Retired O'Connor Still Making Trouble - Andrew McCarthy

Ex-Justice helps Ninth Circuit Overturn vote-fraud law

A divided Ninth Circuit panel ruled on Tuesday that Arizona’s Proposition 200, adopted by the people of the state in 2004 to protect the integrity of elections, is invalid. Prop 200 requires voters to provide proof of eligibility (i.e., citizenship) to register and proof of identity to vote. Against precedent, statutory language, and logic, the 2–1 majority insisted that these eminently reasonable state requirements had been superseded by a federal statute, the National Voter Registration Act (NVRA), which does not mandate them.

The decision in the case, Gonzalez v. Arizona, was not actually rendered by Ninth Circuit judges, only one of whom agreed with it. As Ed Whelan notes in a Bench Memos post, the deciding vote was cast by the supposedly retired Supreme Court justice Sandra Day O’Connor. Justice O’Connor claims the power to sit by designation on cases in the federal appellate and district courts, despite the fact that she is now an overt political activist. Under the rules of judicial ethics, that ought to sideline her as a jurist. But of course, a politician can get a lot more accomplished wearing a robe.Consequently, Justice O’Connor would not be involved, and it’s entirely possible that neither Judge Ikuta nor Chief Judge Kozinski would participate. (In most federal circuits, all active judges participate in en banc cases, and senior judges may also take part if they were members of the panel whose decision is being reviewed.)

Regardless of whether the Ninth Circuit reconsiders Tuesday’s ruling en banc, the case seems certain to draw Supreme Court review. In light of the dissent and the complications the case portends for other states that (like Arizona) have identification requirements beyond what NVRA prescribes, the justices will probably feel obliged to take the case and settle the conflicts. That could take many months, at least, and will not help Arizona police next Tuesday’s crucial mid-term election. Also, expect other states to be inundated in the next few days with lawsuits demanding that they refrain from requiring voters to show minimal proof of identification.In any event, the real intrigue about this voting-rights ruling is a raging controversy that goes unmentioned even though it hovers over every page: Arizona’s 2010 immigration law, over which the state is being sued by the Obama administration.

Like Prop 200, the state immigration statute does not contravene federal law; it supports the enforcement of federal immigration statutes. Yet the Obama Justice Department argues that the people of Arizona are powerless to enact their own protective measures because they have been preempted — not only by congressional statutes but by executive-branch enforcement policies. A likeminded, Clinton-appointed district judge bought the administration’s dubious preemption claims (I’ve discussed them here, here, and here). Thus, Arizona has appealed, and the case is now before the Ninth Circuit.

Preemption is the very doctrine to which the Ninth Circuit majority (i.e., Judge Ikuta and Justice O’Connor) resorted in the voting-rights case, so Tuesday’s ruling is now Circuit precedent. But the majority’s reasoning is absurd.

Put aside that NVRA expressly invites states to employ their own supplemental identification procedures. And let’s further assume, for argument’s sake, that the federal government has the power to preempt states from enacting voter-eligibility laws, even though conducting elections is traditionally a state function. In NVRA, Congress took pains to prohibit states from using a particular practice: any requirement that registration forms be notarized. Quite obviously, if it had been the federal government’s purpose to elbow the states completely out of the business of managing elections, there would have been no point in barring states from one specific practice. On the contrary, Congress would simply and clearly have said states were barred from enactingany additional identification procedures.

As Chief Judge Kozinski summarizes in rejecting the preemption claim:

The simple truth is that nothing in the NVRA clearly supersedes Arizona’s supplemental registration requirements. To get its way, the majority invents a broad rule of same-subject-matter preemption, arguing that the NVRA “addresses precisely the same topic as Proposition 200 in greater specificity, namely, the information that will be required to ensure that an applicant is eligible to vote in federal elections.” . . . But, as the majority acknowledges earlier in its opinion, the question under the Elections Clause isn’t whether the two laws address “the same topic,” but whether Arizona’s law “complements” rather than conflicts with “the congressional procedural scheme.” . . . There’s no conflict based on the text of the statutes. Arizona gladly accepts and uses the federal form, it just asks that voters also provide some proof of citizenship.

Analogously, the state’s immigration law endorses and complements federal law. It conflicts only with the Obama administration’s political decision not to enforce the law; there is no conflict with federal statutes.

