Boob job undone

In a decision that clears CBS of any wrongdoing for airing the 2004 Super Bowl halftime show that featured Janet Jackson’s infamous “wardrobe malfunction,” a federal appeals court overturned the $550,000 fine that the Federal Communications Commission levied against the station, calling the fine arbitrary and capricious.

The New York Times

The Albuquerque McDonald’s Coffee Case

Stella Liebeck was a 79-year-old Albuquerque resident when she bought some McDonald’s coffee in 1992. She bought it at a drive-thru, but the car was parked (she was a passenger) when the accident took place. She spilled the entire cup onto her lap. She was hospitalized for 10 days. McDonald’s originally offered her $800 toward her $11,000 medical bills.

This, from a article by Joshua Green at The Washington Monthly, provides some facts to offset the folklore surrounding the infamous McDonald’s coffee lawsuit. It was first posted here four years ago today.

To persuade the public that frivolous personal injury suits have brought on a crisis, advocates of change religiously invoke cases like the elderly woman who spilled coffee on herself and won a $2.9 million jury verdict against McDonald’s. . . . As Roger Williams University torts professor Carl Bogus explains in his book, Why Lawsuits Are Good for America, the woman who spilled her McDonald’s coffee had to undergo a skin graft, spend weeks in the hospital, and offered to settle for $10,000 (McDonald’s refused). She only sued as a last resort—the epitome of conscientious use of the legal system. Her original award of $2.9 million was later reduced by a judge, as most such judgements are, to $480,000, and she wound up settling for even less. To prevent other suits, McDonald’s, which had previously ignored more than 700 similar complaints, stopped serving near-boiling coffee, as did its competitors.

The Supremes

Well, shoot.

Summing Up

In Boumediene today, the Supreme Court decided 5-4:

Whether Article I, Section 9, Clause 2, (the privilege of the writ of habeas corpus) applies to aliens designated as enemy combatants detained at the U.S. Naval Station at Guantanamo Bay, Cuba.

It does.

Whether procedures established for those prisoners by Congress are a constitutionally adequate and sufficient guarantee of that privilege.

They aren’t.

Approximately 250 prisoners are held at Guantanamo without charges, some for six years. Only a few were petitioners in the subject case, but the decision should apply across the board.

250 alleged bad guys now get a day in court to find out why they are being held.

And this puts the nation more in peril?

And, if so, why did we move them 7,500 miles closer to the U.S. in the first place?

(Here’s the opinion [pdf].)

Best line of the day, so far

“The laws and Constitution are designed to survive, and remain in force, in extraordinary times.”

Justice Anthony M. Kennedy writing for the Supreme Court in Boumediene v. Bush.

In McCain’s Court

The question, as always with McCain these days, is whether he means it. Might he really be a “maverick” when it comes to the Supreme Court? The answer, almost certainly, is no. The Senator has long touted his opposition to Roe, and has voted for every one of Bush’s judicial appointments; the rhetoric of his speech shows that he is getting his advice on the Court from the most extreme elements of the conservative movement. With the general election in mind, McCain had to express himself with such elaborate circumlocution because he knows that the constituency for such far-reaching change in our constellation of rights is small, and may be shrinking. In 2004, to stoke turnout among conservatives, Karl Rove engineered the addition of anti-gay-marriage voter initiatives to the ballots in Ohio and other states; last week, though, when the California Supreme Court voted to allow gay marriage in that state, only hard-core activists were able to muster much outrage. When it comes to the Constitution, McCain is on the wrong side of the voters, and of history; thus, his obfuscations.

Jeffrey Toobin

Follow the link to read more of Toobin’s analysis.

What He Said

“[A] court striking down a law supported by large majorities is not antithetical to our system of government. Such a judicial act is central to our system of government.”

Glenn Greenwald

Public Defender Goes Overboard

Santa Fe Sheriff Greg Solano takes exception to a defense attorney. Read why.

Oh Parody Woman

It was on this day in 1994 that the Supreme Court ruled that parody can be protected by the fair use clause of the Copyright Act of 1976. The case arose from a song by the rap group 2 Live Crew, which used elements of the Roy Orbison song from 1964: “Oh Pretty Woman.”

The Roy Orbison version of the song is about a man watching a pretty woman walking down the street. The 2 Live Crew version is about the subsequent relationship with that woman, who becomes a hairy woman, a bald-headed woman, and a two-timing woman. The music publishing company Acuff-Rose, which holds the copyright for the Roy Orbison song, sued 2 Live Crew for copyright violation.

