May It Please The Court: Weblog of legal news and observations, including a quote of the day and daily updates

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Quote of the Day - For most of history, Anonymous was a woman. - Virginia Wolff
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There are 2033 Journal Items on 255 page(s) and you are on page number 163

Newsweek: Anonymously Reporting The News?

Newsweek has had a bit of an accountability problem lately. Regardless of the weekly magazine's demands of others for accountability, it still attempts to rely on anonymous sources.

Let's take a look at it from a legal perspective. I wouldn't stand a snowball's chance in hell in winning a case if I relied on an anonymous source for testimony. Can any lawyer rely on anonymous sources? Sure.

Prosecutors.

But even they're restricted. Sometimes search warrants will issue, sometimes not. Judges evaluate the prosecutors' reliance on anonymous sources before the deciding to grant the prosecutors' request for a search warrant. The key, however, is the system of checks and balances, a key missing from the fourth estate.

There are no such restrictions, apparently. The issue with the lack of any system of checks and balances in the media is troublesome. Our basic foundation for government rests solidly on those two precepts.

So why won't journalists create checks and balances? Would we get better news if reporters' stories that relied on anonymous sources had to be vetted by an independent evaluator?

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Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Tuesday, May 17, 2005 at 22:41. Comments Closed (0) |

Let The Merlot Flow

In light of today’s Supreme Court decision, wine lovers everywhere are raising their glasses to toast the impending opening of the floodgates of interstate wine shipments. My email box has been continually filling with news and special offers from wineries, retailers, and friends. Many just excited with the possibilities and others looking to ship to the new-promised lands as soon as tomorrow (although I think that may be jumping the gun).

The ruling prohibits from discriminating against out-of-state shipments to consumers. However, the ruling itself does not actually force states to allow out-of-state shipments. It limits itself to preventing states from enforcing different standards between intrastate and interstate shipments. Presumably, a state could choose to ban both types of shipments and be in line with the law. My guess is that the majority of states will elect to open their borders, just as Texas did days ago.

Having worked in the wine business for a small producer, I couldn’t be happier with the Court’s decision. The ugly maze of states in which we could directly ship and those that were verboten was staggering and in a constant state of flux. Hopefully, this ruling will encourage states which have previously forbidden out-of-state shipments to open their borders rather than eliminate intrastate shipping as well. After all, there are now commercial wineries in all 50 states and for many of the smallest wineries in less-known states, if intrastate shipments are prohibited in order to avoid allowing interstate shipments, many of these wineries are likely to fold. It certainly wouldn’t be a popular position in the state house to tell your constituents that they can no longer ship their wines from Long Island to Manhattan just to keep California wineries from shipping their wines directly to Park Avenue.

So tonight, raise your glass, toast the Commerce Clause and think about the wonderful world of wine that the Supreme Court has opened up to you!

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Printer friendly page Permalink Email to a friend Posted by Michel J. Ayer on Monday, May 16, 2005 at 19:08. Comments Closed (0) |

All Others Pay Cash

You've seen the emails. Almost spam, but they're most likely from a well-meaning friend who cites all of the places that you can see the terms "In God We Trust," perhaps in favor, perhaps against.

Apart from my father's profession as a minister, it doesn't matter to me. But it does matter to the Fourth Circuit. They decided that a County building in North Carolina could still display the phrase above the doorway.

The Court determined that the phrase is not an unconstitutional infringement of the mandate separating church and state. The three-judge panel thought the term was more patriotic rather than religious.

Will this case head to the Supreme Court? Maybe not. The Supreme Court is more likely to make a preemptive ruling. They decided to hear two of the Ten Commandments cases, and those decisions will come first. Once we know the ruling in those cases, we may know whether this Country's government still trusts in God.

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Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Sunday, May 15, 2005 at 23:23. Comments Closed (0) |

Contest: What Makes America Great?

If no one brought a gun into a courthouse, then would there be any need to carry heat?

If politicians wouldn't blame so-called "activist judges," then would people be incited to act against the judiciary?

These are tough questions that demand tough answers.

Let's look at it from the basics. Government was formed by the people and for the people. The Constitution created three separate, but equal, branches of government.

One of those branches was deemed independent of the other two. Here's what the Constitution provides: the judiciary is accountable to the political branches by giving the political branches the powers to nominate and confirm federal judges and impeach and remove federal judges for high crimes and misdemeanors.

That's it. Plain and simple. Sure, there are some other checks and balances such as funding and overseeing court operations, but beyond that, the judiciary is independent. There is only one way to get a federal judge out of office.

