faiths, rather than always identified with a single religion.”

Town officials in Greece, N.Y., near Rochester, said members of all faiths, and atheists, were welcome to give the opening prayer. In practice, however, almost all of the chaplains were Christian. Some prayers were explicitly sectarian, with references, for instance, to “the saving sacrifice of Jesus Christ on the cross.”

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Featured Comment
Jennifer
New Jersey
I didn't think it was the purpose of the S.C.O.T.U.S. to protect 'the history and tradition of this country.' I thought it was their purpose to interpret the Constitution.

• 2103 Comments

Two town residents sued, saying the prayers ran afoul of the First Amendment’s prohibition of government establishment of religion. They said the prayers offended them and, in Justice Kennedy’s words, “made them feel excluded and disrespected.”

But Justice Kennedy said the relevant constitutional question was not whether they were offended. “Adults often encounter speech they find disagreeable,” he wrote. “Legislative bodies do not engage in impermissible coercion merely by exposing constituents to prayer they would rather not hear and in which they need not participate.”

Justice Kennedy said traditions starting with the first Congress supported the constitutionality of ceremonial prayers at the start of legislative sessions. Both Houses of Congress, he said, have appointed and paid for official chaplains almost without interruption ever since. Legislative prayer, he said, is “a practice that was accepted by the framers and has withstood the critical scrutiny of time and political change.”

In a long footnote, Justice Kagan disputed that assertion, saying some of the most prominent members of the founding generation — George Washington, Thomas Jefferson and James Madison — took pains to keep sectarian language away from public life. “The demand for neutrality among religions is not a product of 21st century ‘political correctness,’ ” she wrote, “but of the 18th century view.”

But Justice Kennedy said legislative prayers may have sectarian content and need not “be addressed only to a generic God.” He added that it would be perilous for courts to decide when prayers crossed a constitutional line and became impermissibly sectarian.

“To hold that invocations must be nonsectarian,” he wrote, “would force the legislatures that sponsor prayers and the courts that are asked to decide these cases to act as supervisors and censors of religious speech, a rule that would involve government in religious matters to a far greater degree than is the case under the town’s current practice of neither editing or approving prayers in advance nor criticizing their content after the fact.”

Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. joined all of Justice Kennedy’s opinion, and Justices Antonin Scalia and Clarence Thomas most of it.

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Recent Comments
Heathlan
10 hours ago
When Justice Kennedy said recently that “traditions starting with the first Congress supported the constitutionality of ceremonial prayer at...

Alfred Baker
10 hours ago
This was an unfortunate decision. It is a violation of our Constitutional right of freedom of religion. Also the right of freedom from...

MMP
10 hours ago
After the hysteria in so many comments, I went to the window to see if, yet once again, the sky was falling. As a non-praying, non-believer...

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Justice Kennedy did suggest that some prayers may be unacceptable if offered consistently, including ones that “denigrate nonbelievers or religious minorities, threaten damnation or preach conversion.” But without proof of “a pattern of prayers that over time denigrate, proselytize or betray an impermissible government purpose,” he wrote, “a challenge based solely on the content of a prayer will not likely establish a constitutional violation.”

Town officials had tried, he said, to recruit members of various faiths to offer prayers.

In dissent, Justice Kagan said they had not tried hard enough. “So month in and month out for over a decade,” she wrote, “prayers steeped in only one faith, addressed toward members of the public, commenced meetings to discuss local affairs and distribute government benefits.”

In 1983, in Marsh v. Chambers, the Supreme Court upheld the Nebraska Legislature’s practice of opening its legislative sessions with an invocation from a paid Presbyterian minister, saying that such ceremonies were “deeply embedded in the history and tradition of this country.”

Justice Kagan, joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor, said the case from Greece, N.Y., was different. The prayers at the town board meetings were often explicitly sectarian, they said, and residents were forced to listen to them in order to participate in government.

“No one can fairly read the prayers from Greece’s town meetings as anything other than explicitly Christian — constantly and exclusively so,” Justice Kagan wrote in her dissent in the case, Town of Greece v. Galloway, No. 12-696.

Moreover, she said, the clergy “put some residents to the unenviable choice of either pretending to pray like the majority or declining to join its communal activity, at the very moment of petitioning their elected leaders.”

In a concurrence with the majority opinion, Justice Alito called the dissent’s qualms “really quite niggling.”

That comment, Justice Kagan responded, “says all there is to say about the difference between our respective views.”

 

[Russell Street]

For prayer , I must advise any anti-religious nut to read the first sentence of the second paragraph of the Declaration of Independence. If you don't acknowledge a Creator, you aren't really acknowleging the inalienable rights attributed to him and the whole premise this nation was founded on falls apart.
Of course town meetings can have prayer!

 

[Grand Potentate]

http://www.networkworld.com/community/blog/worst-drm-now-infesting-physical-law-school-casebooks

Worst of DRM set to infest physical law school casebooks
Offer from AspenLaw: Pay $200 for a bound book … but you have to give it back
By Paul McNamara on Wed, 05/07/14 - 3:25pm.
Imagine shelling out $200 for a law school casebook only to learn at the end of the class that you don't actually own the book; that you are contractually obligated to return it to the publisher.

One publisher, AspenLaw, is not only attempting to foist this raw deal upon law professors and their students, it has the audacity to claim that the arrangement is an improvement over the old-fashioned way of selling and buying books. A number of professors, as well as the Electronic Frontier Foundation, beg to differ and are calling foul on AspenLaw.

Josh Blackman, an assistant professor of law at South Texas College of Law, writes on his blog:

I recently received a bizarre email from Aspen, the publisher of the Dukeminier/Krier/Alexander/Schill/Strahilevitz Property casebook I use. In short, the next edition of the book will be have to be returned at the end of the semester, and cannot be resold. This temporary usage comes with a permanent digital version. In effect, buying the textbook gives the student a license to use the book for a single class, as well as a digital version. And it's the same price! Of course, students are not going to actually return the book (BarBri offers a payment to incentivize that), but the book stores will not be able to legally resell it. This will instantly dry up the reused market for casebooks.