Among those who sent “friend of the court” briefs in support of 2 Live Crew were Mad magazine, The Harvard Lampoon, and the Comedy Central TV channel. Among those who argued against 2 Live Crew were Dolly Parton and Michael Jackson. The Supreme Court ruled unanimously in favor of 2 Live Crew.

Justice David H. Souter wrote, “Like less ostensibly humorous forms of criticism, [parody] can provide social benefit by shedding light on an earlier work and, in the process, creating a new one.”

The Writer’s Almanac from American Public Media

Best line of the day, so far

What bothered the chief justice was that Exxon was being ordered to pay $2.5 billion — roughly three weeks’ worth of profits — for destroying a long swath of the Alaska coastline in the largest oil spill in American history.

“So what can a corporation do to protect itself against punitive-damages awards such as this?” Roberts asked in court.

The lawyer arguing for the Alaska fishermen affected by the spill, Jeffrey Fisher, had an idea. “Well,” he said, “it can hire fit and competent people.”

The Washington Post

Best line of the day, so far

“All I am doing is following what to me is the clear wording of the First Amendment that ‘Congress shall make no law . . . abridging the freedom of speech or of the press.’ As I have said innumerable times before, I simply believe that ‘no law’ means no law.”

Justice Hugo Black, born on this date in 1886.

PLOL

The Public Libary of Law. A new resource to bookmark.

Oyez oyez oyez

On this date in 1803 Marbury v. Madison was argued before the Supreme Court.

Marbury was the case that established the Supreme Court’s standing as the arbiter of the Constitution.

On this date in 1856 Dred Scott v. Sandford was argued before the Supreme Court.

Scott was the case where the Supreme Court ruled that persons of African descent could never be citizens of the United States whether free or slave and that the federal government had no constitutional authority to limit slavery in the territories.

The Nine

NewMexiKen received a copy of Jeffrey Toobin’s The Nine: Inside the Secret World of the Supreme Court for Christmas. I’m most of the way through and I recommend it highly.

Toobin tells the story (tells the stories might be a better way of putting it) of the recent Supreme Court. Though he writes about the legal issues before the Court, it’s as much the story of the nine individuals who served as justices from 1994-2005 and the succession that took place in 2005-2006. (Eleven years is the longest that nine justices have ever served together.) Justice O’Connor has the leading role. It’s a readable, well-written, well-paced book.

The Nine was on many lists as one of the best nonfiction books of last year.

If Your Hard Drive Could Testify

From an article in The New York Times:

The search was not unusual: the government contends that it is perfectly free to inspect every laptop that enters the country, whether or not there is anything suspicious about the computer or its owner. Rummaging through a computer’s hard drive, the government says, is no different than looking through a suitcase.

One federal appeals court has agreed, and a second seems ready to follow suit.

Holiday Survival Kit

A pretty cool (and useful) e-card from a lawfirm.

Cadwalader 2007 Holiday Survival Kit

‘Avoid Death’

DETROIT — A warning on a small tractor that reads “Danger: Avoid Death” has been chosen as the nation’s wackiest warning label by an anti-lawsuit group.

The Wacky Warning Label Contest, now in its 11th year, is conducted by Michigan Lawsuit Abuse Watch as part of an effort to show the effects of lawsuits on warning labels.

Kevin Soave of Farmington Hills, a Detroit suburb, won the $500 grand prize for submitting the winning label.

The $250 second place was given to Carrianne, Jacob and Robby Turin of Greensburg, Pa., for a label they found on an iron-on T-shirt transfer that warns: “Do not iron while wearing shirt.”

Richard Goodnow of Lancaster, Mass., earned the $100 third-place prize for a label on a baby stroller featuring a small storage pouch that warns: “Do not put child in bag.”

USATODAY.com

There’s a few more.

I know he’s not doing well in the polls

But Bill Richardson would be the best president of the lot. For example:

My opinion of Gov. Bill Richardson has just grown by leaps and bounds. He has appointed veteran criminal defense lawyer Charlie Daniels (a real criminal defense lawyer, by the way, who truly believes in and has been passionate about defending the rights of the accused his entire career) to be a Justice on the New Mexico Supreme Court.

Talk Left

Sort of the anti-Alito.

The Strange History of Bra Removal

Michael Froomkin on the national security bra removal.

Best line of the day, so far

“A verdict of $222,000.00, for infringement of 24 song files worth a total of $23.76?”

Recording Industry vs The People

Pillar of Justice

Thurgood Marshall was sworn in as Supreme Court Justice 40 years ago today. Marshall made the successful argument before the Court in Brown v. Board of Education of Topeka in 1954. He was appointed to the U.S. Court of Appeals by President Kennedy, and as Solicitor General and then to the Supreme Court by President Johnson.

