Apparently, there is a large debate on the blogosphere that says that we are all hypocrites for charging Michael Vick with a crime while we are eating burgers. How, these folks argue, can you say that Michael Vick is guilty of cruelty to animals when the cruelty in reducing cows and chickens to table-fare is ignored?
This is one aspect of the law that is becoming more than just annoying. Our society chooses to battle each and every personal decision (right down to what we eat) as though there should be a law that embodies the proper decision. I like my dog, and don't want anyone to torture her. I like fried chicken, and understand that my body needs protein. From my point of view, that's the way things were when our Constitution was written (dogs were domestic, and chickens were game). So, the only honest way to change this is to get State legislators to make a decision that humans shouldn't be eating animals. I've got some degree of confidence that I will outlive that argument. But, what a cruel waste of society's time and resources.
Friday, September 14, 2007
Federal Judges Speak about Jury Trials
Judge Pat Wald, former Chief Judge of the D.C. Circuit says: "The jurisprudence of the federal court is the jurisprudence of summary judgment...Litigation management is our primary job, and even with fewer trials, there is a lot of litigation to be managed."
Judge William Young (D.C. Massachusetts): Once divorced from daily interaction with jurors, our written opinons subtly mock the very idea that democratic institutions might be made to serve the interests of justice. This leads us to prefer knowledge over hope, and the jury system is, if nothing else, our country's finest expression of hope." It is interesting that Judge Young makes the comment that our legal system prefers "knowledge over hope". Others have described the phenomenom that the high courts prefer cases that present small and discrete fact scenarios that decide small and discrete legal principles. A case that presents an interesting law review puzzle is preferred over the case that presents an opportunity to do justice. Dr. Gregory House would be proud.
For my own point of view, I am skeptical of the jury system as our finest expression of hope, but I do think that jury trials have been so marginalized that they are no longer considered an important expression of justice, or democracy. They are, now, aberrant events; a novelty to be reported, but not necessarily respected. Whether a jury trial is an expression of hope or not, the people's decisions - so vital that all 50 states supposedly guarantee the right to trial by jury -- are virtually ignored. That is a shameful way to run a government.
Judge William Young (D.C. Massachusetts): Once divorced from daily interaction with jurors, our written opinons subtly mock the very idea that democratic institutions might be made to serve the interests of justice. This leads us to prefer knowledge over hope, and the jury system is, if nothing else, our country's finest expression of hope." It is interesting that Judge Young makes the comment that our legal system prefers "knowledge over hope". Others have described the phenomenom that the high courts prefer cases that present small and discrete fact scenarios that decide small and discrete legal principles. A case that presents an interesting law review puzzle is preferred over the case that presents an opportunity to do justice. Dr. Gregory House would be proud.
For my own point of view, I am skeptical of the jury system as our finest expression of hope, but I do think that jury trials have been so marginalized that they are no longer considered an important expression of justice, or democracy. They are, now, aberrant events; a novelty to be reported, but not necessarily respected. Whether a jury trial is an expression of hope or not, the people's decisions - so vital that all 50 states supposedly guarantee the right to trial by jury -- are virtually ignored. That is a shameful way to run a government.
Tuesday, September 11, 2007
Using the Internet is NOT interstate commerce
A 10th Circuit case has decided that a guy found with child porn images in his possession cannot be convicted simply because he used the internet. The Government did not prove that he used the internet to get the child porn. The Court refused to indulge the very likely presumption that the guy got the porn off his computer. Instead, the Government should have proven the location of the guy's ISP, the ISP servers, or the website servers that he visited.
I generally agree that federal convictions should be based on proof that the defendant did precisely what Congress has forbidden, unaided by presumption or assumptions. This one, though, is a bit of a stretch.
But, it is even more interesting that the 10th Circuit would hold this view -- one that is virtually impossible to imagine ruling the day in the 5th Circuit, the 4th Circuit or the 7th Circuit. It matters where you are charged with a crime. The case is US v. Schaefer, No. 06-3080 (10th Cir. 2007).
I generally agree that federal convictions should be based on proof that the defendant did precisely what Congress has forbidden, unaided by presumption or assumptions. This one, though, is a bit of a stretch.
