The next time someone tells you that they prefer the judicial “conservatism” or “modesty” of Justices Roberts, Scalia, Thomas and Alito, because it limits the discretion of unelected judges, please kindly them refer to these justices’ recent opinion in Herring v. United States, No. 07-513, decided today. Because they’re wrong.
The Exclusionary Rule is a well founded doctrine of constitutional law. Generally, the Exclusionary Rule provides that any evidence obtained as a result of a 4th Amendment violation is inadmissable at trial. End of discussion. No judicial analysis or interpretation required. (Well…, I’m simplifying this a bit.) The Rule serves as the only deterrent against governmental violation of the 4th Amendment rights. Without the Exclusionary Rule, evidence obtained as a result of a unconstitutional search or seizure could be admitted against you.
In Herring, the conservative wing plus Justice Kennedy determined that the Exclusionary Rule is not absolute. Rather, judges must engage in a fact-intensive, case-by-case balancing test. Under the Herring decision,
To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.
The effect of this open-ended standard is, of course, to subject the Exclusionary Rule to substantial judicial discretion and personal bias– the exact opposite of what the conservative wing purports to espouse.
Basically, the bill allows the DOJ to sue copyright infringers on behalf of the content owners (i.e. movie studios and record companies). JttM Legal Experts, is there any precedent for this? Seems crazy/scary to me.
If you haven’t visited www.ted.com, now is the time. The site offers tons of “inspired talks by the world’s greatest thinkers and doers.”
Here’s their quick self-summary:
“TED stands for Technology, Entertainment, Design. It started out in 1984 as a conference bringing together people from those three worlds. Since then its scope has become ever broader. The annual conference now brings together the world’s most fascinating thinkers and doers, who are challenged to give the talk of their lives (in 18 minutes). This site makes the best talks and performances from TED available to the public, for free. More than 200 talks from our archive are now available, with more added each week.”
This one, is far from the most interesting, but there’s an incredibly amazing octopus at the end that I think everyone needs to see.
least skip to the end where an octopus will blow you away.
Huge congratulations to one of my firm’s partners, Harry Korrell, who today prevailed in one of the two Supreme Court segregation cases. And though the Seattle’s “integration” plan was held to be unconstitutional by the Court, Justice Kennedy’s unprincipled “middle-of-the-road” concurrence looks like it’ll pollute the law for lower courts to apply. As Slate nicely put it,
Justice Kennedy still wants Americans to be able to address racial imbalances; he just doesn’t want them to do so using systems that expressly account for race.
I hope I can post more about these cases this weekend, but for now, I’ll note how PICS goes down as another data point for doctrinal indeterminacy: 9 (presumably brilliant) justices can read Brown v. Board and believe that their starkly opposite opinions today are “faithful to [it's] heritage.” I’m sorry to beat a dead horse here, but there’s no “law” governing goverment race preferences– just social and political value judgments disguised in the language of law.
Using html form fields to compose blog posts is often much more convenient than opening up a word-processor or blog posting application, but html text-areas (unless you are using something fancy like gmail) lack nice features like spell check. There are, however, two or three things you can do that make composing in web pages as good as or better than an external program.
- First, if you haven’t already, upgrade to the latest version of Firefox. Firefox 2 has a built in spell checker that will have you wondering what you’ll do with those extra minutes each day you spent watching MS Word load up.
- The second feature you may be missing is easy saving. This one is a bit harder to replicate. There is an extension called scribe that saved form data as a local file through a right-click (or control click for those of you whom Steve Jobs has decided don’t need right clicking) menu or ctrl-s (which is great for those of us who have an itchy ctrl-s finger whenever we pause while typing). Unfortunately this extension doesn’t work with the newer versions of FF. Until a new version is made there is an extension called Form Saver that is simpler, and saves the form data in a bookmarklet, but doesn’t support ctrl-s. At the moment I am using the ctrl-a (select all) ctrl-c (copy to the clipboard) save as draft technique. This isn’t great, but it covers my ass for when the magic of technology fails to safely insert my carefully crafted prose into a database field somewhere.