This has shades of Amazon Kindle or iTunes. You do not actually own the title, and cannot resell it, and only use it at the discretion of the publisher.

Here are a few excerpts from the email Blackman received from Aspen:

Thank you for adopting Dukeminier/Krier/Alexander/Schill/Strahilevitz, Property text. We are pleased to announce that this title will be part of our new Connected Casebook program. The Connected Casebook program is intended to provide students access to a greater wealth of learning tools than offered previously, with no change in price.

No change in price! That's the good news.

Under the Connected casebook program, your students will receive:

A new, bound version of the casebook, which can be marked-up, highlighted, and kept through the length of the course, but which must be returned to us at the conclusion of the class.

Not so good news.

And the attempt to put lipstick on the pig:

Lifetime access to CasebookConnect, a rich digital companion to the casebook, containing a full digital version of the casebook as well as selected proven learning accelerators, such as examples, explanations, and a collection of issue-spotting and hypothetical exercises.

James Grimmelmann, a law professor at the University of Maryland, says of this sweetener: "Aspen promises 'lifetime access' to the electronic versions, but we know from sad experience that gerbils have better life expectancy than DRM platforms."

Grimmelmann has launched a petition at Change.org headlined: "Let Students Keep Their Casebook."

Meanwhile, the Electronic Frontier Foundation was quick to criticize the Aspen offer:

EFF has been fighting for years for the principle that if you bought it, you own it. The first sale doctrine - the law that allows you to resell books and that protects libraries from claims of copyright infringement - is crucial to consumers. Unfortunately, first sale has been under threat in the digital realm, as copyright holders increasingly insist on saddling "sales" with onerous restrictions. You may think you are buying a product (like software, music and ebooks), but as far as they are concerned, you are just renting it, on their terms, whether you know it or not. ...

The 'Connected Casebook' program is a cynical ploy to destroy the secondhand market for books. ...

What is worse, Aspen's new program sets a dangerous precedent that flies in the face of long-standing first sale protections. Back in 1904, the Supreme Court ruled that a publisher could not prevent consumers from reselling legally purchased books. The Court reaffirmed this principle just last year in a case involving textbooks. Aspen appears to be hoping the some recent bad decisions involving first sale and software can be extended to the physical realm. We hope courts would not allow this. If Aspen's ploy is successful, it could threaten used bookstores and even libraries.

If the initial reaction is any indication, Aspen may need to make "Connected Casebook" a little less connected.​

 

[Grand Potentate]

http://www.vox.com/2014/5/9/5699960/this-court-decision-is-a-disaster-for-the-software-industry

The court that created the patent troll mess is screwing up copyright too

• by Timothy B. Lee
• 4 min read
• original

A few years ago, the database company Oracle sued Google, arguing that Google's Android operating system infringed the copyright of Oracle's Java technology. On Friday, a federal appeals court sided with Oracle in the long-running dispute.

The decision seems to reflect a fundamental lack of understanding of how software works. And it could create serious headaches for companies that want to make their software compatible with that of competitors.

Why did Oracle sue Google?
The lawsuit focuses on technical decisions Google made when it created the Android operating system.

"Not only do they not understand how computers work, they can't even read"

Google wanted people who wrote programs in the popular programming language Java to be able to re-use their code in Android apps. To do that, Google had to ensure that Java code written for other purposes ran exactly the same on Android. But negotiations with the company behind Java, Sun Microsystems (which was later acquired by Oracle), broke down, so Google decided to create its own version of Java from scratch.

For example, the Java language includes a function called "max," which lets a program compare two numbers and see which of them is larger. For Android to be compatible with Java, it needs to have its own version of the "max" function, and that function needs to be called "max," so programmers don't need to re-write their programs. It needs to be structured like the original "max" function, for example by taking in two numbers rather than, say, a list of numbers. Java has dozens of functions like this. For each of them, Google copied the name and other functional details, but wrote its own code to implement these functions.

Oracle sued, arguing that this was copyright infringement. It says that the list of Java functions constitutes a creative work, and that Google infringed Oracle's copyright when it included functions with the same names and structures.

How did the courts respond?
The trial court judge, William Alsup, sided with Google. Copyright only protects the creative aspects of a work, not its functional characteristics. Judge Alsup ruled that because the names of Java functions was essential to achieving interoperability, they were a functional characteristic rather than a creative aspect of Java, and using them wasn't copyright infringement.

But on Friday, the Federal Circuit Court of Appeals disagreed. The court was unimpressed with Google's argument that function names were functional characteristics not protected by copyright. In the Federal Circuit's view, the list of Java functions was just another kind of "code" that couldn't be copied without its creator's permission.

Does that make any sense?
The court's reasoning didn't impress James Grimmelmann, a copyright scholar at the University of Maryland. "Not only do they not understand how computers work, they can't even read," he says.

The court cited a seminal 1992 decision that allowed third party developers to create games for the Sega Genesis console. In that case, Sega made an argument a lot like Oracle's — that a game maker called Accolade infringed Sega's copyright in trying to create unauthorized Genesis games. But the Ninth Circuit Appeals Court sided with the video game maker, ruling that the functional characteristics of the Sega platform — such as the set of commands that allow a game run on the Genesis console — were not eligible for copyright protection.

Yet the Federal Circuit reached the opposite conclusion, holding that the list of commands that allow programs to invoke Java features was copyrightable expression.

Why is that a big deal?
There's a long tradition of computer programs being designed to be compatible with those of third parties. To do that, the developer of the new software needs to copy certain functional characteristics of the old software. And often, software companies have good reasons to do this even when the author of the old software objects.

