Category: Legal Issues

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.

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.

Line a Lawyer Doesn’t Want to Hear

“At one point, [Ninth Circuit Chief Judge Alex] Kozinski offered to loan [attorney Eileen] GilBride his copy of a brief in the case, since she hadn’t brought it to court. When she conceded not being aware of something in the brief, Kozinski closed in: Coming to court without the briefs is ‘poor’ form, he said, ‘but not knowing what’s in the briefs is really worse.'”

Law.Com

More Harry Morgan

“No one can truly understand American law—where it was and where it is—without reading the drama Inherit The Wind and seeing the 1960 movie. In this sense, on an historical level as much as a cultural one, it is like Harper Lee’s To Kill A Mockingbird. It’s epic and true, and more than the sum of its parts. And Morgan was at the center of it all.

Andrew Cohen – The Atlantic

Ken Levine “asked Gary Burghoff if we would like to reflect on the passing of Harry Morgan. He sent me this beautiful response …”

The 14th Amendment

… to the United States Constitution was ratified on this date in 1868. The amendment reads:

Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section. 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section. 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section. 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

WTF story of the day

“A teenage girl who was dropped from her high school’s cheerleading squad after refusing to chant the name of a basketball player who had sexually assaulted her must pay compensation of $45,000 (£27,300) after losing a legal challenge against the decision.”

The Independent has the story

Best legal information you may need to know line of the day

“In 12 states—California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington—all parties involved need to consent before one of them can record the conversation.”

Christopher Beam – Slate Magazine

Up to 3-years in prison in Illinois for a first offense of recording a conversation with a police officer. It’s a crime in Boston, too.

Best line of the other day

In the settlement approved [October 18] by a federal judge in Manhattan, the federal government acknowledges that there are no federal laws or regulations that prohibit photography outside federal courthouses. It agreed to provide federal officers written instructions emphasizing the public’s right to photograph and record outside federal courthouses. The settlement has even broader implications, though.

“Not only will this settlement end harassment of photographers outside federal courthouses, it will free people to photograph and film outside of all federal buildings,” said NYCLU Associate Legal Director Christopher Dunn, lead counsel in the case. “The regulation at issue in this case applies to all federal buildings, not only courthouses, so this settlement should extend to photography near all federal buildings nationwide.

American Civil Liberties Union of New York State

Thanks to Mike &erson for sending along the link and a related Something His Camera Sees.

Best line of the day, so far

“Those who like to believe they have picked themselves up by the bootstraps sometimes forget that they wouldn’t even have boots were it not for the women who came before.”

From The Mother of All Grizzlies about Justice Ruth Bader Ginsburg by Dahlia Lithwick. An excerpt:

To which I would just add that Palin and the Mama Grizzlies also owe a debt of thanks directly to Ruth Bader Ginsburg, who almost single-handedly convinced the courts and legislatures to do away with gender classifications in matters ranging from a woman’s right to be executor of her son’s estate (Reed v. Reed, 1970), to a female Air Force lieutenant’s right to secure housing allowances and medical benefits for her husband (Frontiero v. Richardson, 1973), and the right of Oklahoma’s “thirsty boys” (her words) to buy beer at the Honk n’ Holler at the same age as young women (Craig v. Boren, 1976).

The Right to Counsel

The New York Times has a fascinating read about a woman and her public defender.

The story of this one defendant and her public defender, assembled through interviews and court records, is about a woman who was barely making it before the legal system helped shove her off track.

And it is also about a small-town lawyer and part-time public servant sinking in personal and professional quicksand that few people knew about when he showed up to represent Kimberly Hurell-Harring. Least of all her.

Increasing the odds

You go into a New Mexico Indian casino in 2006 and play a progressive slot machine; one with a very big prize, say $1.6 million dollars. Amazingly, you win.

But the casino says, oh sorry, the slot machine malfunctioned. You only won $400.

You appeal to the tribe’s gaming commission. They deny your claim; the slot machine malfunctioned.

You want “your” $1.6 million, so you file suit in state court. But Indian tribes have sovereign immunity. You can’t sue an Indian tribe. Case dismissed; the court has no jurisdiction.

You appeal to a higher court. In January 2010 the appeals court affirms the lower court’s dismissal. You can’t sue an Indian tribe.

Moral of the story: The house always wins.

The above is a very brief version of a true incident. Meanwhile last July another individual “won” $2.5 million on a slot machine at another New Mexico casino. Guess what? Her slot machine malfunctioned, too.