Sadly, Justice O’Connor rejected Chief Judge Kozinski’s straightforward reasoning in the voting-rights case, implausibly concluding that whenever Leviathan deigns to act, the (formerly) sovereign states must stand down. So, here’s what Arizonans need to worry about: Their capacity to protect both the integrity of their elections and their security from the ravages of illegal immigration will come down to Justice Anthony Kennedy. The Supreme Court’s four-justice leftist bloc, now fortified by Obama appointees Elena Kagan and Sonia Sotomayor (the latter a longtime member of the National Council of La Raza), is undoubtedly poised to rule against the state. The four-justice conservative bloc is likely to endorse state laws that serve the stated goals of federal laws. That leaves the swing vote, Justice Kennedy.

It wasn’t so long ago that Justice Kennedy’s partner in swing was . . . Justice O’Connor.

The 62-page majority opinion is about as willful as it gets. First, it brazenly flouts circuit rules, riding roughshod over precedent to reach the point of imposing its policy preference. Then, it endeavors to justify this imposition by a dizzying disquisition on the legislative history of voting laws — a thick diversion that is thin camouflage for the stubborn fact that the NVRA’s text does not support the claim that states have been preempted from supplementing federal thresholds for voter eligibility — particularly if those supplements are geared toward shoring up the integrity of elections, which the NVRA claims as its purpose.

Indeed, as Chief Judge Alex Kozinski explains in his withering dissent, the NVRA explicitly invites states to require additional “identifying information . . . as is necessary to enable the appropriate State official to assess the eligibility of the applicant.” Consequently, several states do precisely that. The majority’s decision is thus guaranteed to be exploited by ACORN types in their campaigns to undermine electoral integrity in those states.

Furthermore, honoring the precedent that the majority sedulously resisted, Chief Judge Kozinski stresses that the case was squarely controlled by the Ninth Circuit’s 2007 ruling in this same litigation. There, the court held that the NVRA “plainly allow[s] states, at least to some extent, to require their citizens to present evidence of citizenship when registering to vote.” That should have been the end of the matter. It was, instead, just a bump in the road for the majority, which steamrolled right on by.

For court buffs, the decision has its intrigue. The majority opinion joined by Justice O’Connor was written by Judge Sandra Segal Ikuta, a Bush appointee who joined the Ninth Circuit in 2006. After graduating from UCLA Law School in 1988, Ikuta was a law clerk for two years: first for Judge Kozinski, and then for Justice O’Connor. Given Justice O’Connor’s stature and Judge Ikuta’s longstanding ties to her co-panelists, Chief Judge Kozinski’s concluding paragraph is especially stinging:

The majority distorts two major areas of law before it even reaches the merits. It creates an unprecedented exception to our law of the circuit rule, trampling underfoot a newly minted en banc opinion. The majority also makes a mess of the law of the case analysis by taking issue with a prior panel’s reasoning, not its conclusion. And, as to the merits, the panel comes nowhere close to proving that Gonzalez I’s interpretation of the National Voter Registration Act was wrong, much less clearly wrong. Few panels are able to upset quite so many apple carts all at once. Count me out.

The lengthy dissent by the circuit’s well-regarded chief judge, dismantling the majority’s house of cards floor by floor, dramatically increases the likelihood that the case will be reconsidered by the court sitting en banc. Because the Ninth Circuit is a behemoth, with 29 active judges and several other senior jurists, its much-derided en banc rules call for cases to be heard by eleven active members of the court, selected at random.

By Andrew McCarthy

http://www.nationalreview.com/articles/251237/retired-o-connor-still-making-trouble-andrew-c-mccarthy?page=2

Maria Gonzalez v. State of Arizona, No. 08-17094

http://www.ca9.uscourts.gov/media/view_subpage.php?pk_id=0000004290

copy and paste into browser for audio recording

Deferred Compensation Plans

We discussed the benefits and inequities of deferred compensation plans including 401K, 403B and IRA plans. Current Social Security benefits seem inadequate as a retirement source and many individuals cannot afford to, are not offered or choose not to participate in deferred compensation plans. Defined Benefit Plans and "old style" pensions are disappearing from the workplace. How would you address this inequity?

Crying Over Spilled Coffee

Check out this article on the Liebeck v. McDonald's Restaurants spilled coffee lawsuit as an interesting example of negligence:
http://www.fair.org/index.php?page=1294

double jeopardy

Is it true that double jeopardy does not apply on the military? Can the defendant be accused for the same crime in the state and military court?