The decision could make it easier for a company to sue a former employee

One good example is the open source project Samba. It was created to allow users of open source operating systems such as Linux share files with Windows users. To do that, the Samba programmers reverse-engineered and then duplicated the functionality of the Windows file-sharing system. They didn't copy any Microsoft software; they simply duplicated the sequence of commands needed to transfer files, read the contents of folders, and perform other functions in the Windows file-sharing system.

Samba has become hugely popular. Not only did Apple incorporate Samba into some versions of Mac OS X to allow Macs and PCs to communicate, many third-party companies also used Samba to build stand-alone file servers.

The Federal Circuit has shown a consistent bias in favor of patent holders.

The legality of projects like Samba has been widely accepted for more than two decades. But under the Federal Circuit's logic, Microsoft might be able to sue a Samba for copyright infringement. If the Federal Circuit's precedent isn't overturned, companies could become more reluctant to reverse-engineer competitors' products in order to make them compatible.

Grimmelmann also warns that the vague language of the decision could open the door to frivolous litigation. For example, the decision could make it easier for a company to sue a former employee if he goes to a new employer and writes software similar to the code he wrote at his old job. Even if the programmer writes the new code from scratch, courts could find that it's similar enough to the old code to trigger copyright liability.

What is the Federal Circuit and why did they hear this case?
The Federal Circuit is the court that hears appeals in all patent cases. Over the last three decades, it has shown a consistent bias in favor of patent holders, setting legal precedents that made the current patent troll problem possible.

Ordinarily, copyright cases in California would be heard by the US Court of Appeals for the Ninth Circuit. But because Oracle's fight with Google also includes some patent issues, the Federal Circuit gets jurisdiction.

And evidently, the Federal Circuit has a bias toward copyright holders to go with its pro-patent bias.

What happens now?
Grimmelmann believes Google is almost certain to appeal the ruling. The ruling could be re-heard by a broader panel of Federal Circuit judges or reviewed by the Supreme Court. The case is likely to attract broad interest in the software industry in the coming months.

If those appeals fail, Google still has another way to win. The case will go back down to Judge Alsup to consider the argument that Google's use of the Android function names is permitted by copyright's fair use doctrine. Alsup's ruling would then need to be appealed again, either by Google or by Oracle. So this case could drag on for many more years.

 

[Russell Street]

A


Although I am not unsympathetic to your cause the Declaration of Independence is all but ignored by everyone in Government since Lincoln.

Proof that you'll never get in trouble if you stick with the plan. Thanks for going off course Abe!

 

[Grand Potentate]

Thoughts on this? One the one hand, if you play a sport where 300lb individuals run into you at full speed, some of this has to have been foreseen. On the other, given what we know of the NFL's willingness to lie and cheat to their advantage at the expense of their players, could it really be a surprise that they would do something like withhold information on a broken limb?

http://www.theverge.com/2014/5/20/5735644/nfl-accused-of-misusing-drugs-to-cover-up-player-injuries

NFL accused of misusing painkillers to cover up serious player injuries
By Jacob Kastrenakes on May 20, 2014 04:50 pm


A group of retired football players filed suit against the NFL today, alleging that the league illegally provided them with narcotics and painkillers to mask their injuries and keep them on the field, leading to substance abuse issues and medical complications later in life. Eight players are named in the suit, including Jim McMahon and Hall of Famer Richard Dent, and 500 other former players are said to have signed on as well seeking class-action status. Their claims paint the NFL as a profit-hungry entity with little concern for its players, concealing their injuries without regard to their long-term medical impact.

"The NFL places a premium on return to play to the detriment of a player’s health."The NFL has not yet commented on the contents of the lawsuit. "We have not seen the lawsuit and our attorneys have not had an opportunity to review it," an NFL spokesperson tells The Verge. This is far from the first time it's become embroiled in a health controversy, however. Last August, it settled concussion-related lawsuits with over 4,500 players to the sum of $765 million, though it did not admit to wrongdoing.

One plaintiff in the new lawsuit alleges that the NFL kept him playing on a broken leg for an entire season and didn't reveal the injury to him for five years. Another plaintiff alleges taking upward of 100 Percocets each month given to him by league trainers. "I was provided uppers, downers, painkillers, you name it while in the NFL," J.D. Hill, a wide receiver during the ’70s and a plaintiff in the suit, tells the Associated Press in a statement. "I became addicted and turned to the streets after my career and was homeless. Never took a drug in my life, and I became a junkie in the NFL."

The suit seeks unspecified monetary compensation as well as medical monitoring services for the more than 500 players involved. With attention already on the NFL's alleged failures in protecting its players' health, the new lawsuit should assure that the subject stays in the spotlight. "With its priority on profit, the NFL places a premium on return to play to the detriment of a player’s health," the lawsuit reads. "The time has come for that to stop."

 

[Russell Street]

Athletes are not always the brightest people, so I wouldn't expect full vigilance from them on their own health. They trusted people that saw them as profitable chattel. Trust was abused. Go after the doctors first, then go up the ranks.
Not that I care. Live by crashing into people, die by crashing into people.

 

[Grand Potentate]

Athletes are not always the brightest people, so I wouldn't expect full vigilance from them on their own health. They trusted people that saw them as profitable chattel. Trust was abused. Go after the doctors first, then go up the ranks.
Not that I care. Live by crashing into people, die by crashing into people.

Also a PA Judge overturned the state's gay marriage ban. There's already a line at the local clerk's office for gay marriage licenses.

Again though, as it was very clearly pointed out during the concussion scandal, the NFL deliberately lied to and went out of its way to mislead the players. Given that knowledge, its really not hard to paint a mental picture of them telling the dr's to keep the players on the field at ANY OR ALL costs.

 

[Grand Potentate]

Read this and then let me know what you think:


http://deadspin.com/retired-stars-file-suit-alleging-nfl-doped-them-up-like-1579045996

http://deadspin.com/kyle-turley-says-he-had-teammates-who-took-30-vicodin-a-1579668252

 

[Allen Smithee]

I hope they all go bankrupt.

