The New York Times website has the situation with Roman Polanski on their "Room for Debate" blog on their website, and has opinions from a lot of interesting people.
Wednesday, September 30, 2009
Interesting Thoughts on Polanski
In 2007, New York Govenor Spitzer signed a law requiring airlines to provide food, water, adequate toilets and ventilation to flights that were delayed longer than three hours. This was a result of passengers of several different flights being stuck on an a delayed airplane for up to six or ten hours with overflowing toilets and no food or water. The airlines did not want this law so they brought suit against the state. The law was reversed stating that only the federal government can regulate the airlines under federal preemption. This was from an article in Sunday's Union Tribune as well as many articles on the internet.
Monday, September 28, 2009
Heart of Atlanta Motel - Civil Rights Act 1964
Decided December 14, 1964
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA.
MR. JUSTICE CLARK delivered the opinion of the Court.
MR. JUSTICE GOLDBERG, concurring.
MR. JUSTICE DOUGLAS, concurring.
MR. JUSTICE BLACK, concurring.
Appellant, the owner of a large motel in Atlanta, Georgia, which restricts its clientele to white persons, three-fourths of whom are transient interstate travelers, sued for declaratory relief and to enjoin enforcement of the Civil Rights Act of 1964, contending that the prohibition of racial discrimination in places of public accommodation affecting commerce exceeded Congress' powers under the Commerce Clause and violated other parts of the Constitution. A three-judge District Court upheld the constitutionality of Title II, §§ 201 (a), (b)(1) and (c)(1), the provisions attacked, and on appellees' counterclaim permanently enjoined appellant from refusing to accommodate Negro guests for racial reasons. Held:
1. Title II of the Civil Rights Act of 1964 is a valid exercise of Congress' power under the Commerce Clause as applied to a place of public accommodation serving interstate travelers. Civil Rights Cases, 109 U.S. 3, distinguished. Pp. 249-262.
(a) The interstate movement of persons is "commerce" which concerns more than one State. Pp. 255-256.
(b) The protection of interstate commerce is within the regulatory power of Congress under the Commerce Clause whether or not the transportation of persons between States is "commercial." P. 256.
(c) Congress' action in removing the disruptive effect which it found racial discrimination has on interstate travel is not invalidated because Congress was also legislating against what it considered to be moral wrongs. P. 257.
(d) Congress had power to enact appropriate legislation with regard to a place of public accommodation such as appellant's motel even if it is assumed to be of a purely "local" character, as Congress' power over interstate commerce extends to the regulation of local incidents thereof which might have a substantial and harmful effect upon that commerce. P. 258.
(2) The prohibition in Title II of racial discrimination in public accommodations affecting commerce does not violate the Fifth Amendment as being a deprivation of property or liberty without due process of law. Pp. 258-261.(3) Such prohibition does not violate the Thirteenth Amendment as being "involuntary servitude." P. 261.
Full Case - Morrison - Commerce Clause
UNITED STATES, PETITIONER
CHRISTY BRZONKALA, PETITIONER
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
Justice Breyer, with whom Justice Stevens joins, and with whom Justice Souter and Justice Ginsburg join as to Part I—A, dissenting.
No one denies the importance of the Constitution’s federalist principles. Its state/federal division of authority protects liberty–both by restricting the burdens that government can impose from a distance and by facilitating citizen participation in government that is closer to home. The question is how the judiciary can best implement that original federalist understanding where the Commerce Clause is at issue.
I
The majority holds that the federal commerce power does not extend to such “noneconomic” activities as “noneconomic, violent criminal conduct” that significantly affects interstate commerce only if we “aggregate” the interstate “effect[s]” of individual instances. Ante, at 17—18. Justice Souter explains why history, precedent, and
legal logic militate against the majority’s approach. I agree and join his opinion. I add that the majority’s holding illustrates the difficulty of finding a workable judicial Commerce Clause touchstone–a set of comprehensible interpretive rules that courts might use to impose some meaningful limit, but not too great a limit, upon the scope of the legislative authority that the Commerce Clause delegates to Congress.