But, it is even more interesting that the 10th Circuit would hold this view -- one that is virtually impossible to imagine ruling the day in the 5th Circuit, the 4th Circuit or the 7th Circuit. It matters where you are charged with a crime. The case is US v. Schaefer, No. 06-3080 (10th Cir. 2007).
Net Neutrality - I'm still neutral
Net Neutrality is a principal being touted to keep phone and cable companies from ruining the Internet experience for everyone. According to proponents of neutrality, the people that provide Internet service shouldn't be allowed to charge advertisers, product sellers, or others a premium for making sure that the paid content is shoveled at consumers at higher band-width or with other priorities. If we don't stop them now, we'll end up with all "net" activity covered by cable and telephone ads, sprinkled in with other content that we really don't want to see. Then we'll have to work harder and smarter to get at the information that the we really want. On the other hand, why let government into Internet regulation at all? The Justice Department was asked about regulation, and it is against it. The Federal Trade Commission is for it. The Federal Communication Commission is supposed to decide.
So, what would you rather have...the phone and cable companies messin' with your Internet....or the FCC?
So, what would you rather have...the phone and cable companies messin' with your Internet....or the FCC?
My Greasy Fingers are just the start of a problem
After following a few links today, I got to this information:
- On May 15th, 2006 three doctors from California (Dr. Robert Harrison, MD, MPH; Dr. Arthur Gelb, MD; Dr. Phillip Harber, MD) released a document reporting the cases of two people who worked in two separate flavoring manufacturing plants, each of which manufactured artificial butter flavoring. In both of these cases, one being a 32 year old man and one being a 43 year old woman, the employees had no prior exposure to any chemicals yet they both were diagnosed with bronchiolitis obliterans, aka Popcorn Lung Disease.
- Bronchiolitis obliterans is a disease of the lungs which has been nicknamed "Popcorn Lung" or "Popcorn Workers' Lung" due to onset of this disease from inhalation of airborne diacetyl, a butter flavoring used in popcorn. Popcorn Lung is a disease in which the bronchioles are plugged with granulation tissue, also inflammation and scarring occurs in the smallest airways of the lungs and can lead to severe and life threatening shortness of breath.
- These are only two of many people who have been diagnosed with Popcorn Lung Disease. In fact, a man in Joplin, Missouri was awarded $20 million in a suit against the factory he worked for. He was the first of 30 people to file against this particular company.
- The first reported case of Popcorn Lung in a consumer was also recently reported. A man who ate 2 bags of microwave popcorn a day for about 10 years noticed that his lung capacity was not as good as it had been in the past and when he went to a doctor about it he was diagnosed with Popcorn Lung.
I eat a small bag of Popcorn almost every day. When I go the movie, I eat too much popcorn. And, although I'm not a "butter-flavor-lover", I'm pretty sure I'm in the risk category as far as eaters go. The thing that ticks me off is that the danger from this chemical comes from heating the chemical. Thus, the popcorn is not dangerous until I put it in the microwave, and start inhaling that delicious scent. What's next? Cancer from coffee smell? Disease from baking cookies? Cinnamon Roll Cindrome?
Friday, September 7, 2007
How Much Law did we Get this year?
Earlier I posted about the number of laws were passed by the Texas Legislature in 2007. As of September 7th, the count is 962 laws in the 90 day session. At the rate of 10 laws passed per day, I cannot believe that my representatives have even read most of the things that they are voting on. The 962 laws are the ones passed not the number offered for consideration.
The job of a legislator includes committee meetings, constituent visits, and floor discussion, among many other activities that they apparently tend to. (most of which deserve a completely different discussion). Given the number of days that are available for work on reading and considering laws that are presented for vote, I will venture the guess that most legislators have cast numerous votes on bills they have never read.
There are other worthwhile comments to be made about the legislative process. But, this is simple. Did you read the bill before you cast a vote? If you didn't read it, understand it, and apply your best judgment to it, then what value does "representation" have? If the citizens don't care whether you read or not, then why send you at all. We can just have insurance companies, medical lobbyists, and the dreaded "trial lawyers" battle out the future of our state..................................
Publishing despite irony.
The job of a legislator includes committee meetings, constituent visits, and floor discussion, among many other activities that they apparently tend to. (most of which deserve a completely different discussion). Given the number of days that are available for work on reading and considering laws that are presented for vote, I will venture the guess that most legislators have cast numerous votes on bills they have never read.
