Category Archives: law

must…quote…court case

The plaintiff and the defendant were in a long-term committed relationship. Early in the morning of September 24, 1994, they were engaged in consensual sexual intercourse. The plaintiff was lying on his back while the defendant was on top of him. The defendant’s body was secured in this position by the interlocking of her legs and the plaintiff’s legs. At some point, the defendant unilaterally decided to unlock her legs and place her feet on either side of the plaintiff’s abdomen for the purpose of increasing her stimulation. When the defendant changed her position, she did not think about the possibility of injury to the plaintiff.

(italics added by me)

blog trail: via MA Lawyers Weekly via Wampum

looming challenges to federalism

i’ll be interested to see how the conservative, pro-federalism, pro-states’ rights, GOP-run government (and the conservative intelligentsia which carries their theoretical water) handles some of the upcoming challenges to federalism:

  • medical marijuana laws
  • state & regional initiatives on global warming: for instance, California’s mandatory cap on greenhouse-gas emissions will have to be signed off on by the EPA before it goes into effect

thomas doesn’t always mind judicial “intervention”

By JOHN HANNA Associated Press Writer

LAWRENCE, Kan. (AP) – U.S. Supreme Court Justice Clarence Thomas said Thursday he would prefer not to face another election-related lawsuit, but defended the high court’s decision to get involved in the contentious dispute over the 2000 presidential vote in Florida.

“What are you supposed to do when somebody brings a lawsuit?” Thomas asked University of Kansas law students. “You hear people say the Supreme Court jumped into the last election. I find it very ironic that the very people saying judges are interfering are bringing lawsuits.”

“What do you think? Donald Duck is going to decide it?”

When asked about the prospect of more litigation over the 2004 vote, Thomas said, “I would prefer not to have to decide it, but that joins a long list of things,” adding: “It’s my job.”

Justice Thomas Hopes for Smooth Election

People who say judges are interfering are really trying to say that judges are making illegitimate decisions and stepping beyond their authority. This is a critique that Thomas & his ilk make quite often when talking about decisions they don’t like. But apparently “it’s their job” when it comes to making a decision, like Bush v. Gore, that they like to make.

Too bad folks like Thomas and the Bush administration have politicized this critique to such an extent. It is now basically useless to say that a judge overstepped his (usually) or her authority — that just means you don’t like the decision. Used to be you could use it to say that the judge’s decision was not supported by the law.

same-sex marriage decisions

  • Newfoundland, Canada: lawsuit launched for same-sex marriage [365gay.com 11/5]
  • 2004-11-05: Saskatchewan legalized same-sex marriage, the 7th Canadian province to do so (British Columbia, Ontario, Quebec, Manitoba, Nova Scotia, and the Yukon Territory). Four of the plaintiff couples sought to get married in Saskatchewan and a fifth couple sought recognition of its British Columbian marriage. Oral arguments heard Wed, 11/3. [365gay.com 11/5]
  • 2004-11-04: Oral arguments before Judge Kramer, in the California Superior Court, where the City of San Francisco is challenging Prop. 22 (the “Knight” Initiative) on state Constitutional equal protection grounds. California AG Lockyer defended Prop 22 as did intervenor Alliance Defense Fund.
  • 2004-11-03: Every freakin’ anti-SSM amendment passed.
  • 2004-10-29 Friday: Germany expanded rights for same-sex couples, allowing registered DPs to adopt each other’s children. Germany retained restrictions on non-stepparent adoption. Germany also extended various marriage laws governing the dissolution of marriages to same-sex couples. [365gay.com 10/29]
  • 2004-10-27: Georgia said it won’t consider the validity of its opposite-sex-only marriage amendment until it’s been voted on. [nyt]
  • Louisiana said its recently-passed opposite-sex-only marriage amendment didn’t pass muster, because it had multiple purposes. (Amendments can have only one purpose.) Still looking for a copy of the decision …
  • 2004-Sept: Canadian provinces Manitoba and Nova Scotia ruled for same-sex marriage.
  • California Superior Court, 2004-Sept-8, ruling that California AB 205 did not violate Proposition 22. [decision posted at NCLR] Prop 22, the “Knight Initiative”, statutorily defined marrage in California as between a man and a woman. The court held that domestic partnerships are distinct from marriage.
  • California Supreme Court, 2004-Aug-12, ruling that San Francisco Mayor Gavin Newsom exceeded his authority in permitting city officials to marry same-sex couples, and holding the several thousand marriages legally void. [decision posted at NCLR]