The players will, on their own. So turn the screws on the ownaz.

 

[Grand Potentate]

Liars and malingerers.

Who, the players or the NFL?

 

[Grand Potentate]

http://www.nytimes.com/2014/05/25/u...isnt-supreme-court-keeps-editing.html?src=twr

Final Word on U.S. Law Isn’t: Supreme Court Keeps Editing
By ADAM LIPTAKMAY 24, 2014



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WASHINGTON — The Supreme Court has been quietly revising its decisions years after they were issued, altering the law of the land without public notice. The revisions include “truly substantive changes in factual statements and legal reasoning,” said Richard J. Lazarus, a law professor at Harvard and the author of a new study examining the phenomenon.

The court can act quickly, as when Justice Antonin Scalia last month corrected an embarrassing error in a dissent in a case involving the Environmental Protection Agency.

But most changes are neither prompt nor publicized, and the court’s secretive editing process has led judges and law professors astray, causing them to rely on passages that were later scrubbed from the official record. The widening public access to online versions of the court’s decisions, some of which do not reflect the final wording, has made the longstanding problem more pronounced.

Unannounced changes have not reversed decisions outright, but they have withdrawn conclusions on significant points of law. They have also retreated from descriptions of common ground with other justices, as Justice Sandra Day O’Connor did in a major gay rights case.

Photo

Justice Antonin Scalia corrected his recent dissent in a case involving the Environmental Protection Agency. Credit Alex Wong/Getty Images
The larger point, said Jeffrey L. Fisher, a law professor at Stanford, is that Supreme Court decisions are parsed by judges and scholars with exceptional care. “In Supreme Court opinions, every word matters,” he said. “When they’re changing the wording of opinions, they’re basically rewriting the law.”

Supreme Court opinions are often produced under intense time pressure because of the court’s self-imposed deadline, which generally calls for the announcement of decisions in all cases argued during the term before the justices leave for their summer break. In this term, 29 of the 70 cases argued since October remain to be decided in the next five weeks or so.

The court does warn readers that early versions of its decisions, available at the courthouse and on the court’s website, are works in progress. A small-print notice says that “this opinion is subject to formal revision before publication,” and it asks readers to notify the court of “any typographical or other formal errors.”

But aside from announcing the abstract proposition that revisions are possible, the court almost never notes when a change has been made, much less specifies what it was. And many changes do not seem merely typographical or formal.

Four legal publishers are granted access to “change pages” that show all revisions. Those documents are not made public, and the court refused to provide copies to The New York Times.

The final and authoritative versions of decisions, some published five years after they were announced, do not, moreover, always fully supplant the original ones. Otherwise reliable Internet resources and even the court’s own website at times still post older versions.

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The Law of the Land, Edited
The Supreme Court has been quietly revising its decisions, sometimes years after they were issued.


OPEN Interactive Graphic
The only way the public can identify most changes is by painstaking comparison of early versions of decisions to ones published years later.

But there have been recent exceptions. Last month, Justice Scalia made a misstep in a dissent in a case involving the E.P.A. Under the heading “Plus Ça Change: E.P.A.’s Continuing Quest for Cost-Benefit Authority,” he criticized the agency for seeking such authority in a 2001 case. But he got its position backward. Worse, he was the author of the majority opinion in the 2001 decision.

Law professors pointed out the mistake, and Justice Scalia quickly altered his opinion, revising the text and substituting a bland heading: “Our Precedent.”

Even more recently, Justice Elena Kagan this month corrected her dissent in Town of Greece v. Galloway, modifying a categorical assertion about the location of the first community of American Jews.

The court did not draw attention to the changes, but they did not go unnoticed. Other revisions have. A sentence in a 2003 concurrence from Justice O’Connor in a gay rights decision, Lawrence v. Texas, has been deleted from the official record. She had said Justice Scalia “apparently agrees” that a Texas law making gay sex a crime could not be reconciled with the court’s equal protection principles.

Lower court judges debated the statement, and law professors used it in teaching the case. The statement continues to appear in Internet archives like Findlaw and Cornell Law School’s Legal Information Institute.

Photo

When Justice Sandra Day O’Connor deleted a reference to common ground in a gay-rights case, it went unnoticed. Credit T.J. Kirkpatrick/Getty Images
But it has vanished from the official version published in 2006 and from the one available on Lexis, a legal database.

“They deliberately make it hard for anyone to determine when changes are made, although they could easily make that information public,” Professor Lazarus wrote in the study, which will be published in The Harvard Law Review.

In revisions to two 2009 opinions, on school searches and race-conscious hiring, Justice Ruth Bader Ginsburg added phrases to clarify and broaden the points she had made. The changes appear in Lexis, but the court’s website still features the original versions.

The court also corrects factual errors, including, in recent years, ones about who was president in 1799, which senator made a particular statement and whether a defendant was convicted or merely indicted.

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Recent Comments
Cabbage Ron
2 hours ago
This was a very interesting article but the immediate question is: How do we fix this process that has gone awry? We can't just wring our...

PDW
3 hours ago
Consider these situations:1. The EPA issues regulations setting limits to greenhouse gas emissions released by power plants into the air.2....

Court Observer
3 hours ago
This practice is unconscionable in a republican form of government. And totally unnecessary. How can citizens be required "to know the...

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After-the-fact editing is not a new phenomenon. “The current court did not begin this practice, which finds its origins in the court’s earliest days and has extended to all justices over the years, liberal and conservative, but the court today can take the steps to correct it,” Professor Lazarus said. “Easy to do, and long overdue.”

The court seems to have been even more freewheeling in the past. Chief Justice Roger B. Taney added approximately 18 pages to his 1857 majority opinion in the Dred Scott decision after it was announced.