A
Consider the problems. The “economic/noneconomic” distinction is not easy to apply. Does the local street corner mugger engage in “economic” activity or “noneconomic” activity when he mugs for money? See Perez v. United States, 402 U.S. 146 (1971) (aggregating local “loan sharking” instances); United States v. Lopez, 514 U.S. 549, 559 (1995) (loan sharking is economic because it consists of “intrastate extortionate credit transactions”); ante, at 9. Would evidence that desire for economic domination underlies many brutal crimes against women save the present statute? See United States General Accounting Office, Health, Education, and Human Services Division, Domestic Violence: Prevalence and Implications for Employment Among Welfare Recipients 7—8 (Nov. 1998); Brief for Equal Rights Advocates, et al. as Amicus Curiae 10—12.
The line becomes yet harder to draw given the need for exceptions. The Court itself would permit Congress to aggregate, hence regulate, “noneconomic” activity taking place at economic establishments. See Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964) (upholding civil rights laws forbidding discrimination at local motels); Katzenbach v. McClung, 379 U.S. 294 (1964) (same for restaurants); Lopez, supra, at 559 (recognizing congressional power to aggregate, hence forbid, noneconomically motivated discrimination at public accommodations); ante,
at 9—10 (same). And it would permit Congress to regulate where that regulation is “an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.” Lopez, supra, at 561; cf. Controlled Substances Act, 21 U.S.C. § 801 et seq. (regulating drugs produced for home consumption). Given the former exception, can Congress simply rewrite the present law and limit its application to restaurants, hotels, perhaps universities, and other places of public accommodation? Given the latter exception, can Congress save the present law by including it, or much of it, in a broader “Safe Transport” or “Workplace Safety” act?
More important, why should we give critical constitutional importance to the economic, or noneconomic, nature of an interstate-commerce-affecting cause? If chemical emanations through indirect environmental change cause identical, severe commercial harm outside a State, why should it matter whether local factories or home fireplaces release them? The Constitution itself refers only to Congress’ power to “regulate Commerce . . . among the several States,” and to make laws “necessary and proper” to implement that power. Art. I, §8, cls. 3, 18. The language says nothing about either the local nature, or the economic nature, of an interstate-commerce-affecting cause.
This Court has long held that only the interstate commercial effects, not the local nature of the cause, are constitutionally relevant. See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 38—39 (1937) (focusing upon interstate effects); Wickard v. Filburn, 317 U.S. 111, 125 (1942) (aggregating interstate effects of wheat grown for home consumption); Heart of Atlanta Motel, supra, at 258 (“
Most important, the Court’s complex rules seem unlikely to help secure the very object that they seek, namely, the protection of “areas of traditional state regulation” from federal intrusion. Ante, at 15. The Court’s rules, even if broadly interpreted, are underinclusive. The local pickpocket is no less a traditional subject of state regulation than is the local gender-motivated assault. Regardless, the Court reaffirms, as it should, Congress’ well-established and frequently exercised power to enact laws that satisfy a commerce-related jurisdictional prerequisite–for example, that some item relevant to the federally regulated activity has at some time crossed a state line. Ante, at 8—9, 11, 13, and n. 5; Lopez, supra, at 558; Heart of Atlanta Motel, supra, at 256 (“
And in a world where most everyday products or their component parts cross interstate boundaries, Congress will frequently find it possible to redraft a statute using language that ties the regulation to the interstate movement of some relevant object, thereby regulating local criminal activity or, for that matter, family affairs. See, e.g., Child Support Recovery Act of 1992, 18 U.S.C. § 228. Although this possibility does not give the Federal Government the power to regulate everything, it means that any substantive limitation will apply randomly in terms of the interests the majority seeks to protect. How much would be gained, for example, were Congress to reenact the present law in the form of “An Act Forbidding Violence Against Women Perpetrated at Public Accommodations or by Those Who Have Moved in, or through the Use of Items that Have Moved in, Interstate Commerce”? Complex Commerce Clause rules creating fine distinctions that achieve only random results do little to further the important federalist interests that called them into being. That is why modern (pre-Lopez) case law rejected them. See Wickard, supra, at 120; United States v. Darby, 312 U.S. 100, 116—117 (1941); Jones & Laughlin Steel Corp., supra, at 37.