info law news

‘true name’ bill signed

Sigh. Now i know why i was feeling kinda blue today: On Wed, 9/22, Schwarzenegger signed SB1506, the so-called ‘true-name’ bill, which requires anyone putting copyrighted content on a p2p system to include their name and contact information. [Sacramento: Governor signs Internet piracy bill: E-mail address required to share movies, music online by Mark Martin & Lynda Gledhill — sfgate 9/22]. Certainly it wasn’t a surprise — this bill has been steamrollering through since early this year. But it doesn’t make my day any better.

Highlights: this line from the article:

Last week [Gov. Schwarzenegger] signed an executive order prohibiting state employees from using software designed for file sharing.

Ummm … like TCP/IP? AppleShare? The web? Might make it hard to do business …

And in related news: Donna Wentworth pointed to another recent state-law copyright case [U.S. v. Jean Martignon, 03cr1287 (SDNY 2004)]: The court struck down an anti-bootleg law because it didn’t recognize copyright terms. (Attn, Gov. Schwarzenegger: Is that the drumbeat of p-r-e-e-m-p-t-i-o-n sounding in the distance … ?)

The bill, SB1506/AB (pdf as chaptered), reads:

Continue reading

Verifying Evidentiary Science

The “problems with fingerprinting” have been highlighted in one recent essay on Slate (Printing Problems – The inexact science of fingerprint analysis by David Feige, 2004/05/27) and one article in the NYT (Can Prints Lie? Yes, Man Finds to His Dismay by Benjamin Weiser, 2004/05/31). The problem with the problems with fingerprinting, though, is that these articles aren’t about problems with fingerprinting — these articles are about problems with evidentiary science.

Specifically, the real problem is that attorneys continue to present, and judges and juries continue to hear, some kinds of evidentiary science as foolproof — absolute — and weigh them inappropriately highly. Of course any piece of evidence is supposed to be weighed with all the other evidence to determine whether all the evidence reaches a particular standard of guilt (no reasonable doubt, for instance, or preponderance of the evidence). But some kinds of evidence — fingerprinting, DNA — are, in practice, treated as nearly infallible. Unfortunately, this kind of evidence is completely fallible. All evidence exists in a context, and evidence derived from analysis exists in an analytic context — in other words, a human-mediated context. And humans are nothing if not fallible.

One way to ameliorate this problem might be to require cross-checks for the use of these kinds of evidence — sort of peer review of the results. In the case discussed in the NYT, the problem was a database problem — suspect A’s prints were filed in suspect B’s record. Once suspect A’s prints were lifted from a new crime scene, suspect B’s name matched. Suspect B begged for a photo ID match but the judges told him that the fingerprint records were infallible. So what’s the problem here? A database problem. What would be a useful cross-check? A database cross-check of some sort; for example, a photo ID; or use of a separate database.

Hmm. This suggests another good reason for not having one giant identifying database … because if those records are screwed up the right way it would be really, really difficult to prove. … But that’s another rant.

future of ip clinics

I’m out in DC, attending an IP Clinics meeting. Interesting how there are so many “access” clinics now, dedicated to small business / entrepreneurship — helping people get IP. Will the policy-oriented clinics be outweighed by the transactional clinics? Are we even the same kinds of clinics? I’m not sure.

update 2006/2/7: I should have posted this a while back, but one of the outcomes of this meeting was the nascent IP Clinics Network, which now has a website — ipclinics.net . Like any other network of nonprofits & public interest & public services orgs, it needs a lot of work, but it’s a good start.