There are other worthwhile comments to be made about the legislative process. But, this is simple. Did you read the bill before you cast a vote? If you didn't read it, understand it, and apply your best judgment to it, then what value does "representation" have? If the citizens don't care whether you read or not, then why send you at all. We can just have insurance companies, medical lobbyists, and the dreaded "trial lawyers" battle out the future of our state..................................
Publishing despite irony.
Not Like I didn't expect it, but ....
The Waco Tribune Herald reported yesterday that the funds that will be provided by a recently passed bond package would be used to purchase the Hillcrest Medical Tower. The Tower would eventually become a "new and improved" HQ for the Waco Police Department. The sales pitch thrown at the voters by both the City and its bond proponents was that the City needed a new HQ, and did not have room for all the various police departments. In addition, the new building (voters were told) would be far more efficient because all of the police-persons could be under one roof, and work together on their various crime-fighting activities.
Yesterday's article, though, made clear that
- the City could not really afford to retrofit the building with the money from the bond package (thus necessitating yet more taxes and fees to fund the project)
- all the departments did not even want to be in the new building, but preferred their current locations
- the City would never even move all the departments into the building.
Oddly enough, the paper made no mention of the fact that the bond proponents and the City unabashedly lied to the public to get them to agree to a tax increase for the purchase of this building. It makes you want to live out in the country where you don't have to pay City taxes.
Saturday, September 1, 2007
I'l be careful in Indianapolis if I were you
James Campbell was in the street talking to some of his friends when a cop drove by. The Indianapolis police officer thought he observed something passing "hand to hand", and pursued Campbell. He ordered Campbell to stop, and Campbell kept walking. So, the officer drew his gun, and ordered him to the ground. Campbell was patted down, and nothing turned up.
Here's the good part: Indianapolis has a policy that any officer having control of a prisoner shall conduct a thorough body search. For Campbell, that meant that the cops pulled his pants partway down, and "separated Campbell's buttocks and did a 'visual inspection' to as to 'make sure he had nothing shoved into his anal area'".
Campbell sued, and although the jury found against him, the appellate court held that "no reasonable jury could find that a strip search conducted in public for no identifiable reason conformed with the 4th Amendment."
I'm not so amazed at the appellate court ruling as I am with the fact that cops consider a "thorough search" to mean a body cavity search in the middle of someone's yard. And, I'm a bit amazed that jurors would think it was OK, too.
Maybe you can just have this done at the border of Indiana, and get a three day pass for your trips there.
Here's the good part: Indianapolis has a policy that any officer having control of a prisoner shall conduct a thorough body search. For Campbell, that meant that the cops pulled his pants partway down, and "separated Campbell's buttocks and did a 'visual inspection' to as to 'make sure he had nothing shoved into his anal area'".
Campbell sued, and although the jury found against him, the appellate court held that "no reasonable jury could find that a strip search conducted in public for no identifiable reason conformed with the 4th Amendment."
I'm not so amazed at the appellate court ruling as I am with the fact that cops consider a "thorough search" to mean a body cavity search in the middle of someone's yard. And, I'm a bit amazed that jurors would think it was OK, too.
Maybe you can just have this done at the border of Indiana, and get a three day pass for your trips there.
Friday, August 31, 2007
Governor Perry Commutes Death Sentence
We should be on the alert for flying pigs....Texas has, with full opportunity and authority to execute someone, refused to do so. Governor Perry decided, at the last minute, that a death row inmate who indisputably never killed anyone, but was riding in the car with the shooter, did not deserve the death penalty, and commuted the inmate's sentence to life in prison. The inmate received the death penalty under the Texas law that attributes the acts of other conspirators to each participant in the criminal scheme. So, he's legally guilty of capital murder, but should not be executed.
In his inimitable style, Perry expressed concern over multiple defendants in a death penalty case, and failed to acknowledge the more obvious issue that there are both constitutional and moral problems will an execution of a person who did not take a life. Of course, Perry merely suggested that the Legislature examine the problem, and did not commit to withhold his veto on any fair and reasonable legislative solution.
In his inimitable style, Perry expressed concern over multiple defendants in a death penalty case, and failed to acknowledge the more obvious issue that there are both constitutional and moral problems will an execution of a person who did not take a life. Of course, Perry merely suggested that the Legislature examine the problem, and did not commit to withhold his veto on any fair and reasonable legislative solution.