The majority, aware of these difficulties, is nonetheless concerned with what it sees as an important contrary consideration. To determine the lawfulness of statutes simply by asking whether Congress could reasonably have found that aggregated local instances significantly affect interstate commerce will allow Congress to regulate almost anything. Virtually all local activity, when instances are aggregated, can have “substantial effects on employment, production, transit, or consumption.” Hence Congress could “regulate any crime,” and perhaps “marriage, divorce, and childrearing” as well, obliterating the “Constitution’s distinction between national and local authority.” Ante, at 15; Lopez, 514 U.S., at 558; cf. A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 548 (1935) (need for distinction between “direct” and “indirect” effects lest there “be virtually no limit to the federal power”); Hammer v. Dagenhart, 247 U.S. 251, 276 (1918) (similar observation).
This consideration, however, while serious, does not reflect a jurisprudential defect, so much as it reflects a practical reality. We live in a Nation knit together by two centuries of scientific, technological, commercial, and environmental change. Those changes, taken together, mean that virtually every kind of activity, no matter how local, genuinely can affect commerce, or its conditions, outside the State–at least when considered in the aggregate. Heart of Atlanta Motel, 379 U.S., at 251. And that fact makes it close to impossible for courts to develop meaningful subject-matter categories that would exclude some kinds of local activities from ordinary Commerce Clause “aggregation” rules without, at the same time, depriving Congress of the power to regulate activities that have a genuine and important effect upon interstate commerce.
Since judges cannot change the world, the “defect” means that, within the bounds of the rational, Congress, not the courts, must remain primarily responsible for striking the appropriate state/federal balance. Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 552 (1985); ante, at 19—24 (Souter, J., dissenting); Kimel v. Florida Bd. of Regents, 528 U.S. , (2000) (slip op., at 2) (Stevens, J., dissenting) (Framers designed important structural safeguards to ensure that, when Congress legislates, “the normal operation of the legislative process itself would adequately defend state interests from undue infringement”); see also Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 Colum. L. Rev. 215 (2000) (focusing on role of political process and political parties in protecting state interests). Congress is institutionally motivated to do so. Its Members represent state and local district interests. They consider the views of state and local officials when they legislate, and they have even developed formal procedures to ensure that such consideration takes place. See, e.g., Unfunded Mandates Reform Act of 1995, Pub. L. 104—4, 109 Stat. 48 (codified in scattered sections of 2 U.S.C.). Moreover, Congress often can better reflect state concerns for autonomy in the details of sophisticated statutory schemes than can the judiciary, which cannot easily gather the relevant facts and which must apply more general legal rules and categories. See, e.g., 42 U.S.C. § 7543(b) (Clean Air Act); 33 U.S.C. § 1251 et seq. (Clean Water Act); see also New York v. United States, 505 U.S. 144, 167—168 (1992) (collecting other examples of “cooperative federalism”). Not surprisingly, the bulk of American law is still state law, and overwhelmingly so.
B
I would also note that Congress, when it enacted the statute, followed procedures that help to protect the federalism values at stake. It provided adequate notice to the States of its intent to legislate in an “are[a] of traditional state regulation.” Ante, at 15. And in response, attorneys general in the overwhelming majority of States (38) supported congressional legislation, telling Congress that “[o]ur experience as Attorneys General strengthens our belief that the problem of violence against women is a national one, requiring federal attention, federal leadership, and federal funds.” Id., at 34—36; see also Violence
Against Women: Victims of the System, Hearing on S. 15 before the Senate Committee on the Judiciary, 102d Cong., 1st Sess., 37—38 (1991) (unanimous resolution of the National Association of Attorneys General); but cf. Crimes of Violence Motivated by Gender, Hearing before the Subcommittee on Civil and Constitutional Rights of the House Committee on the Judiciary, 103d Cong., 1st Sess., 77—84 (1993) (Conference of Chief Justices opposing legislation).
