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Archive for the ‘Legal News’ Category

Welcome To The Police State

June 6th, 2013 Comments off

President Obama stated that it was time to end the “war on terrorists.” I agree. It’s also time to end the police state that collects data on  what everyone is the U.S. is doing, just in case (in the words of Senator Feinstein) they “might become a terrorist in the future.” Since my youth I worried that a Nazi-like regime could appear again. This NSA surveillance is beginning to look like the Gestapo.

I guess I was naive in thinking that the 4th Amendment to the U.S. Constitution would prohibit searching my personal data except  where there is probable cause.

Categories: General Observations, Legal News Tags:

Big Brother Is Watching

June 6th, 2013 Comments off

A news story today that reports a leak of a secret court order. The order requires Verizon business services to turn over to the National Security Agency information regarding all telephone calls and data usage by Verizon business customers on a daily basis. The information does not include the content of the communications, but simply the the logs of the communication such as phone numbers, time and length of connection, etc.

This single leak is probably just the tip of the iceberg. How many other orders have been made that were not leaked to the media? Is the government sifting through the logs of every phone call and every data connection made in the U.S.? This is a definite possibility. I guess the 4th Amendment has been nullified by the Patriot Act. I expected better from this administration.

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John Edwards Verdict

May 31st, 2012 Comments off

I have little sympathy for the moral transgressions of John Edwards, but his misdeeds do not belong in a courtroom. As a victim of marital infidelity I appreciate the pain that Edwards caused to his spouse and family. But to air this dirty laundry in the guise of a political campaign contributions issue is misplaced and does not benefit anyone. I am 100% in support of campaign finance reform but this is just a sleazy and lurid scandal that has no business in the courts. It is as pointless as the Bill Clinton impeachment. Yes, the guy is a pig but can we move on people?

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Hadley v. Baxendale

April 14th, 2012 Comments off

A recent news article in the San Diego Union-Tribune mentioned a report on the cause of the generator problems at the local nuke plants (San Onofre). It appears that when the generators were replaced a couple of years ago, they were redesigned to increase output. Additional steam tubes were added and a vibration damper was removed to make room for them. It seems that the result is damage and excess wear to the steam tubes. Apparently, the “pimp my nuke” approach is not the best idea for maintenance on a power plant that is critical to the region’s power, and failure of which could result in a catastrophic environmental disaster in a densely populated region.

If this report is confirmed then the result is undoubtedly a very expensive re-design of the re-design and a period of years before new or modified generators are back in service. The issue will be identifying who made the mistake. The real fun will be in determining the responsibility for the enormous loss of profit from the plant sitting idle for years. This brings us back to the 19th century English case of Hadley v. Baxendale. In Hadley, defendants were responsible for the delay in the delivery of repair parts to plaintiff’s steam engine and this cause plaintiff severe economic harm. Were defendants responsible for the lost profits? Not in Hadley, because the defendants could not reasonably anticipate this sort of loss.

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Free Speech In The Workplace

April 11th, 2012 Comments off

An interesting case in the local newspaper today. A Poway school district math teacher had various religious slogans on large banners prominently displayed in his classroom. Eventually the school district asked him to remove the slogans and he filed suit to keep the posters, based on the claim of a 1st Amendment right to free speech. The 9th Circuit ruled that the school district had the right to restrict speech in the workplace and the U.S. Supreme Court recently declined to review the case.

It is well-established that an employer can restrict the speech of a government employee when it is “official speech” in connection with job duties. The school district was well within its rights to restrict the poster displayed in the classroom. In fact, based on the Establishment Clause in the 1st Amendment, they were required to do so in this case.

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SCOTUS On Health Care

March 30th, 2012 Comments off

It will be interesting to see how the U.S.Supreme Court decides the case in front of it challenging the health care reform act. Very few laws are struck down based on the claim that Congress exceeded the power granted by the Commerce Clause, as almost all business in the U.S. involves interstate commerce. Numerous laws require the purchase of insurance. So there is little question that the issue is basically a political one, and the news reports on the oral argument seem to confirm this. This political battle over the need for universal health care has been on-going for over 80 years and I doubt that it will be resolved any time soon. It really is astonishing the the U.S. is the only “first-world” country without universal health care.