Monday 10-11-10 Assignment

For Monday 10-11-10 please read and study Chapter 8 in the text.

Full Case- Falwell v. Flynt

Hustler Magazine and Larry C. Flynt, Petitioners v. Jerry Falwell No. 86-1278 SUPREME COURT OF THE UNITED STATES 485 U.S. 46 February 24, 1988, Decided

REHNQUIST, C. J., delivered the opinion of the Court, in which BRENNAN, MARSHALL, BLACKMUN, STEVENS, O'CONNOR, and SCALIA, JJ., joined. WHITE, J., filed an opinion concurring in the judgment. KENNEDY, J., took no part in the consideration or decision of the case.

CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.

Petitioner Hustler Magazine, Inc., is a magazine of nationwide circulation. Respondent Jerry Falwell, a nationally known minister who has been active as a commentator on politics and public affairs, sued petitioner and its publisher, petitioner Larry Flynt, to recover damages for invasion of privacy, libel, and intentional infliction of emotional distress. The District Court directed a verdict against respondent on the privacy claim, and submitted the other two claims to a jury. The jury found for petitioners on the defamation claim, but found for respondent on the claim for intentional infliction of emotional distress and awarded damages. We now consider whether this award is consistent with the First and Fourteenth Amendments of the United States Constitution.

The inside front cover of the November 1983 issue of Hustler Magazine featured a "parody" of an advertisement for Campari Liqueur that contained the name and picture of respondent and was entitled "Jerry Falwell talks about his first time." This parody was modeled after actual Campari ads that included interviews with various celebrities about their "first times." Although it was apparent by the end of each interview that this meant the first time they sampled Campari, the ads clearly played on the sexual double entendre of the general subject of "first times." Copying the form and layout of these Campari ads, Hustler's editors chose respondent as the featured celebrity and drafted an alleged "interview" with him in which he states that his "first time" was during a drunken incestuous rendezvous with his mother in an outhouse. The Hustler parody portrays respondent and his mother as drunk and immoral, and suggests that respondent is a hypocrite who preaches only when he is drunk. In small print at the bottom of the page, the ad contains the disclaimer, "ad parody -- not to be taken seriously." The magazine's table of contents also lists the ad as "Fiction; Ad and Personality Parody."

Soon after the November issue of Hustler became available to the public, respondent brought this diversity action in the United States District Court for the Western District of Virginia against Hustler Magazine, Inc., Larry C. Flynt, and Flynt Distributing Co. Respondent stated in his complaint that publication of the ad parody in Hustler entitled him to recover damages for libel, invasion of privacy, and intentional infliction of emotional distress. The case proceeded to trial. At the close of the evidence, the District Court granted a directed verdict for petitioners on the invasion of privacy claim. The jury then found against respondent on the libel claim, specifically finding that the ad parody could not "reasonably be understood as describing actual facts about [respondent] or actual events in which [he] participated." The jury ruled for respondent on the intentional infliction of emotional distress claim, however and stated that he should be awarded $ 100,000 in compensatory damages, as well as $ 50,000 each in punitive damages from petitioners.

On appeal, the United States Court of Appeals for the Fourth Circuit affirmed the judgment against petitioners. Given the importance of the constitutional issues involved, we granted certiorari.

This case presents us with a novel question involving First Amendment limitations upon a State's authority to protect its citizens from the intentional infliction of emotional distress. We must decide whether a public figure may recover damages for emotional harm caused by the publication of an ad parody offensive to him, and doubtless gross and repugnant in the eyes of most. Respondent would have us find that a State's interest in protecting public figures from emotional distress is sufficient to deny First Amendment protection to speech that is patently offensive and is intended to inflict emotional injury, even when that speech could not reasonably have been interpreted as stating actual facts about the public figure involved. This we decline to do.

At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern. "The freedom to speak one's mind is not only an aspect of individual liberty -- and thus a good unto itself -- but also is essential to the common quest for truth and the vitality of society as a whole." We have therefore been particularly vigilant to ensure that individual expressions of ideas remain free from governmentally imposed sanctions. The First Amendment recognizes no such thing as a "false" idea. As Justice Holmes wrote, "When men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market . . . ."