Tuesday, August 28, 2007
A New Kind of Erie Rule
Law students become familiar with the rule of Erie v. Tompkins early in their studies. In short, the rule requires a federal court to apply the law of its forum state in diversity cases. Often, the case before the federal court presents a question that has not yet been decided by the forum state, so the federal court makes an "Erie Guess" about what the highest court of its state would do if presented with the same question. That much is relatively clear.
The 7th Circuit, though, has recently put a new wrinkle into the "Erie Guess". When there is no state law to guide the federal courts, and given a choice between an interpretation of law which restricts liability and one which expands liability, the 7th Circuit says that federal courts should choose the interpretation that denies recovery.
Reading the cases from the 7th Circuit on this issue, the most recent of which is Pisciotta v. Old National Bankcorp, No. 06-3817, August 23, 2007, there is no source for this reasoning, other than the 7th Circuit's own inclination to deny recovery to any Plaintiff with a novel theory of recovery. Are we really better off with courts that deny recovery for any case, just because the legal theory is new, undecided, or "novel"? That's not a particularly good rule, since the Pisciotta case involves a situation where a computer hacker obtained access to private identity information due to inadequate security measures by the defendant bank. That's a new theory because technology has changed the business of banking, not because some greedy lawyers have dreamed up a new way to sue for money. But, I would look for other circuits (4th, 5th, and 11th Circuits) to adopt this "Erie Guess" rule when they get the chance
The 7th Circuit, though, has recently put a new wrinkle into the "Erie Guess". When there is no state law to guide the federal courts, and given a choice between an interpretation of law which restricts liability and one which expands liability, the 7th Circuit says that federal courts should choose the interpretation that denies recovery.
Reading the cases from the 7th Circuit on this issue, the most recent of which is Pisciotta v. Old National Bankcorp, No. 06-3817, August 23, 2007, there is no source for this reasoning, other than the 7th Circuit's own inclination to deny recovery to any Plaintiff with a novel theory of recovery. Are we really better off with courts that deny recovery for any case, just because the legal theory is new, undecided, or "novel"? That's not a particularly good rule, since the Pisciotta case involves a situation where a computer hacker obtained access to private identity information due to inadequate security measures by the defendant bank. That's a new theory because technology has changed the business of banking, not because some greedy lawyers have dreamed up a new way to sue for money. But, I would look for other circuits (4th, 5th, and 11th Circuits) to adopt this "Erie Guess" rule when they get the chance
Tuesday, August 21, 2007
The Texas Pledge of Allegiance
Well, another Texas Session Law pamphlet arrived today, and we are up to 690 laws passed this year. The feature this time is that the Legislature added "One State, Under God" to the Texas Pledge of Allegiance.
If you can still say the Texas Pledge, my hat's off to you, but are we now better off because a small percentage of the population will now declare that the State of Texas is "under God"? Or, more likely, did we just buy another lawsuit with the expense for our own Attorney General to put a cast of lawyers defending the law, and the State possibly paying the attorney for the other side if the suit is successful?
90 days every two years, or 2 days every 90 years? Which is the appropriate schedule of legislative sessions in Texas?
****Update 8/29/2007: There's been one lawsuit filed, and the judge refused to keep little kids from saying the pledge with the new language. In these cases, context is everything, and I can't figure out why it is necessary, NOW, to make the statement that Texas acknowledges God's role in its sovereignty. And, while I believe that all Americans should make that acknowledgement, I find it particularly galling that we will have to go to the Courthouse to figure out if it is appropriate to do so.
If you can still say the Texas Pledge, my hat's off to you, but are we now better off because a small percentage of the population will now declare that the State of Texas is "under God"? Or, more likely, did we just buy another lawsuit with the expense for our own Attorney General to put a cast of lawyers defending the law, and the State possibly paying the attorney for the other side if the suit is successful?
90 days every two years, or 2 days every 90 years? Which is the appropriate schedule of legislative sessions in Texas?
****Update 8/29/2007: There's been one lawsuit filed, and the judge refused to keep little kids from saying the pledge with the new language. In these cases, context is everything, and I can't figure out why it is necessary, NOW, to make the statement that Texas acknowledges God's role in its sovereignty. And, while I believe that all Americans should make that acknowledgement, I find it particularly galling that we will have to go to the Courthouse to figure out if it is appropriate to do so.