Categories: General Observations, Legal News Tags:

Free Speech v. Hollywood Media

January 18th, 2012 Comments off

Today we have the Internet protest concerning the proposed “Stop On-line Piracy Act” and the similar “Protect Intellectual Property Act.” The concern is protecting movie and other media companies from illegal copies of their products on the Internet. However, the way the laws are written creates a real danger that freedom of speech and the free flow of information on the Internet will be stifled due to the overbroad language and enforcement tools proposed in these acts. This was true of the Digital Millennium Copyright Act passed under Clinton at the behest of movie studies, but these proposed laws go much further.

The reality is that the pirates are beyond the reach of U.S. law enforcement and will probably be unaffected by new legislation in the U.S. On the other hand, honest people are more likely to be affected and suffer inconvenience and/or censorship of speech as a consequence of the proposed laws.

The serious concern here is that Hollywood media companies make substantial campaign contributions to both Democrats and Republicans, so there is bi-partisan support for some legislation regardless of whether it serves the public and/or tramples individual liberties. At least the Obama administration released a statement last week that it opposes the bills in their current form due to the concerns stated above.

Categories: Legal News Tags:

Discrimination Law

January 13th, 2012 Comments off

The recent U.S. Supreme Court decision in Hosanna-Tabor Church v. Equal Employment Opportunity Commission raises some interesting legal issues. While the plaintiff was called a “minister,” she was basically a school teacher and her religious duties were limited to teaching a short (45 minute) religious education segment and walking the kids to the chapel.

Certainly a religious school can discriminate in hiring based on religious qualifications when the job requires teaching religion and/or religious training. That is not an issue. The issue is the clear and intentional discrimination against the employee because of her medical disability. The Court’s decision that a “minister” can suffer intentional discrimination that would be illegal in any other employment context is troublesome. Here it seems that the “minister” label was a sham and pretext to deprive a non-ministerial employee of her employment rights.

At the very least, the issue of whether an employee is a “minister” should be permitted to be presented in a court or administrative claim. Otherwise, potential plaintiffs are barred from stating any claim against a religious organization based on that organization’s reflexive invocation of the “minister” label to block such a claim under the First Amendment.

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Long Island Railroad

December 18th, 2011 Comments off

While teaching earlier in the week we were discussing an employment law case involving the Long Island Railroad. Any first year law student  can tell you about the most famous case involving the Long Island Railroad. It is Palsgraf v. Long Island Railroad wherein Justice Cardozo (later a member of the U.S. Supreme Court) states the limit for liability under negligence. In Cardozo’s words, the case involved:

Plaintiff was standing on a platform of defendant’s railroad after buying a ticket to go to Rockaway Beach. A train stopped at the station, bound for another place. Two men ran forward to catch it. One of the men reached the platform of the car without mishap, though the train was already moving. The other man, carrying a package, jumped aboard the car, but seemed unsteady as if about to fall. A guard on the car, who had held the door open, reached forward to help him in, and another guard on the platform pushed him from behind. In this act, the package was dislodged, and fell upon the rails. It was a package of small size, about fifteen inches long, and was covered by a newspaper. In fact it contained fireworks, but there was nothing in its appearance to give notice of its contents. The fireworks when they fell exploded. The shock of the explosion threw down some scales at the other end of the platform, many feet away. The scales struck the plaintiff, causing injuries for which she sues.

The court held that the Railroad was not liable as this unusual sequence of events was not something that was foreseeable or expected, and therefore the railroad owed no duty to Mrs. Palsgraf.

If you are interested, you can see a “dramatic” re-enactment of the events using LEGO figures created by some 1st year law students:

 

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“Occupy” and the First Amendment

December 3rd, 2011 Comments off

I’m back after getting bogged down in teaching stuff.

Probably the most interesting legal issue these days is the clash between the Occupy movement and the local police in various locations. The Occupy movement is definitely political speech, and there is a long tradition to this sort of thing. One example is the WWI solders who occupied the Washington Mall in the 1930s for several months demanding early payment of their war bonus. Eventually this “Hooverville” was destroyed by local police, but the movement did succeed in getting the payment for veterans.

Today we have clashes with local police trying to enforce various anti-loitering ordinances (which are often struck down for vagueness and other problems). While the purported motive is public safety and sanitation, the effect is suppressing protected 1st Amendment speech. One has to wonder what political motives may be behind the local police. It will be interesting to see how this plays out.

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