Congress and its members have tried to change that independence, not only legislatively, but also politically.

Sure, judges issue unpopular decisions. Let's look at a few:

Dred Scott

Plessy v. Ferguson

Grovey v. Townsend

Brown v. Board of Education (overruled Plessy v. Ferguson and ended segregation)

Engel v. Vitale

Gideon v. Wainright

New York Times v. Sullivan

Griswold v. Connecticut

Miranda v. Arizona

U.S. v. O'Brien

Tinker v. Des Moines Independent Community School District

Branzburg v. Hayes

Roe v. Wade

U.S. v. Lopez

You can skip through those opinions and get a flavor for the intensity of the issues on both sides of the coin. We all disagree with some of those decisions. Each of these historical decisions were very unpopular at the time they were issued. Decisions that are being made today are equally unpopular.

That's my point. We now take the results of these decisions for granted. Who doesn't know their Miranda rights?

Without independence, judges are not free to decide the issues as they see them. Even the judiciary disagrees with itself (Brown v. Board of Education overruled Plessy v. Ferguson) on occasion.

But if we allow politicians, religious leaders, atheists, liberals, conservatives, democrats, republicans, mothers, fathers and even you and me to interfere with that independence, we don't have a Constitution.

That's what makes America great. Let's keep it that way, and let the judicial system do its job - the job they were assigned under the Constitution.

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Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Saturday, May 14, 2005 at 10:35. Comments Closed (0) |

Globalization And The World's Game

With finals over and summer school not yet in session, I have finally had a chance to catch up on some much needed rest as well as the news from around the globe. For those who have read my posts before, you know that I am a big sports fan and nothing could be bigger than my love for soccer. I enjoy both playing and watching a match whenever possible so it was with great interest that I see that Malcolm Glazer has increased his bid for a controlling share in Manchester United, of the English Premier League, arguably the most famous club in all of sports. We’re talking on the level of the Lakers, Yankees, and Dallas Cowboys all rolled into one. The proposed takeover is fascinating both from the fan and business standpoints.

The takeover bid fascinates me because of the adamant opposition from the United faithful. Perhaps the fans see something in Glazer that I don’t (and I probably don’t as an Arsenal supporter) that makes them especially apprehensive. The supporters express concern that he has no “football” knowledge and that all he cares about is the mighty marketing dollars that the club generates. I would also guess its a big hit to the ego that an American would control the team.

It may be true that Glazer lacks “football” knowledge, but I urge the United Fans to look at his track record with the Tampa Bay Buccaneers. Prior to Glazer’s ownership, the Bucs were perennial losers in the NFL. After his purchase, Tampa Bay won its first Super Bowl. Glazer accomplished this feat by hiring people that know the game to take care of on-the-field decisions and investing in players. He didn’t make himself head coach or starting quarterback. If the team hadn’t won, would it have been a good investment? No, winners make money and Glazer is a smart guy who likes to make money. After all, I doubt the United investment is a $1.5 billion dollar hobby horse. If Manchester United doesn’t win, his investment doesn’t perform and the ever-growing Manchester United fan base stalls. My bet? Glazer hires the best coaches and players available so that he produces a winner. Not to mention he has only to raise this team from a third-place finish this year and not the bottom of the table (although to United Fans, third place behind Chelsea and Arsenal might as well be last place).

As for an American grabbing control of the most famous English club in the world, how is it different from the line-up that the team currently fields? The squad includes an American, Argentine, Dutchman, Frenchman, and Norwegian, among other nationalities. The players were chosen not based on their nationality but on their ability to win. There is no reason to think that Glazer thinks of anything but winning even if he is from this side of the pond. If the United supporters need any more reassurance, they need only look at Chelsea and their billionaire Russian owner.

If my German car is assembled in South Carolina, what’s wrong with my British football being assembled by an American?

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Printer friendly page Permalink Email to a friend Posted by Michel J. Ayer on Friday, May 13, 2005 at 13:15. Comments Closed (0) |

An Unbearable Copyright: Coverage For Clothes

Much as designers may like, the U.S. Copyright Office won't issue copyrights for useful articles. High on the list of useful articles is clothing.

For one company, copyrighting clothing is very important - for stuffed bears.

How do they avoid the "useful article" designation? Well, most people don't consider toys "useful," so presumably, clothing for toys isn't "useful" either.

At least that's the determination made by Judge Christopher Conner in the Boyd's bears lawsuit against one of its competitors, The Bearington Collection. According to Boyd's, Bearington was copying the clothing designs used on the Boyd's bears. Bearington argued that since the USPTO wouldn't issue copyrights for clothing, it could copy the clothes used on Boyd's bears.