Click here to see how political cartoonist Paul Conrad depicted the loss when Marshall died in 1993 (two years after retiring from the Court).

Don’t they even try?

Ken, official oldest child of NewMexiKen, called to express his exasperation with NPR. He reported that NPR news at 10 a.m. MT began with:

“A New York jury has convicted New York Knicks head coach Isaiah Thomas of sexually harassing a former female senior executive with the team.”

It’s a civil case folks, not a criminal case. You don’t get “convicted” in a civil case.

Individual reporters get the facts wrong all the time, but this displays an ignorance of fundamental concepts by a whole news organization.

(NewMexiKen verified the exact lead sentence as quoted above.)

Making A More Perfect Constitution

University of Virginia Professor and frequent political commentator Larry Sabato proposes Making A More Perfect Constitution and suggests a second constitutional convention to do so.

The link is to the first of what he promises are several essays.

Over the next several weeks, I’ll be posting diaries outlining some of my proposals for Constitutional reform (which number 23 in all, though only a sampling will appear here). This week I hope to provide readers with some general ideas to get the creative discourse started; as the weeks progress, I’ll be going into greater depth on some proposals.

If you’ve passed the citizenship sample test (see previous post), you are encouraged to see what Sabato has to say.

What change would you propose?

NewMexiKen would limit the president to one six-year term. Representatives would get four-year terms, but no one could serve in the House or the Senate more than 12 consecutive years.

Best court ruling of the day, so far

A New Hampshire prison inmate’s file drove a federal judge to rhyme. U.S. District Court Judge James Muirhead reached for Dr. Seuss’ “Green Eggs and Ham” for inspiration when a prison inmate protesting his diet attached a hard-boiled egg to documents sent to court.

“I do not like eggs in the file. I do not like them in any style. I will not take them fried or boiled. I will not take them poached or broiled. I will not take them soft or scrambled Despite an argument well-rambled,” Muirhead wrote in his response to inmate Charles Jay Wolff.

He then ordered the egg destroyed: “No fan I am Of the egg at hand. Destroy that egg! Today! Today! Today I say! Without delay!”

Yahoo! News

Muirhead’s food ruling is good, but NewMexiKen’s favorite food ruling is from the United States Court of Appeals for the Tenth Circuit:

Mr. Jeffrey Collier is a prisoner in the El Dorado Correctional Facility in El Dorado, Kansas. One day at lunch, he did not receive the full portion of meat to which he believed he was entitled (one hot dog rather than two). Feeling wronged, he threw a temper tantrum by kicking and screaming, which put him into a pickle with the prison authorities. Whining over his wiener failed to secure Mr. Collier a second hot dog, but it did get him ten days in disciplinary segregation and a ten-dollar fine. Red hot, Mr. Collier filed a civil rights complaint in the district court, pursuant to 42 U.S.C. § 1983.

Mr. Collier’s complaint stated three claims. The district court quickly dismissed two of the claims - alleged violations of his constitutional right to be free from cruel and unusual punishment and double jeopardy. Sandwiched between these two meritless claims, however, was a claim for denial of procedural due process, which the district court did not dismiss outright. Suspecting Mr. Collier could not go forward with his procedural due process claim because of Heck v. Humphrey , 512 U.S. 477 (1994), the district court afforded him an opportunity to show why the claim should not be dismissed. Mr. Collier was unable to make such a showing, and the district court dismissed the claim for being premature.

Mr. Collier appeals the district court’s decisions to this court. While this court does not relish the idea of prisoners going hungry, Mr. Collier’s first and third claims do not have any legal merit for the reasons provided by the district court in its two orders: the withholding of one hot dog is not “sufficiently serious” to rise to the level of an Eighth Amendment violation, see Farmer v. Brennan , 511 U.S. 825, 834 (1994); and the denial of one hot dog is not punishment for Double Jeopardy purposes.

…

FindLaw

By my count, there are five hot dog word associations — some of the cleverest legal writing since Justice Frankfurter was on the Supreme Court.

The Nine

No, not baseball. It’s the title of Jeffrey Toobin’s new book: The Nine: Inside the Secret World of the Supreme Court.