- Now for the good part. the first two will get you what you liked about the word processor, minus the load time, etc. This last one is why I said “Turn Firefox into a blog editor” instead of “…into a word processor approximation.” The folks at lifehacker made a blogging hot key utility that makes formating text in html approximately one bazillion times easier. I won’t go into all the details of what it does, but basically it is a little program that sits in your system tray and works a little key replacement magic. for instance, when you type ‘em’ and then hit enter it replaces it with ‘<em></em>’ with the cursor placed in the middle. same for ‘ul’, ‘li’, ’str’, etc. etc. Even better: if you copy an internet address and type ‘hre’ and hit enter ‘<a href=”Your Pasted Address”></a>’ will appear with your cursor between the tags, ready for you to type the link text. ‘bk’ becomes ‘<blockquote>Your Pasted Text</blockquote>’, etc. This little app really encourages me to add links, images, lists, and other html goodness to blog posts.
Finally, for you mac folks, here are some builds of FF2 that are optimized for macs. I have no idea if they help, but if you are using Safari, and want to get in on some of this goodness (and the loads of other goodness Firefox has to offer), it might be worth a shot
Optimized Firefox 2.0 for G4, G5, and Intel Macs
Slate has an article entitled “Does YouTube Really Have Legal Problems?” that question’s the conventional wisdom that YouTube will be nothing but a legal quagmire for Google.
It discusses about how YouTube may have protection under the “Online Copyright Liability Limitation Act, which became Title II of the Digital Millennium Copyright Act of 1998 (§512 of the Copyright Code).” While Napster and Grokster were shown to be intentionally encouraging copyright violation, YouTube may only need to remove content when asked to do so by the copyright holder (something it has already shown a willingness to do).
The real saving grace may be that the copyright holders (i.e. hollywood studios) have reason to like this system more than massive, shut the whole thing down lawsuits:
What’s really interesting is that the content industry actually likes §512 more than anyone will admit. The notice-and-takedown system gives content owners the twin advantages of exposure and control. When stuff is on YouTube, the owners have an option. They can leave it posted there, if they want people to see it, and build buzz. But they can also snap their fingers and bring it all down. And for someone who is juggling her desire for publicity against her need for control, that’s ultimately a nice arrangement.
I’m sorry Ben — I never signed the net neutrality petition you sent out a month or so back. I meant to. But I’m a lazy bastard. And I almost never sign petitions unless they’re for legalizing marijuana. I read the following Reason editorials (here then here) hoping they would convince me that I was right not to have signed it. I like Reason. It is the Slate of the right. It is conservative, but for different reasons than most conservatives — ultimately it is contrarian.
I came away not wholly convinced by the articles by any means. But now I’m more neutral on net neutrality than anything else. The point of the articles can be summed up by the following quotes:
The sort of preemptive regulation at the heart of proposed legislation rarely works out well, especially in fields where technological change is the rule and not the exception.
Even in areas currently served by a DSL/cable broadband duopoly, consumers accustomed to a smorgasbord of online options will check to some extent the ability of ISPs to restrict user access to innovative content and applications.
As professor Lawrence Lessig observes in his Congressional testimony, nobody objects to “consumer tiering,” wherein someone who only needs to send a few e-mails and occasionally read Reason Online buys a cheap dialup package, while those who want their Net full of bells and whistles spring for high-speed cable. And, for that matter, nobody seems to see a problem with an equally common kind of content tiering, where the consumer pays one price for Internet access, and another for high-quality video programming, perhaps even coming in over the same pipes. Mandatory net-neutrality removes from the basket of options another way of mixing funding, where the user pays for most of his Internet access at one speed, but content providers subsidize a faster pipe for their own bandwidth-intensive content. That kind of funding mix could help make existing broadband cheaper for those who remain on the wrong side of the “digital divide,” or it could help make the business models of alternative wireless providers viable faster. But we won’t know if we forbid experimentation now.
…in some cases, “discrimination” may allow ISPs to add faster lanes than they currently offer, at least for content companies willing to subsidize them.