Moreover, as Justice Souter has pointed out, Congress compiled a “mountain of data” explicitly documenting the interstate commercial effects of gender-motivated crimes of violence. Ante, at 2—8, 27—28 (dissenting opinion). After considering alternatives, it focused the federal law upon documented deficiencies in state legal systems. And it tailored the law to prevent its use in certain areas of traditional state concern, such as divorce, alimony, or child custody. 42 U.S.C. § 13981(e)(4). Consequently, the law before us seems to represent an instance, not of state/federal conflict, but of state/federal efforts to cooperate in order to help solve a mutually acknowledged national problem. Cf. §§300w—10, 3796gg, 3796hh, 10409, 13931 (providing federal moneys to encourage state and local initiatives to combat gender-motivated violence).
I call attention to the legislative process leading up to enactment of this statute because, as the majority recognizes, ante, at 14, it far surpasses that which led to the enactment of the statute we considered in Lopez. And even were I to accept Lopez as an accurate statement of the law, which I do not, that distinction provides a possible basis for upholding the law here. This Court on occasion has pointed to the importance of procedural limitations in keeping the power of Congress in check. See Garcia, supra, at 554 (“Any substantive restraint on the exercise of Commerce Clause powers must find its justification in the procedural nature of this basic limitation, and it must be tailored to compensate for possible failings in the national political process rather than to dictate a ‘sacred province of state autonomy’
Commentators also have suggested that the thoroughness of legislative procedures–e.g., whether Congress took a “hard look”–might sometimes make a determinative difference in a Commerce Clause case, say when Congress legislates in an area of traditional state regulation. See, e.g., Jackson, Federalism and the Uses and Limits of Law: Printz and Principle?, 111 Harv. L. Rev. 2180, 2231—2245 (1998); Gardbaum, Rethinking Constitutional Federalism, 74 Texas L. Rev. 795, 812—828, 830—832 (1996); Lessig, Translating Federalism: United States v. Lopez, 1995 S. Ct. Rev. 125, 194—214 (1995); see also Treaty Establishing the European Community Art. 5; Bermann, Taking Subsidiarity Seriously: Federalism in the European Community and the United States, 94 Colum. L. Rev. 331, 378—403 (1994) (arguing for similar limitation in respect to somewhat analogous principle of subsidiarity for European Community); Gardbaum, supra, at 833—837 (applying subsidiarity principles to American federalism). Of course, any judicial insistence that Congress follow particular procedures might itself intrude upon congressional prerogatives and embody difficult definitional problems. But the intrusion, problems, and consequences all would seem less serious than those embodied in the majority’s approach. See supra, at 2—7.
I continue to agree with Justice Souter that the Court’s traditional “rational basis” approach is sufficient. Ante, at 1—2 (dissenting opinion); see also Lopez, 514 U.S., at 603—615 (Souter, J., dissenting); id., at 615—631 (Breyer, J., dissenting). But I recognize that the law in this area is unstable and that time and experience may demonstrate both the unworkability of the majority’s rules and the superiority of Congress’ own procedural approach–in which case the law may evolve towards a rule that, in certain difficult Commerce Clause cases, takes account of the thoroughness with which Congress has considered the federalism issue.
For these reasons, as well as those set forth by Justice Souter, this statute falls well within Congress’s Commerce Clause authority, and I dissent from the Court’s contrary conclusion.
II
Given my conclusion on the Commerce Clause question, I need not consider Congress’ authority under §5 of the Fourteenth Amendment. Nonetheless, I doubt the Court’s reasoning rejecting that source of authority. The Court points out that in United States v. Harris, 106 U.S. 629 (1883), and the Civil Rights Cases, 109 U.S. 3 (1883), the Court held that §5 does not authorize Congress to use the Fourteenth Amendment as a source of power to remedy the conduct of private persons. Ante, at 21—23. That is certainly so. The Federal Government’s argument, however, is that Congress used §5 to remedy the actions of state actors, namely, those States which, through discriminatory design or the discriminatory conduct of their officials, failed to provide adequate (or any) state remedies for women injured by gender-motivated violence–a failure that the States, and Congress, documented in depth. See ante, at 3—4, n. 7, 27—28 (Souter, J., dissenting) (collecting sources).