The sort of robust political debate encouraged by the First Amendment is bound to produce speech that is critical of those who hold public office or those public figures who are "intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large." Justice Frankfurter put it succinctly when he said that "one of the prerogatives of American citizenship is the right to criticize public men and measures." Such criticism, inevitably, will not always be reasoned or moderate; public figures as well as public officials will be subject to "vehement, caustic, and sometimes unpleasantly sharp attacks."

Of course, this does not mean that any speech about a public figure is immune from sanction in the form of damages. Since New York Times Co. v. Sullivan, supra, we have consistently ruled that a public figure may hold a speaker liable for the damage to reputation caused by publication of a defamatory falsehood, but only if the statement was made "with knowledge that it was false or with reckless disregard of whether it was false or not...."

Here the State seeks to prevent not reputational damage, but the severe emotional distress suffered by the person who is the subject of an offensive publication. In respondent's view, and in the view of the Court of Appeals, so long as the utterance was intended to inflict emotional distress, was outrageous, and did in fact inflict serious emotional distress, it is of no constitutional import whether the statement was a fact or an opinion, or whether it was true or false. It is the intent to cause injury that is the gravamen of the tort, and the State's interest in preventing emotional harm simply outweighs whatever interest a speaker may have in speech of this type.

Generally speaking the law does not regard the intent to inflict emotional distress as one which should receive much solicitude, and it is quite understandable that most if not all jurisdictions have chosen to make it civilly culpable where the conduct in question is sufficiently "outrageous." But in the world of debate about public affairs, many things done with motives that are less than admirable are protected by the First Amendment.

"Debate on public issues will not be uninhibited if the speaker must run the risk that it will be proved in court that he spoke out of hatred; even if he did speak out of hatred, utterances honestly believed contribute to the free interchange of ideas and the ascertainment of truth."

Thus while such a bad motive may be deemed controlling for purposes of tort liability in other areas of the law, we think the First Amendment prohibits such a result in the area of public debate about public figures.

Were we to hold otherwise, there can be little doubt that political cartoonists and satirists would be subjected to damages awards without any showing that their work falsely defamed its subject. Webster's defines a caricature as "the deliberately distorted picturing or imitating of a person, literary style, etc. by exaggerating features or mannerisms for satirical effect." The appeal of the political cartoon or caricature is often based on exploration of unfortunate physical traits or politically embarrassing events -- an exploration often calculated to injure the feelings of the subject of the portrayal. The art of the cartoonist is often not reasoned or evenhanded, but slashing and one-sided. One cartoonist expressed the nature of the art in these words: "The political cartoon is a weapon of attack, of scorn and ridicule and satire; it is least effective when it tries to pat some politician on the back. It is usually as welcome as a bee sting and is always controversial in some quarters."

Despite their sometimes caustic nature, from the early cartoon portraying George Washington as an ass down to the present day, graphic depictions and satirical cartoons have played a prominent role in public and political debate. Nast's castigation of the Tweed Ring, Walt McDougall's characterization of presidential candidate James G. Blaine's banquet with the millionaires at Delmonico's as "The Royal Feast of Belshazzar," and numerous other efforts have undoubtedly had an effect on the course and outcome of contemporaneous debate. Lincoln's tall, gangling posture, Teddy Roosevelt's glasses and teeth, and Franklin D. Roosevelt's jutting jaw and cigarette holder have been memorialized by political cartoons with an effect that could not have been obtained by the photographer or the portrait artist. From the viewpoint of history it is clear that our political discourse would have been considerably poorer without them.

Respondent contends, however, that the caricature in question here was so "outrageous" as to distinguish it from more traditional political cartoons. There is no doubt that the caricature of respondent and his mother published in Hustler is at best a distant cousin of the political cartoons described above, and a rather poor relation at that. If it were possible by laying down a principled standard to separate the one from the other, public discourse would probably suffer little or no harm. But we doubt that there is any such standard, and we are quite sure that the pejorative description "outrageous" does not supply one. "Outrageousness" in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors' tastes or views, or perhaps on the basis of their dislike of a particular expression. An "outrageousness" standard thus runs afoul of our longstanding refusal to allow damages to be awarded because the speech in question may have an adverse emotional impact on the audience.

"The fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker's opinion that gives offense, that consequence is a reason for according it constitutional protection. For it is a central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas."