Photo

Justice Ruth Bader Ginsburg added phrases to two opinions in 2009. Credit Jacquelyn Martin/Associated Press
There are indications in former justices’ papers that the court knows that its editing practices are open to question.

By making a “considerable number of corrections and editorial changes in the court’s opinions after their announcement and prior to their publication in the United States Reports,” a court official wrote to Chief Justice Warren E. Burger in 1984, “we actually operate a system that is completely at odds with general publishing practices.”

In an internal memorandum in 1981, Justice Harry A. Blackmun offered reasons that the court operated “on a strange and ‘reverse’ basis, where the professional editing is done after initial public release.” Once an opinion has garnered the five votes needed to have it speak for the court, he said, the author wants to issue it immediately to guard against defections and “get ‘on the scoreboard.’ ”

There are four generations of opinions, and only the last is said to be final. So-called bench opinions, in booklet form, are available at the court when decisions are announced. Slip opinions are posted on the court’s website soon after. They are followed by preliminary softcover prints and then by the only official versions, which are published in hardcover volumes called United States Reports. The official versions of opinions from 2008 were published in 2013.

There are two exceptions to the general practice of quietly slipping changes into opinions. One happens only after the decisions are published in final form. The hardcover books sometimes contain a page of “errata.”

The court also issues an occasional order formally revising an opinion. The most recent notable example was in 2008, when the court learned that it had banned capital punishment for child rapists partly based on the faulty premise that no federal law allowed such executions. In denying a motion for rehearing, the court issued an order revising parts of the original decision to reflect the correct information.

But most changes can be found only by careful comparison or in the “change pages” that the court does not make public. Professor Lazarus obtained a year’s worth of the pages but was denied access to more. He said the court should consider posting them on its website.

“Of course the justices make mistakes,” he said. “And, of course, they can correct them. They just need to use a process that is more in keeping with the integrity and rigor of the process that produces the opinions in the first instance.”

 

[Russell Street]

How 1984. I just heard some guy on the radio making the point that judicial review is vastly over-used and abused and that people need to start scrutinizing the practice regardless of whether it is momentarily producing favorable results for them.

 

[Grand Potentate]

http://www.vox.com/2014/6/2/5772266/explaining-the-ncaa-v-obannon-college-athletics-case

Explaining the NCAA v. O'Bannon college athletics case
Updated by Kevin Trahan on June 2, 2014, 2:40 p.m. ET

Joe Robbins
The O'Bannon v. NCAA case, which could give college athletes the ability to profit off their likeness, will go to trial on June 9 in Oakland, California, and no matter the outcome, it will be the most important trial in the history of the National Collegiate Athletic Association.

The suit was filed by former UCLA basketball player Ed O'Bannon in July 2009. O'Bannon and the other plaintiffs (including now-retired basketball greats Bill Russell and Oscar Robertson) are suing the NCAA for licensing college athletes' likeness without their legal consent. The NCAA's current model — its version of amateurism — does not allow athletes to receive any form of compensation beyond the value of a scholarship, so none of the hundreds of millions of dollars of NCAA television revenue can go to the players.

"I don't think amateurism is going to be a useful word here."

The O'Bannon plaintiffs are seeking an injunction, which essentially means that if they win, the NCAA will no longer be allowed to keep players from gaining access to that revenue. The plaintiffs are asking for group licensing for athletes, meaning the athletes would transfer their rights to the school or the conference (or possibly a union), and everyone would get an equal cut, similar to how licensing works in professional leagues.

Initially, the plaintiffs were seeking a class action suit for both billions of dollars in damages, plus an injunction. However, Judge Claudia Wilken opted to certify only the injunction class, meaning that if O'Bannon wins, the NCAA would only be forced to change its rules in the future, not pay back athletes from the past. Still, for an organization that rarely changes how it operates, and for one that believe so strongly in the existence of amateurism, there is a lot at stake.

What are they arguing over?
The suit alleges that the NCAA is illegally profiting off players' likenesses in television broadcasts without the players validly transferring their broadcast rights.

In 2010, the suit was combined with one filed by former Arizona State and Nebraska quarterback Sam Keller, who sued the NCAA, Electronic Arts (EA) and the Collegiate Licensing Company (CLC) for illegally using players' likenesses in video games. However, the Keller plaintiffs settled with EA and the CLC for $40 million, and EA announced that it would no longer make college sports video games.

alleges that the NCAA is illegally profiting off players' likenesses in television broadcasts without the players validly transferring their broadcast rights

EA used to get around the licensing issues by not using player names. However, Keller argued that Arizona State's "QB #9" was clearly him, and had his same height, weight and hometown. The same goes for most players in the game, and it turns out real player names were actually hidden in the game.

The NCAA did not settle, and in an effort to delay the O'Bannon trial, it had hoped to keep the lawsuits combined, citing its Seventh Amendment right for facts in the two trials to not overlap. However, Judge Wilken disagreed that the Seventh Amendment was applicable, and she announced the O'Bannon trial would go on as scheduled on June 9, with the Keller trial set for March 2015. The NCAA has filed an emergency petition — the latest of several delay attempts — with the 9th U.S. Circuit Court of Appeals, though that court has denied a different delay attempt already.

Now that the video games portion of the suit is essentially out of the way, the main focus for the June 9 trial is television rights. The NCAA makes hundreds of millions of dollars in television revenue each year, while the schools and conferences have their own broadcast deals worth tens of millions per school in the major conferences. The plaintiffs are looking for the athletes to have a cut of that revenue, meaning there's a chance they could collectively receive a few hundred million dollars to divide up each year.

What are the NCAA's arguments?
The NCAA's arguments center around its desire to maintain its definition of amateurism. The organization says that the strict price cap placed on players' value is necessary to maintain competitive balance, and at trial, that's going to be its main responsibility — prove that keeping all of the television revenue away from its primary generators is necessary for the organization.