Judge Conner disagreed (for a second time), ruling in favor of Boyd's, and against Bearington. But the ruling isn't one that everyone can rely on. Judge Conner said we'd have to look at whether clothing was useful on a "case-by-case" basis. As he said at the very end of his opinion, "clothing for copyrighted bears doesn't ... serve any useful purpose ... it is not a useful article."

Just don't tell Barbie. She's wearing Benneton this year.

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Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Thursday, May 12, 2005 at 23:37. Comments Closed (0) |

Step Right Up And Win A Big Prize As A State Employee

How would you like to get a grant for 90% of the cost to build your house? Or, perhaps somewhat more likely, plant your garden? Well, don't get too excited. It's not really likely at all.

Unless, that is, you own land. Lots of land. With trees on it. That need management.

Management?

Let me first get my biases out of the way. I was born on the East coast, grew up and went to high school on the East Coast, college on the East coast, and worked on the East coast. There, trees just grow. They don't need "management." But, as a transplant to California, I've learned that things are a bit different out here.

Here, apparently, trees need to be managed. In fact, they need so much management that the State will pay up to 90% of the cost to manage trees on private land.

What a boondoggle! Let's rush out and buy land with trees on it so we can get paid, too.

Admittedly, not too many people know about this deal, and frankly I wouldn't have either, except that a state employee applied for the grant, and the Department of Forestry, bless their hearts, asked the Attorney General if they could give the money to a state employee (see Opinion 04-701, to be posted soon).

The AG ruled yes, the state could give money to a state employee to manage trees. The AG noted that the landowner / state employee has no official involvement in evaluating and awarding grant applications and is not employed by the department, and none of his work affects the Department of Forestry.

I thought the rule would be something like entering a sweepstakes - employees of the company aren't eligible.

What was I thinking? It's the State of California Sweepstakes!

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Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Wednesday, May 11, 2005 at 22:19. Comments Closed (0) |

Reach Down And Stretch That Statute Of Limitations

Today, the Court of Appeal for the Second District streeeetched the statute of limitations to sue insurance companies.

Under California Insurance Code section 2071 (standard fire insurance form), homeowners have twelve months to bring suit against an insurance carrier after denial of a claim. Some homeowners got an additional extension under California Code of Civil Procedure section 340.9 (the Northridge Earthquake statute of limitations revival).

The Court of Appeal decided the legislature's extension wasn't good enough. They invoked the doctrine of equitable estoppel (yes, I know it's an Australian definition, but it was pretty good) to allow homeowners to bring suit against their insurance carriers arising out of the earthquake, now some 11 years ago. Why you may ask?

The Plaintiff essentially lost the value of her house. 21st Century paid her $5255.48 under her "other structures" coverage, and then following a reinspection of the property, 21st Century paid an additional $1950.

Regular readers know I don't quote at length from cases. But this one's worth a read, and will explain exactly why Courts grant the kind of relief sought. Here's the Court's take:

"The legislative record shows section 340.9 was enacted in response to 'reports of rampant mishandling of insurance claims by insurers.' The author of the legislation claimed following the devastation caused by the Northridge quake many victims were devastated a second time when their insurance companies denied or low-balled their claims for compensation. And '[w]hen homeowners complained to the Department of Insurance to obtain relief, the department afforded no help.' The Legislature received reports insurers 'engaged in a systematic program of misleading consumers about the nature and extent of damage to their homes' and, when the deceived homeowners learned the true extent of their damage, 'the insurers simply refused to pay claims on the basis that the claims had become time-barred.' The legislation's author was quoted as stating 'the one-year statute of limitations that is current law under Insurance Code section 2071 has barred victims from being fairly compensated for their losses . . . [because they] were misled about the extent of damage done as a result of the earthquake.' A Senate analysis of the legislation cited news accounts stating '[m]any victims . . . have received only partial settlements for their earthquake claims, and others have received no compensation at all, having been improperly told that the damage they suffered was below policy deductibles.' In subsequent years, when the victims tried to present newly discovered evidence of damage to their insurers, insurers 'stonewalled claims, leaving homes, condominiums, and apartment buildings in shambles and homeowners without any recourse.'"

(Cordova v. 21st Century Insurance Co. 2005 DJDAR 5285 May 9, 2005, footnotes omitted).

Think we have activist judges on our hands? Or judges that are interested in dispensing justice?

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Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Monday, May 09, 2005 at 20:33. Comments Closed (0) |



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