Neither Harris nor the Civil Rights Cases considered
this kind of claim. The Court in Harris specifically said that it treated the federal laws in question as “directed exclusively against the action of private persons, without reference to the laws of the State, or their administration by her officers.” 106 U.S., at 640 (emphasis added); see also Civil Rights Cases, 109 U.S., at 14 (observing that the statute did “not profess to be corrective of any constitutional wrong committed by the States” and that it established “rules for the conduct of individuals in society towards each other, … without referring in any manner to any supposed action of the State or its authorities”).
The Court responds directly to the relevant “state actor” claim by finding that the present law lacks “
But why can Congress not provide a remedy against private actors? Those private actors, of course, did not themselves violate the Constitution. But this Court has held that Congress at least sometimes can enact remedial “[l]egislation . . . [that] prohibits conduct which is not itself unconstitutional.” Flores, 521 U.S., at 518; see also Katzenbach v. Morgan, supra, at 651; South Carolina v. Katzenbach, supra, at 308. The statutory remedy does not in any sense purport to “determine what constitutes a constitutional violation.” Flores, supra, at 519. It intrudes little upon either States or private parties. It may lead state actors to improve their own remedial systems, primarily through example. It restricts private actors only by imposing liability for private conduct that is, in the main, already forbidden by state law. Why is the remedy “disproportionate”? And given the relation between remedy and violation–the creation of a federal remedy to substitute for constitutionally inadequate state remedies–where is the lack of “congruence”?
The majority adds that Congress found that the problem of inadequacy of state remedies “does not exist in all States, or even most States.” Ante, at 27. But Congress had before it the task force reports of at least 21 States documenting constitutional violations. And it made its own findings about pervasive gender-based stereotypes hampering many state legal systems, sometimes unconstitutionally so. See, e.g., S. Rep. No. 103—138, pp. 38, 41—42, 44—47 (1993); S. Rep. No. 102—197, pp. 39, 44—49 (1991); H. R. Conf. Rep. No. 103—711, p. 385 (1994). The record nowhere reveals a congressional finding that the problem “does not exist” elsewhere. Why can Congress not take the evidence before it as evidence of a national problem? This Court has not previously held that Congress must document the existence of a problem in every State prior to proposing a national solution. And the deference this Court gives to Congress’ chosen remedy under §5, Flores, supra, at 536, suggests that any such requirement would be inappropriate.
Despite my doubts about the majority’s §5 reasoning, I need not, and do not, answer the §5 question, which I would leave for more thorough analysis if necessary on another occasion. Rather, in my view, the Commerce Clause provides an adequate basis for the statute before us. And I would uphold its constitutionality as the “necessary and proper” exercise of legislative power granted to Congress by that Clause.
Wickard v. Filburn - Commerce Clause Art I Sec 8
Wickard v. Filburn
APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF OHIO
1. Pending a referendum vote of farmers upon wheat quotas proclaimed by the Secretary of Agriculture under the Agricultural Adjustment Act of 1938, the Secretary made a radio address in which he advocated approval of the quotas and called attention to the recent enactment by Congress of the amendatory act, later approved [p112] May 26, 1941. The speech mentioned the provisions of the amendment for increase of loans on wheat, but not the fact that it also increased the penalty on excess production, and added that, because of the uncertain world situation, extra acreages of wheat had been deliberately planted, and "farmers should not be penalized because they have provided insurance against shortages of food." There was no evidence that the subsequent referendum vote approving the quotas was influenced by the speech.
Held, that, in any event, and even assuming that the penalties referred to in the speech were those prescribed by the Act, the validity of the vote was not thereby affected. P. 117.
2. The wheat marketing quota and attendant penalty provisions of the Agricultural Adjustment Act of 1938, as amended by the Act of May 26, 1941, when applied to wheat not intended in any part for commerce but wholly for consumption on the farm, are within the commerce power of Congress. P. 118.
3. The effect of the Act is to restrict the amount of wheat which may be produced for market and the extent as well to which one may forestall resort to the market by producing for his own needs. P. 127.
4. That the production of wheat for consumption on the farm may be trivial in the particular case is not enough to remove the grower from the scope of federal regulation where his contribution, taken with that of many others similarly situated, is far from trivial. P. 127.