Thursday, August 16, 2007
How Much Law do we really need?
I got my copy of Volume 3 of the Texas Session Laws today. It covers Chaps. 269-500....meaning that our Legislature passed at least 500 laws this session. I would hope that the following two years will provide a quality of life 500 times better than it was before, but I have my doubts.
For example, one law (that is noted as significant) says that the Education Code was amended to authorize "the Commissioner of Education to consider school districts, with a wealth per student that exceeds the recapture threshold for the first time in 2006-2007 or a later school year, to have its wealth per student reduced to the equalized wealth level by deducting the recapture amount from the hold harmless amount of state aid, in lieu of a recapture option which requires the school district to hold an election".
So....am I better off or worse off?
*Update: as of September 7, 2007 (a date after which most of the legislation passed in the 2007 session have become effective) the count for the year is 962 laws passed in the 90 day session.
For example, one law (that is noted as significant) says that the Education Code was amended to authorize "the Commissioner of Education to consider school districts, with a wealth per student that exceeds the recapture threshold for the first time in 2006-2007 or a later school year, to have its wealth per student reduced to the equalized wealth level by deducting the recapture amount from the hold harmless amount of state aid, in lieu of a recapture option which requires the school district to hold an election".
So....am I better off or worse off?
*Update: as of September 7, 2007 (a date after which most of the legislation passed in the 2007 session have become effective) the count for the year is 962 laws passed in the 90 day session.
Monday, August 13, 2007
Whoops? Athletes backing the wrong shoe company
Tracy McGrady and Kevin Garnett may have backed the wrong shoe company. In a recent case, the Supreme Court of California has decided that California may enforce its ban on the importation of kangaroo products - including the hide that is used to make Adidas shoes. The United States Government is not even banning the importation, as kangaroo is not an endangered species. Nor does Australia ban the export of kangaroo product. Only California.
Being from Texas, where the use of exotic skins and hides to produce a variety of wearing apparel is a time-honored tradition, I have a hard time understanding California's position. But, maybe somebody can explain it to me.
Being from Texas, where the use of exotic skins and hides to produce a variety of wearing apparel is a time-honored tradition, I have a hard time understanding California's position. But, maybe somebody can explain it to me.
Wednesday, August 8, 2007
Corporate Manslaugther in the UK
In the world of corporate responsibility, this might seem to be good news. In the UK, entities (including the government) whose gross negligence leads to the death of an individual may now face criminal sanctions for manslaughter. Interestingly, the sanctions are not usually prison time....instead, it is financial penalties, a "publicity order" and an order to publicly take remedial steps to correct the conditions that led to the death.
Penalty No. 1 is the most interesting. In America, we call this punitive damages, and our tradition has been to allow injured parties to decide if, and when, to make a claim that gross negligence has led to death. We have also traditionally permitted juries to decide the appropriate punishment - by assessing a financial penalty. Recent US Supreme Court cases have all but removed this option under the guise of due process. And, according to reports, the High Courts in England had done the same thing -- resulting in the passage of this corporate manslaugther statute.
Whether one believes that corporate accountability is a matter of law or economics, this evolution in the law most certainly places power in the hands of the government that used to belong to the people. And, it is a symptom of a larger trend to criminalize conduct that used to be a matter for tort cases. Individualized harm is taking a back seat to generalized harm, with decisions on prosecution, trial and punishment left largely to the whim of political offices.
More information
Penalty No. 1 is the most interesting. In America, we call this punitive damages, and our tradition has been to allow injured parties to decide if, and when, to make a claim that gross negligence has led to death. We have also traditionally permitted juries to decide the appropriate punishment - by assessing a financial penalty. Recent US Supreme Court cases have all but removed this option under the guise of due process. And, according to reports, the High Courts in England had done the same thing -- resulting in the passage of this corporate manslaugther statute.
Whether one believes that corporate accountability is a matter of law or economics, this evolution in the law most certainly places power in the hands of the government that used to belong to the people. And, it is a symptom of a larger trend to criminalize conduct that used to be a matter for tort cases. Individualized harm is taking a back seat to generalized harm, with decisions on prosecution, trial and punishment left largely to the whim of political offices.
More information
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