Traditionally, the NCAA has simply invoked the term "amateurism" as if that settles all arguments about player compensation. But Judge Wilken has already said that at trial, the NCAA must prove how its current version of amateurism, "actually contributes to the integration of education and athletics," as the organization claims. They cannot, in other words, just tautologically argue that not paying the players is necessary to preserve the principle that the players are unpaid. Perhaps the NCAA's biggest reality check came when Wilken said, "I don't think amateurism is going to be a useful word here."

The NCAA also had two major arguments dismissed by Wilken. The organization had tried to argue that it has a First Amendment right to negotiate television contracts of live sporting events. Fox and the Big Ten Network — a partnership between Fox and the Big Ten Conference — and a number of other television companies have supported this defense. However, Wilken ruled that the First Amendment does not apply in this situation because the athletes have not validly transferred their likeness to the schools for licensing. The NCAA has also tried to argue that networks pay for rights to the stadiums, not the players, when they broadcast games, and Wilken even "chuckled" at the implication.

The NCAA has long argued that it cannot pay revenue sport athletes (football and men's basketball) because those sports are used to subsidize other sports. However, Wilken said the NCAA cannot use that argument at trial, because it has not said why it can't change its revenue-sharing rules to accommodate those needs. Moreover, NCAA critics have rejected that argument, because schools funded those sports long before they received millions in television revenue.

What are the O'Bannon plaintiffs' arguments?
The arguments from the O'Bannon plaintiffs are a bit simpler, and basically, they're the opposite of all of the NCAA's arguments. The plaintiffs argue that the NCAA has broken antitrust law by colluding to not allow athletes to receive any compensation from broadcasts. They claim the athletes have not validly transferred their rights to the schools and the NCAA, and that they need to in order for their likeness to be used.

such a big industry cannot be treated like a struggling non-profit with unpaid labor

A lot of the criticism about the plaintiffs' stance has been focused on how it would be possible. Group licensing provides for a relatively simple solution, since it would be very difficult for athletes to license their likeness on their own. Complexity is part of the reason the damages portion of the suit was thrown out — it would simply be impossible to determine the worth of past players.

Wilken also rejected a portion of the plaintiffs' argument apart from the damages claim. The plaintiffs argued that players have a right to broadcast revenues because television broadcasts are commercial speech. However, Wilken said that is not a legitimate argument, because advertisements are separate from the games themselves, which are not solely commercial in their own right.

At trial, the O'Bannon plaintiffs are likely to focus on how much money the major conferences and the NCAA bring in, and how such a big industry cannot be treated like a struggling non-profit with unpaid labor.

What will the trial look like, and who could testify?
Because the plaintiffs were still seeking individual damages in addition to the injunction up until right before the filing deadline, the case looked like it would be decided by a jury. However, the individual damages claim was dropped at the last minute, so the case will now proceed as a bench trial decided by Judge Wilken.

While Wilken has been skeptical of both sides' arguments, this could play in the plaintiffs' favor, since it might be tough to explain all the complexities of the legal arguments to a jury. Wilken already understands the background of the case and should be able to make a more informed decision either way.

The NCAA was not happy with the plaintiffs' last-minute decision. According to USA Today, their lawyers wrote that they were, "surprised and troubled by the Plaintiffs' last minute and abrupt decision to attempt to avoid having a jury decide" the outcome of the case.

A recent court filing revealed the witness lists for both sides. It includes NCAA president Mark Emmert, a number of university athletic directors and commissioners, various economists and professors, the NCAA's former Director of Corporate Relationships, a current athlete who is the vice-chair of the Student Athlete Advisory Committee and former players.

What will happen to college sports if O'Bannon wins?
Everyone has different opinions on this one. What we know for sure is that the players will get some television revenue — the plaintiffs are asking for up to half — and they will all get an equal cut through group licensing. The implications on college sports are debatable. Some firmly side with the NCAA, despite Judge Wilken's objection, on the opinion that non-revenue sports will disappear, as schools try to replace lost television revenue with the funding for those sports.

The NCAA has also argued that since many of its top athletic departments lose money, it won't have enough money to pay out any television money, and thus some people — ncluding Big Ten commissioner Jim Delany and former Northwestern president Henry Bienen — have threatened that schools could go to the NCAA Division III model and not offer athletic scholarships if amateurism is threatened in any way. However, that claim has been discredited by basic economics, and even Delany admitted he was bluffing.

The most likely scenario is that schools will be forced to cut down on excessive facilities spending — no more waterfalls in locker rooms — and skyrocketing coaches pay. Non-revenue sport teams could also play more regional schedules to help balance the budget.

What other legal issues are facing the NCAA?
The NCAA has become a magnet for lawsuits in the past few years, and the others could be just as damaging as the O'Bannon case. A suit filed by notorious antitrust lawyer Jeffrey Kessler is attacking the NCAA and the five major conferences — the ACC, Big 12, Big Ten, Pac-12 and SEC — for colluding to fix athletes' compensation at the price of a scholarship. Kessler claims that there are no viable alternatives for athletes hoping to play sports after high school, and thus, this price-fixing is illegal.

If he wins, Kessler's suit could open up the ability for players to market themselves without restriction, meaning they could do ads and get sponsorships. At the very least, it could cause the formation of a players union that would negotiate a collective bargaining agreement with the NCAA.

There are a number of smaller suits, as well. The NCAA is facing a group of consolidated concussion lawsuits, as well as an antitrust suit filed by former Florida football star Sharrif Floyd that includes women's basketball players and the smaller Football Bowl Subdivision conferences, and argues the NCAA schools have illegally fixed compensation below the full cost of attending universities.

The Northwestern unionization case also looms large over the NCAA. While the organization is not a party to that case, it still threatens the ideal that athletes are students first, and it could create real competitive balance issues if some schools can bargain and others cannot, since bargaining power for athletes at public schools will be decided on a state-by-state basis.