Chinese to launch first ever green lawsuit against government

NewMexiKen is taking the day off to celebrate the blog’s sixth anniversary.
The posts today are being written by readers just like you. This is from Bob Ormond.

China should see its first lawsuit by an environmental group against authorities within weeks, state media reported today (July 31).

A member of the All-China Environmental Federation – which is backed by the central government – said a judge in Guizhou province had accepted its claim on behalf of residents who complain they have suffered from pollution.

The Guardian

July 21st ought to be a national holiday

On July 21, 1959, Judge Bryan ruled in favor of Grove Press and ordered the Post Office to lift all restrictions on sending copies of “Lady Chatterley’s Lover” through the mail. This, in effect, marked the end of the Post Office’s authority — which, until then, it held absolutely — to declare a work of literature “obscene” or to impound copies of those works or prosecute their publishers. This wasn’t exactly the end of obscenity as a criminal category. Into the mid-1960s, Barney Rosset would wage battles in various state courts over William Burroughs’s “Naked Lunch” and Henry Miller’s “Tropic of Cancer,” other Grove novels now widely regarded as classics. But the “Chatterley” case established the principle that allowed free speech its total victory.

Excerpt from Fred Kaplan, “The Day Obscenity Became Art” – NYTimes.com.

A holiday not because of Lawrence’s book, but to celebrate the expansion of freedom this decision represented.

Search me

The Supreme Court says you can’t strip search a 13-year-old just because you have reason to believe she might have a couple of advil.

Well, eight-ninths of the Court says you can’t. Justice Thomas says it sounds like a reasonable search to him.

Suing to play

A student at my high school alma mater is suing to be allowed to play sports.

In a complaint filed last week, Steven Erly asked the Arizona Interscholastic Association to allow him to participate in sports even though he will be 19 when the school year begins.

The state’s high school sports and activities governing body states that players who turn 19 before Sept. 1 cannot compete during that school year.

According to the story in the Arizona Daily Star, Erly was ill and unable to play sports — or even to attend school full-time — during the 2006-2008 school years. He wants the opportunity he lost. He is suing under the Americans with Disabilities and Arizonans with Disabilities acts.

What do you think? How much accommodation should we make?

Chrysler and GM and accidents yet-to-be

Under the terms of the rescue, NewChrysler would be freed of current and future lawsuits seeking money damages for injury (or death) caused by cars or trucks that were sold by “old” Chrysler before the sale deal took effect.  Millions of those cars, oif course, are still on the road.

If that provision remained intact, there is almost no doubt that it would be repeated in any deal to spare bankrupt General Motors Corp. from existing and future accident claims, thus affecting millions more cars and trucks now in use.

Keeping the victims from suing, their lawyers argue, is not only beyond the power of a bankruptcy court, but raises “an important constitutional issue” about cutting off legal rights of people who, as of now, have no idea that they may someday be hurt in an auto crash.

SCOTUSblog has more. Interesting look at due process.

A lawsuit to relish

It seems Sara Lee is red hot at Kraft. Sara Lee makes Ball Park franks; Kraft owns Oscar Mayer.

According to the Chicago Tribune here’s the beef:

The Sara Lee suit, filed in U.S. District Court in Chicago, says the ad is false and misleading because in large type it implies one Oscar Mayer dog bested the taste of all Ball Park dogs. But the footnote, “in very small type,” says that Oscar Mayer compared its hot dogs to “the leading beef franks” of its main rivals.

The suit also claims Oscar Mayer’s contention that its Jumbo Beef franks are “100 percent pure beef” is false because they contain a host of other ingredients. Sara Lee says Oscar Mayer has rejected requests to drop its 100 percent pure beef claims.

The case law that applies may have been written by Justice Felix Frankfurter.

With apologies to official oldest child Ken.

The Supreme Court is neither hot nor bothered by strip searches

Dahlia Lithwick has a must read piece on how the Supreme Court takes failing to get it to a new level.

She begins:

When constitutional historians sit down someday to compile the definitive Supreme Court Concordance of Not Getting It, the entry directly next to Lilly Ledbetter (“Court fails utterly to understand realities of gender pay discrimination”) will be Savana Redding (“Court compares strip searches of 13-year-old girls to American Pie-style locker-room hijinks”).

The 14th amendment

… to the United States Constitution was ratified on this date in 1868. The first section of the amendment reads:

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

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.