Admittedly, these oft-repeated First Amendment principles, like other principles, are subject to limitations. In Chaplinsky v. New Hampshire, 315 U. S. 568 (1942), we held that a state could lawfully punish an individual for the use of insulting " fighting' words -- those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." But the sort of expression involved in this case does not seem to us to be governed by the exception to the general First Amendment principles stated above.

The Court of Appeals interpreted the jury's finding to be that the ad parody "was not reasonably believable," and in accordance with our custom we accept this finding. Respondent is thus relegated to his claim for damages awarded by the jury for the intentional infliction of emotional distress by "outrageous" conduct. But for reasons heretofore stated this claim cannot, consistently with the First Amendment, form a basis for the award of damages when the conduct in question is the publication of a caricature such as the ad parody involved here. The judgment of the Court of Appeals is accordingly Reversed.

Japan's Government seems all-powerful...

June 13, 2008

Japan, Seeking Trim Waists, Measures Millions

By Normitsu Onishi

AMAGASAKI, Japan — Japan, a country not known for its overweight people, has undertaken one of the most ambitious campaigns ever by a nation to slim down its citizenry.

Summoned by the city of Amagasaki one recent morning, Minoru Nogiri, 45, a flower shop owner, found himself lining up to have his waistline measured. With no visible paunch, he seemed to run little risk of being classified as overweight, or metabo, the preferred word in Japan these days.

But because the new state-prescribed limit for male waistlines is a strict 33.5 inches, he had anxiously measured himself at home a couple of days earlier. “I’m on the border,” he said.

Under a national law that came into effect two months ago, companies and local governments must now measure the waistlines of Japanese people between the ages of 40 and 74 as part of their annual checkups. That represents more than 56 million waistlines, or about 44 percent of the entire population.

Those exceeding government limits — 33.5 inches for men and 35.4 inches for women, which are identical to thresholds established in 2005 for Japan by the InternationalDiabetes Federation as an easy guideline for identifying health risks — and having a weight-related ailment will be given dieting guidance if after three months they do not lose weight. If necessary, those people will be steered toward further re-education after six more months.

To reach its goals of shrinking the overweight population by 10 percent over the next four years and 25 percent over the next seven years, the government will impose financial penalties on companies and local governments that fail to meet specific targets. The country’s Ministry of Health argues that the campaign will keep the spread of diseases like diabetes and strokes in check.

The ministry also says that curbing widening waistlines will rein in a rapidly aging society’s ballooning health care costs, one of the most serious and politically delicate problems facing Japan today. Most Japanese are covered under public health care or through their work. Anger over a plan that would make those 75 and older pay more for health care brought a parliamentary censure motion Wednesday against Prime Minister Yasuo Fukuda, the first against a prime minister in the country’s postwar history.

But critics say that the government guidelines — especially the one about male waistlines — are simply too strict and that more than half of all men will be considered overweight. The effect, they say, will be to encourage overmedication and ultimately raise health care costs.

Yoichi Ogushi, a professor at Tokai University’s School of Medicine near Tokyo and an expert on public health, said that there was “no need at all” for the Japanese to lose weight.

“I don’t think the campaign will have any positive effect. Now if you did this in the United States, there would be benefits, since there are many Americans who weigh more than 100 kilograms,” or about 220 pounds, Mr. Ogushi said. “But the Japanese are so slender that they can’t afford to lose weight.”

Mr. Ogushi was actually a little harder on Americans than they deserved. A survey by the National Center for Health Statistics found that the average waist size for Caucasian American men was 39 inches, a full inch lower than the 40-inch threshold established by the International Diabetes Federation. American women did not fare as well, with an average waist size of 36.5 inches, about two inches above their threshold of 34.6 inches. The differences in thresholds reflected variations in height and body type from Japanese men and women.

Comparable figures for the Japanese are sketchy since waistlines have not been measured officially in the past. But private research on thousands of Japanese indicates that the average male waistline falls just below the new government limit.

That fact, widely reported in the media, has heightened the anxiety in the nation’s health clinics.

In Amagasaki, a city in western Japan, officials have moved aggressively to measure waistlines in what the government calls special checkups. The city had to measure at least 65 percent of the 40- to 74-year-olds covered by public health insurance, an “extremely difficult” goal, acknowledged Midori Noguchi, a city official.