Hasty regulation that responds to hypothetical abuses may also prevent us from discovering benefits we haven’t yet hypothesized.
I wonder what you lawyers and internet professionals think of these arguments (essentially that preemptive regulation is wrong in principle and may end up stifling innovation in practice). These anti-”Net Neutrality” arguments seem to be getting more popular as we approach the Senate vote. See CNet (which thinks Ted Stevens is a Senator from Arkansas), Washington Post, and the Tribune.
6 weeks ago today I posted about a bit of Good News for People Who Love Bad News for Patent Trolls. In that post I said there were “two main problems [with our patent system]: 1. patent holders can prevent…the production of technology which they have no intention of ever producing themselves, and 2. the things they’ve patented are often vague ideas…nobody (the patent holders included) has any idea how to build.” I did not discuss a third problem: Sometimes patent firms are able to enforce patents on ideas that anybody with a basic training in the field would see as obvious (e.g. the now famous - or infamous - Amazon.com One Click Shopping case).
Now The Supreme Court is set to hear a case that could provide those of us who like bad news for patent trolls a little more good news. The article explains the case more fully, but the gist of it is that if the court rules in favor of some guys that make gas pedals, and against some guys that hold patents on, but don’t actually make, gas pedals, then it will be harder to get and hold patents for ‘inventions’ that are obvious.
For anyone who’s looked at hundreds of law firm websites, and even for anyone who hasn’t, this satirical site for the prestigious Anonymous Law Firm LLP is hilarious. (H.T. WSJ Law Blog). My favorite include the attorney profile for Jennifer Kim and the page on the Summer Associate Program.
[Today, movers came, took 99% of my possesions, packed them, and loaded them onto a truck destined to my new home. Divorced from my daily possessions, for the next couple of weeks, I'm living a spartan life-- no bed, no TV, no radio, no cookware, and few clothes. Bored, lying in my sleeping bag in a corner of my now-empty bedroom floor (unable to watch the playoffs), methinks it's a good time to knock out the second of my hopefully three part series on academic notes.]
During spring break this semester, I recieved some great news. A paper I had written the semester before won the Elliot A. Spoon National Business Law Writing Competition sponsored by the Journal of Business and Securities Law, a relatively new scholarly publication of the Michigan State College of Law.
This was great news for two reasons. First, I got $1000 as the author of the winning paper. Second, and more importantly for me, my paper was to be published in the Spring 2006 volume of the Journal of Business and Securities Law. That volume was published this month and is available free online here. A direct link to my article, admittedly pretentiously titled “INDETERMINACY AND SELF-ENFORCEMENT: A DEFENSE OF DELAWARE’S APPROACH TO DIRECTOR INDEPENDENCE IN DERIVATIVE LITIGATION,” can be found here.
Although this is not my first publication, it is certainly my favorite because it marries my favorite legal subject area, corporate governance, with my favorite approach to legal analysis, critical legal theory (a topic that I’ve previously blogged about here and here). Like my other article, I wouldn’t recommend reading this one unless you’re (1) interested in corporate governance law or (2) doctrinal indeterminacy, or (3) if you’re irresitably curious about what I’ve been up to this last year of school. Even I haven’t read the final, published draft yet; but as soon as I recieve my bound copy, I will.
In order to silence evil conspiracy theorists Judicial Watch, a conservative watchdog group, sued the government for release of the surveilance video that would once and for all prove that a big, giant, jumbo jet did in fact hit the pentagon. The BBC NEWS Piece on it doesn’t discuss the images much, focusing more on the political, judicial, and emotional impact of the release. Nevertheless if you watch the video you can see very clearly and without a shadow of a doubt that …. something did in fact hit the pentagon. And caused a big explosion.
Was it a jumbo jet? I wouldn’t say it’s impossible.
Is there anything in the video that is recognisable as a jumbo jet? No.
Does the UFO seem to be too small and/or too fast to be captured by the video? Yes.
Does that sound like a big jumbo jet? Not really.