5. The power to regulate interstate commerce includes the power to regulate the prices at which commodities in that commerce are dealt in and practices affecting such prices. P. 128.
6. A factor of such volume and variability as wheat grown for home consumption would have a substantial influence on price conditions on the wheat market, both because such wheat, with rising prices, may flow into the market and check price increases and, because, though never marketed, it supplies the need of the grower which would otherwise be satisfied by his purchases in the open market. P. 128.
7. The amendatory Act of May 26, 1941, which increased the penalty upon "farm marketing excess" and included in that category wheat which previously had not been subject to penalty, held not invalid as retroactive legislation repugnant to the Fifth Amendment when applied to wheat planted and growing before it was enacted, but harvested and threshed thereafter. P. 131.
Sunday, September 27, 2009
Thursday, September 24, 2009
Google Books Lawsuit
Wednesday, September 23, 2009
Internet Sales and Personal Jurisdiction
Please see the article below for a more comprehensive analysis of internet sales and personal jurisdiction (cut and paste link)
Internet Users Beware of Personal Jurisdiction
| http://www.martindale.com/internet-e-commerce/article_Hodgson-Russ-LLP_202876.htm?PRV=OOS |
Personal Jurisdiction & Website Interactivity - Zippo
See: (for the case involving personal jurisdiction and interactive websites)
Zippo Mfr. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997)
Enter the Internet, a global " 'super-network' of over 15,000 computer networks used by over 30 million individuals, corporations, organizations, and educational institutions worldwide." Panavision Intern., L.P. v. Toeppen, 938 F.Supp. 616 (C.D.Cal.1996) (citing American Civil Liberties Union v. Reno, 929 F.Supp. 824, 830-48 (E.D.Pa.1996)). "In recent years, businesses have begun to use the Internet to provide information and products to consumers and other businesses." Id. The Internet makes it possible to conduct business throughout the world entirely from a desktop. With this global revolution looming on the horizon, the development of the law concerning the permissible scope of personal jurisdiction based on Internet use is in its infant stages. The cases are scant. Nevertheless, our review of the available cases and materials [FN5] reveals that the likelihood that personal jurisdiction can be constitutionally exercised is directly proportionate to the nature and quality of commercial activity that an entity conducts over the Internet. This sliding scale is consistent with well developed personal jurisdiction principles. At one end of the spectrum are situations where a defendant clearly does business over the Internet. If the defendant enters into contracts with residents of a foreign jurisdiction that involve the knowing and repeated transmission of computer files over the Internet, personal jurisdiction is proper. E.g. CompuServe, Inc. v. Patterson, 89 F.3d 1257 (6th Cir.1996). At the opposite end are situations where a defendant has simply posted information on an Internet Web site which is accessible to users in foreign jurisdictions. A passive Web site that does little more than make information available to those who are interested in it is not grounds for the exercise personal jurisdiction. E.g. Bensusan Restaurant Corp., v. King, 937 F.Supp. 295 (S.D.N.Y.1996). The middle ground is occupied by interactive Web sites where a user can exchange information with the host computer. In these cases, the exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the Web site. E.g. Maritz, Inc. v. Cybergold, Inc., 947 F.Supp. 1328 (E.D.Mo.1996).Kulko and Personal Jurisdiction
The case we discussed in class is Kulko v. Kulko- I may have mistakenly said "Katko" in class.... here is the holding: ( I also embelished the facts!!)
Held: The exercise of in personam jurisdiction by the California courts over appellant, a New York domiciliary, would violate the Due Process Clause of the Fourteenth Amendment. The mere act of sending a child to California to live with her mother connotes no intent to obtain nor expectancy of receiving a corresponding benefit in that State that would make fair the assertion of that State's judicial jurisdiction over appellant. Pp. 436 U. S. 91-101.
(a) A defendant to be bound by a judgment against him must
"have certain minimum contacts with [the forum State] such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'"
International Shoe Co. v. Washington, supra, at 326 U. S. 316, quoting Milliken v. Meyer, 311 U. S. 457, 311 U. S. 463. P. 436 U. S. 92.