Will this end in Oakland?
There's almost no chance of that. The NCAA is sure to appeal, as its chief legal officer Donald Remy announced.

"We're prepared to take this all the way to the Supreme Court if we have to," Remy told USA Today. "We are not prepared to compromise on the case."

The NCAA has vowed to change, promising more autonomy for larger schools to provide benefits for athletes. However, the organization still won't budge on amateurism, and that's the deal-breaker. The O'Bannon trial will give us the first legal opinion on whether the word really is "useful" beyond the NCAA's rhetoric.

 

[Allen Smithee]

NCAA wants the perks of commercialism but claims amateur status when people want money. Fuck them. Screw the people whose best years are spent bouncing balls too. Howsabout the NCAA just gets stricken down as an illegal monopoly. And the NFL/MLB/PGA/NHL and so on?

 

[Grand Potentate]

http://www.vox.com/2014/6/3/5775516/the-supreme-court-could-cut-union-membership-in-half

The Supreme Court could cut union membership in half

• by Matthew Yglesias
• 4 min read
• original

Scott Olson/Getty
The Supreme Court is expected to rule any day now on the case of Harris v Quinn, a somewhat obscure tale of a mother's reimbursement payment for providing her disabled son with home-based health care that's exploded into a potential political earthquake that potentially holds the fate of public sector labor unions in the balance.

Here's what you need to know to get caught up to speed before the court acts.

What does the plaintiff want?
it is not in the individual interest of any particular worker to be paying union dues

Nominally the case is about labor union representation of home health care workers in Illinois who work with disabled patients. The plaintiff, Pam Harris, is the mother of Josh Harris who has Rubinstein-Taybi Syndrome, a severe illness that leaves him in need of constant care. Illinois provides a modest financial benefit for people in need to hire home-based health care on a contract basis. Like many recipients of disability benefits in Illinois, Harris has contracted with a family member — in this case his mother, Pam — to be his caregiver.

Pam Harris is also, like everyone else working on a home health care benefit in Illinois, represented for collective bargaining purposes by the SEIU, which deducts either members' dues or a representation fee from the paychecks of the workers it represents. Harris is asking the Supreme Court to rule that it's unconstitutional for Illinois to make her pay the union representation fee. But standing behind Harris is the National Right to Work Legal Defense Foundation, backed by the usual array of conservative moneybags types, including the Bradleys, the Waltons, and Charles Koch.

What are the stakes?
Broadly speaking, the stakes are whether or not labor unions will continue to be viable in the United States public sector. Collective bargaining is, by definition, a collective action problem. To the extent that SEIU does useful work on behalf of Illinois home health care workers, all Illinois home health care workers benefit. No matter how beneficial the existence of a strong labor union may be for the workers who are members, it is not in the individual interest of any particular worker to be paying union dues.

That's why successful labor unions typically fight for arrangements where all workers who benefit from the union's activity must pay a representation fee. Absent such a mandatory fee, the tendency is for a union to unravel. Even when workers collectively prefer a strong union, it can't stay if everyone is allowed to decide à la carte whether or not to pay. In so-called right to work states these kind of arrangements are illegal, and labor unions are generally very weak.

A third option is to split the baby and hold that the Abood precedent is still good law but does not apply in this case

Harris's legal argument could essentially turn all states into right to work states for the purposes of the public employees. And it could even set a precedent for a constitutional ruling extending the right to work principle into the private sector.

What's Harris' argument?
Harris and her supporters view her as being forced to financial support a political cause she does not endorse. They argue that since the employer a public sector union bargains with is a government, the "bargaining" that public sector unions undertake is really a form of political activism. Therefore representation fees represent a kind of mandatory political activism. Mandatory political activism violates the First Amendment.

By one of those happy coincidences that tend to arise in American constitutional law, the groups backing Harris' legal argument also think strong labor unions are bad economic policy while her opponents think the reverse.

What options does the Court have?
One option, preferred by liberals, would be to simply reaffirm the precedent set in Abood v. Detroit Board of Education holding that public sector collective bargaining is fine, and public sector unions can have agency fees.

Another option, preferred by conservative activists, would be to overturn Abood and immediately institute a nationwide right-to-work policy for public sector unions.

A third option is to split the baby and hold that the Abood precedent is still good law but does not apply in this case. The argument here would be that Illinois health care workers are not really collective bargaining at all. They are individual contractors employed by specific individuals merely receiving reimbursement rates set by state law. That means that SEIU efforts to raise reimbursement rates are political activism that's different from the kind of collective bargaining engaged in by the Detroit public school teachers in the Abood case. This would set the stage for lots of future litigation around different public sector arrangements as to whether they should be covered by Harris or Abood precedents.

A fourth option would be to just go hog-wild and find that any kind of legally sanction mandatory union representation fee is a violation of first amendment rights to free association. This would kneecap private sector unions as well.

How big a deal would a pro-Harris ruling be?
On one level, it would be a huge deal. Unionization rates in the United States are much higher in the public sector than in the private sector, and the biggest and most influential labor unions in the country tend to either represent public workers almost exclusively (AFSCME or AFT) or else, like SEIU, represent many public workers alongside private ones. Even quintessentially private sector unions such as the United Auto Workers are finding many of their growth opportunities in representing public sector workers such as state university graduate teaching assistants.

On another level, even a Harris loss would not exactly alter the bleak big picture landscape for the American labor movement. Republican Party politicians in traditionally union-friendly states such as Wisconsin and Michigan have demonstrated an eagerness to roll back union-friendly rules whenever they get a chance, whereas Democratic Party politicians in right-to-work states like Virginia hesitate to press for changes. Obviously a loss in the Harris case would greatly accelerate the prevailing trend, but it's already the prevailing trend.