I can’t wait to see what the blogosphere and/or media do with this.
A while back, Mohsen, Ben, and I were talking about how our patent system is in sad shape. There seem to be two main problems: 1. patent holders can prevent or make unecesarily expensive the production of technology which they have no intention of ever producing themselves, and 2. the things they’ve patented are often vague ideas about how some software should be set up or some device nobody (the patent holders included) has any idea how to build.
Slashdot posted an article from Forbes that could help with the first problem. Patent Trolls have often been able to demand huge fees from the people actually using the “technology” because they had in their hands the ultimate trump card: If you don’t pay we will get a permanent injunction and shut you down. According to the article, the Supreme Court has ruled that the lower courts don’t have to issue an injunction whenever the patent holder asks for it. Instead, they can rule that, in cases where the holder is not using the patent, financial compensation is sufficient. Without that Trump card, these compensations are more likely to be in line with what the patent is actually worth.
The closest I’ll probably ever get to arguing before the Supreme Court is running up the stairs of its regal frontside (which, of course, is not very close at all). Evin took this picture of me as I was running up to pose in front of the building. I like it better than the picture I actually posed for, though. If you look closely, you can identify my characteristic goofy gait.
Probably the most important thing I learned in law school (I can say “learned” in the past tense as I’m now only 50 days from graduation) is that most legal texts (especially the Constitution) are too indeterminate to constrain judicial discretion. (My Competing Fatwas post illustrated this point.)
And probably the second most important thing I learned in law school, a corollary to the first, is that because legal texts often serve as no constraint on judicial discretion, any results a judge asserts as justified by the application of law are no more than that judge’s own personal preferences just dressed up, real fancy, in the guise of law. And any judge who claims that he is simply mechanically and dispassionately applying the law to the facts of a case is either, at best, lying to himself or, at worst, lying to you.
Consider Justice Scalia, whose judicial philosophy can be roughly reduced to the following: (1) Most legal text (including constitutinal text) is sufficiently determinate to constrain the discretion of judges and (2) where the text is not sufficiently determinate, applying the original intent of that text’s drafters (Madison, et al. for the Constitution) to interpret the text resolves this indeterminacy, and thus serves as a second constraint of judicial discretion.
Of course, Scalia’s “originalism” is just another real fancy guise with which to dress up personal perferences as “law”. Proof? Read the rest of this entry »
Probably the only person with a worse public relations operation than Dick Cheney is Antonin Scalia. In a speech on Monday, he described anyone who disagreed with his method of constitutional interpretation, originalism, as an “idiot.” “But you would have to be an idiot to believe that,” Scalia said. “The Constitution is not a living organism, it is a legal document. It says something and doesn’t say other things.”
(BTW, I first saw this on the excellent WSJ law blog, which is now part of my daily routine. If you’re interested in the intersection of law and business, I highly recommend it.)
I’m pretty interested in intelectual property, and how digital media is changing / will change our notions theirof. Despite this interest, I know almost nothing about copyright law beyond what would be considered ‘common knowlege’. This article was helpful, and showed me that, as is often the case, my ‘common knowlege’ understanding is only about half true.
The article was originally written in the context of posting stuff to usenet, but is general enough to be interesting anyway.
According to a recent study by the New York Times, the Supreme Court’s oral arguments are getting funnier. More specifically, the number of times a Justice’s remarks have evoked laughter has increased. The Times study found “the average number of justice-generated laughs per argument rising to 2.9 from 2.6 the previous term.”
Some other interesting data:
- Justice Breyer seems to be the funniest Justice, having thusfar evoked 28 laughs in the present term.
- Justice Scalia is the second funniest Justice, with 25 laughs in the present term.
- Justice Thomas, unsurprisingly, is the least funny Justice. He rarely speaks during oral arguments and, when he does, his comments have never given rise to laughter.
Of course, what is funny to lawyers is not necessarily funny for others. Consider Chief Justice Roberts’ knee-slapper, “The relationship between the states and the federal government has changed a little since Gibbons v. Ogden.” For this understatement, Roberts got a laugh.