Friday, September 18, 2009
Today's discussion on Issue
After class I kept thinking about the sentence the class made for issue and how it ended unresolved.
The final sentence at the end of class was:
"Whether a state employer that terminated an employee for conflict of interest was entitled to qualified immunity and protection from civil liability when acting objectively reasonable."
The problem with this is sentence is that it does not state an issue, it states a matter of fact. It is already determined that a state employee is entitled to qualified immunity and that the employer is protected from civil liability when acting objectively reasonable.
The real issue in my opinion is then as follows:
"Whether a state employee's position is protected under qualified immunity, or is an employer acting objectively reasonable and protected from civil liability when the employee has a conflict of interests."
The final sentence at the end of class was:
"Whether a state employer that terminated an employee for conflict of interest was entitled to qualified immunity and protection from civil liability when acting objectively reasonable."
The problem with this is sentence is that it does not state an issue, it states a matter of fact. It is already determined that a state employee is entitled to qualified immunity and that the employer is protected from civil liability when acting objectively reasonable.
The real issue in my opinion is then as follows:
"Whether a state employee's position is protected under qualified immunity, or is an employer acting objectively reasonable and protected from civil liability when the employee has a conflict of interests."
Wednesday, September 16, 2009
Unfair
When practicing law did you ever find it hard to believe that people were receiving justice? Like the case of the baby that died at six months. Even though the medical bills were paid, the parents should have received a full reimbursement for what they paid. When my close friend was killed two years ago, not only did it take two years for a trial to occur, but the defendant was able to threaten, harass, and intimidate almost anybody involved in the case. But once the trial started, the judge dismissed him from intimidating a witness. This was after the girl who he committed involuntary manslaughter with had been sentenced to almost a year in prison for the exact thing the judge dismissed. I find it extremely unfair and hard to accept that one judge can see something as justice, while another one rules out the chance for even a jury to hear our case. How was it having to face these types of so called "justice" knowing well that it doesn't seem right?
Monday, September 14, 2009
Federal Judge Rejects Proposed Settlement between BoA and S.E.C
According to a NYTimes article by Louise Story published today, a Federal judge rejected a settlement between Bank Of America and the Securities and Exchange Commission over $3.6 billion given to Merrill Lynch executives as bonuses prior to its acquisition by BoA.
In 2003, "[Judge Rakoff] forced the S.E.C. to increase the $500 million fine it was levying against WorldCom to $750 million, he also demanded that the money be paid out to the company's shareholders, rather than to the agency."
Do you think Judge Rakoff is overstepping his boundaries by rejecting proposed settlements by the S.E.C. and enforcing his own "justice"?
possible bias in jury deliberation
Did you discover any potential bias in your jury deliberations? For example, did race, socio-economic status, gender or other factors play a role in your ultimate decision(s)?
Friday, September 11, 2009
What kind of message are we sending if we reverse a voted on law such as prop 8?
Not even beging for or against prop 8, I have to ask the question: What kind of message are we sending to voters in the state of Californiam, if a vote was passed and a decision was decided? They voted one way but now they are trying to change the law that was clearly voted on. It is saying that what the people wanted is wrong and their vote does not matter.
-Please note this isn't taking sides about the content of prop 8, but could apply to any law voted on and is a debate about principle
-Please note this isn't taking sides about the content of prop 8, but could apply to any law voted on and is a debate about principle
Wednesday, September 9, 2009
Assignment for Friday 9-11-09
Please make certain that you complete your one page position statement on the issue of judicial activism v. originalism for Friday!
Monday, September 7, 2009
Limit this Blog to Business Law I
Due to the restrictions on the number of authors- Let's limit this Blog to Business Law I and set up another Blog for Business Law II. If you are in Business Law II and received an invitation- wait for a new invitation to follow!
Limitation on the number of authors
I noticed that our Blog is limited to 100 authors. All Business Law students have been invited to be an author. First come, first served for now!
Welcome
Welcome to Business Law at the University of San Diego. Students are welcome to add thoughtful comments concerning the material covered in Business Law I and Business Law II.
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