Is public sector collective bargaining good or bad?
Needless to say, people disagree! Here's Josh Barro, then of the Manhattan Institute, making the case for tough anti-union measures in state government. Here's Nelson Lichtenstein making the case that the overall success of progressive politics depends on strong unions, including in the public sector.

A more nuanced argument comes from sociologist Jake Rosenfeld, author of the recent book What Unions No Longer Do. Rosenfeld's book is broadly pro-union, finding that the decline of labor unions is a major driver of rising inequality and wage stagnation among other ills. Rosenfeld argues that public sector unions don't really work to curb these trends, because public sector workers tend to be better-educated and higher-paid than the average American regardless of union status.

But of course unions play other roles besides their direct one in altering the wage structure — notably they intervene in politics, typically on behalf of progressive causes. That political role of unions is key to the logic of Harris' legal argument and it's also where the impact may be felt the strongest if she prevails.

 

[Russell Street]

1. vox.com? How many websites does that guy have?
2. as above. Unions exist to protect workers from unscrupulous profit-minded business owners. The government does not make a profit and is allocated money by voters. Nothing more is needed. Any bargaining done by a public union is against the taxpayer.
3. If you are paid by taxes, don't pretend that you pay taxes you mooches. You fuckers shouldn't even be allowed to vote.

 

[Grand Potentate]

Did either of you actually read about the case?

 

[Russell Street]

ah, you caught me. now i did
1. unions are a monopoly. WTF? how about competing unions within a trade to drive down membership costs.
2. yeah, those effers take your money and give it to Democrats.
3. How about unions use volunteers? What are their costs? Anything legitimate or is it all graft and lobbying?
4. "overall success of progressive politics depends on strong unions" yeah, extorting money and sending it to Democrats. See#2

How's this? Unions are voluntary and negotiate for their members only. Non-members are free agents. That's called free market. Oh, the uncompetitive worthless unions won't like that!

 

[Grand Potentate]

I'm placing this here just to add a little levity:

http://www.vocativ.com/underworld/c...en-adult-size-genitals/?ModPagespeed=noscript

Boy Sentenced to Jail Because of Large Penis
A Russian court tried a 13-year-old as an adult based on the size of his genitals
Author: Luke Malone
Posted: 06/04/14 12:36 EDT
A Russian court ruled that a Ukrainian boy who claims he’s 13 be tried as an adult based on the size of his penis, according to The Moscow Times. Tomas, whose last name was not released to protect his identity, was arrested on suspicion of stealing a cellphone in March—an accusation he denies.

The teen had moved to Moscow that same month to live with his aunt. His family claims he was 12 at the time of the arrest and has produced Ukrainian documentation that he used to cross the Russian border as proof. But authorities think he is older and ordered a medical examination to determine his real age. Based on the size of his penis and teeth, prison doctors told the court they believe he is actually 16 or 17.

It’s an important distinction. Individuals 16 and over can be tried as adults in Russia, and that age comes down to 14 in the case of more serious crimes like rape and murder. As a result, Tomas has since been sentenced as an adult and was sent to jail. His family has challenged the ruling, and the regional prison service has agreed to review his case.

 

[Russell Street]

I'm sure the adult prisoners will be thrilled.
Wait, how much does the dong grow from age 12 to 17? I thought about 13 and that stuff was done. Did I miss out on four years of growth?

 

[Allen Smithee]

I doubt this medical age verification would work the other way, like if I said that the girl could not be underaged based on her full womanly breasts.

 

[Grand Potentate]

This one's for you JimmyRustler

http://www.vox.com/2014/6/4/5777314/could-bitcoin-start-making-divorces-messier

Divorce lawyers worry about assets being hidden in bitcoins
Updated by Danielle Kurtzleben on June 4, 2014, 12:10 p.m. ET @titonka danielle@vox.com



The Financial Times reports that lawyers fear parties in divorce settlements may start hiding money in bitcoins. This isn't an idle concern: The question of how to hide assets in bitcoin has been popping up in bitcoin discussion forums, the FT writes. In a December thread on forum Bitcoin Talk, for example, users debated how difficult it would be for one man's wife to get half of his bitcoins in a divorce.

"Her lawyer is arguing he must have much more money than he claims to," wrote the commenter who started the thread. "Does the court have right of access to his bitcoin wallet?"

Spouses have long tried to hide assets in divorces; bitcoin could just be a new frontier, says one attorney. "Husbands are becoming more and more creative in terms of what they do to reduce their wealth and the courts are struggling to catch up. It's just like when the internet started and it was difficult for courts to catch up," said Frank Arndt, an attorney at one UK law firm.

Bitcoin could be a good hiding place for assets in part because it's difficult to trace currency ownership to particular individuals. The currency could also allow a spouse to quickly shift assets to someplace courts can't reach.

bitcoin could make it easier to shift assets to other jurisdictions where it's tougher for courts to reach them


"One of the appealing things about bitcoinis its ability to quickly transfer funds to a destination out of US jurisdiction. That makes it difficult to retrieve those funds. A friend or other institution holding the funds outside the country would be harder to get the money back from," wrote Coindesk's Danny Bradbury.

The legal system is already trying to figure out how to respond. Courts in California have asked for bitcoin disclosures in some cases, the FT reports.

Thus far, much of the talk surrounding Bitcoins and divorce seems to be hypothetical, and the FT story largely focuses on the UK. However, the discussion points to a much broader issue: the uncharted legal territory surrounding cryptocurrencies. This could extend far beyond the boundaries of divorces and into other family matters, as one attorney told Coindesk.

"We are going to have family law issues that crop up. We're going to have estate issues, and people dying with substantial amounts of bitcoins. The question becomes, are they disposed of through the estate, or in another manner?"

 

[Grand Potentate]

Big doings in the Supreme Court today:

9-0 in favor of warrants being necessary for cell phone searches.

6-3 in favor of Aereo being an illegal rebroadcast of copyrighted material.