David Margolick has the review in The New York Times. His summary:

So, not surprisingly, “The Nine” is engaging, erudite, candid and accessible, often hard to put down. Toobin is a natural storyteller, and the stories he tells — how a coalition of centrist justices saved Roe v. Wade; why Rehnquist, despite having loathed the rights granted to criminal suspects by Miranda v. Arizona, eventually declined to overturn the decision; how right-wing firebrands deep-sixed the Supreme Court candidacies of Alberto Gonzales and Harriet Miers — are gripping. But its greatest surprise is that there are few great surprises. Toobin writes about the court more fluidly and fluently than anyone, but his buddies on the bench didn’t tell him much we don’t already know.

Here’s the “first chapter” of The Nine.

Emily Bazelon and Dahlia Lithwick review the reviewers of Toobin’s book.

U.S. Senator Gets Flushed

The Smoking Gun has U.S. Senator Larry Craig’s arrest report.

But I’m thinking that unless soliciting sex in an airport men’s room is treason (and who knows, these days), or a felony (which it is not), Craig should not have been arrested.

Article I, Section 6 of the U.S. Consitution: “They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.” [italics added]

Well, maybe it is “breach of the peace.”

The thought of sex, of any kind, in an airport men’s room chills my blood. I don’t even like going in there wearing sandals.

As for Senator Craig, I really don’t care what he does. I do care if he is a lying hypocrite.

But maybe I just don’t understand. Perhaps this explanation from Jesus’ General last October is a more generous take:

And then there are the reports that Sen. Larry Craig is homosexual. I don’t believe a word of it. Sure, maybe it’s true that some guy put his little soldier into the senator’s mouth a couple of times in train station restrooms, but that doesn’t mean Craig’s a homosexual.

Being a woman, you might not know this, but that kind of thing happens all of the time to good, Godly, heterosexual men, sometimes as often as four or five times a week. You’ll be crawling on the restroom floor, looking for something you dropped when you had your pants down and, bam, somebody will accidentally stick his little soldier into your mouth. Of course, you’ll naturally mistake it for a cigar and puff on it for awhile before it starts to taste funny, but it’s all very innocent. I’m sure that’s what happened to Sen. Craig.

This Isn’t Right

A New Jersey appellate court yesterday upheld the principle that convictions for driving under the influence of alcohol (DUI) can be imposed on individuals who were not driving. David Montalvo, 36, found this out as he responsibly tried to sleep off his intoxication in his GMC pickup truck while safely stopped in the parking lot of the Market Place Deli on a cold February morning last year.

The Newspaper

Follow the link, of course, for more details, but this just doesn’t seem right to me. If he was arrested for public intoxication, that would be one thing, but DUI while you’re not driving?

21

In New Mexico, until you are 21 your driver’s license is vertical (”portrait” in computer talk). Once you turn 21 you can trade it in for the normal horizontal license adults receive (”landscape”).

I’ve been told that some establishments refuse service to anyone who does not have the horizontal license. That is, even after you turn 21, if you haven’t gone to MVD and gotten a new DL, they won’t admit you or serve you. If you don’t head over to MVD on your 21st birthday, you could be turned away from your own celebration.

I guess a private establishment is entitled to set its own rules if the rules are in fact administered across the board with no exceptions. But this sounds a little like a class action lawsuit in waiting to me.

Did you know?

“Happy Birthday to You” is copyright protected through 2030. The rights are owned by Time Warner and it brings in around $2 million a year.

If you sing it in public without permission (which means paying Time Warner for the privilege), it’s a copyright violation.

I wonder if I could get a job as a copyright bounty hunter. You know, hang out at Chucky Cheese and similar places, and when the kids all sing “Happy Birthday” demand payment for Time Warner and then get a percentage.

Race

At Slate Magazine there’s an edifying and somewhat thought provoking discussion of Thursday’s school integration Supreme Court decision by Walter Dellinger, Dahlia Lithwick, and Stuart Taylor Jr. It’s up to seven parts at this writing, but each is brief and worthy of your time.

The opinion itself is here. [pdf]

——–

Follow my thinking for a minute.

Race is a bogus construct biologically. It is still, however, a sociological construct of some power.

So, my question is, how do we eliminate the latter now that we understand there is no basis for the former?

It seems to me that assigning children to a school on account of race — whatever the motive — perpetuates the racial distinction, a distinction that doesn’t exist in nature.

So, maybe, the Court got it right — whatever the legal issues, and despite the fact that Roberts, Scalia, Thomas and Alito are moral peasants. (I’m giving Kennedy, the waffler, a little benefit of the doubt, deserved or otherwise. He actually might be the most reprehensible of the five.)

Maybe this decision will force society — and right-minded school districts — to find means to correct socio-economic issues in our society without relying on the age-old racial distinctions that have brought about so much of the inequality to begin with.

——–

Walter Dellinger has a different point of view.