When his turn came, Mr. Nogiri, the flower shop owner, entered a booth where he bared his midriff, exposing a flat stomach with barely discernible love handles. A nurse wrapped a tape measure around his waist across his belly button: 33.6 inches, or 0.1 inch over the limit.

“Strikeout,” he said, defeat spreading across his face.

The campaign started a couple of years ago when the Health Ministry began beating the drums for a medical condition that few Japanese had ever heard of — metabolic syndrome — a collection of factors that heighten the risk of developing vascular disease and diabetes. Those include abdominal obesity, high blood pressure and high levels of blood glucose and cholesterol. In no time, the scary-sounding condition was popularly shortened to the funny-sounding metabo, and it has become the nation’s shorthand for overweight.

The mayor of one town in Mie, a prefecture near here, became so wrapped up in the anti-metabo campaign that he and six other town officials formed a weight-loss group called “The Seven Metabo Samurai.” That campaign ended abruptly after a 47-year-old member with a 39-inch waistline died of a heart attack while jogging.

Still, at a city gym in Amagasaki recently, dozens of residents — few of whom appeared overweight — danced to the city’s anti-metabo song, which warned against trouser buttons popping and flying away, “pyun-pyun-pyun!”

“Goodbye, metabolic. Let’s get our checkups together. Go! Go! Go!

Goodbye, metabolic. Don’t wait till you get sick. No! No! No!”

The word metabo has made it easier for health care providers to urge their patients to lose weight, said Dr. Yoshikuni Sakamoto, a physician in the employee health insurance union at Matsushita, which makes Panasonic products.

“Before we had to broach the issue with the word obesity, which definitely has a negative image,” Dr. Sakamoto said. “But metabo sounds much more inclusive.”

Even before Tokyo’s directives, Matsushita had focused on its employees’ weight during annual checkups. Last summer, Akio Inoue, 30, an engineer carrying 238 pounds on a 5-foot-7 frame, was told by a company doctor to lose weight or take medication for his high blood pressure. After dieting, he was down to 182 pounds, but his waistline was still more than one inch over the state-approved limit.

With the new law, Matsushita has to measure the waistlines of not only its employees but also of their families and retirees. As part of its intensifying efforts, the company has started giving its employees “metabo check” towels that double as tape measures.

“Nobody will want to be singled out as metabo,” Kimiko Shigeno, a company nurse, said of the campaign. “It’ll have the same effect as non-smoking campaigns where smokers are now looked at disapprovingly.”

Companies like Matsushita must measure the waistlines of at least 80 percent of their employees. Furthermore, they must get 10 percent of those deemed metabolic to lose weight by 2012, and 25 percent of them to lose weight by 2015.

NEC, Japan’s largest maker of personal computers, said that if it failed to meet its targets, it could incur as much as $19 million in penalties. The company has decided to nip metabo in the bud by starting to measure the waistlines of all its employees over 30 years old and by sponsoring metabo education days for the employees’ families.

Some experts say the government’s guidelines on everything from waistlines to blood pressure are so strict that meeting, or exceeding, those targets will be impossible. They say that the government’s real goal is to shift health care costs onto the private sector.

Dr. Minoru Yamakado, an official at the Japan Society of Ningen Dock, an association of doctors who administer physical exams, said he endorsed the government’s campaign and its focus on preventive medicine.

But he said that the government’s real priority should be to reduce smoking rates, which remain among the highest among advanced nations, in large part because of Japan’s powerful tobacco lobby.

“Smoking is even one of the causes of metabolic syndrome,” he said. “So if you’re worried about metabo, stopping people from smoking should be your top priority.”

Despite misgivings, though, Japan is pushing ahead.

Kizashi Ohama, an official in Matsuyama, a city that has also acted aggressively against metabo, said he would leave the debate over the campaign’s merits to experts and health officials in Tokyo.

At Matsuyama’s public health clinic, Kinichiro Ichikawa, 62, said the government-approved 33.5-inch male waistline was “severe.” He is 5-foot-4, weighs only 134 pounds and knows no one who is overweight.

“Japan shouldn’t be making such a fuss about this,” he said before going off to have his waistline measured.

But on a shopping strip here, Kenzo Nagata, 73, a toy store owner, said he had ignored a letter summoning him to a so-called special checkup. His waistline was no one’s business but his own, he said, though he volunteered that, at 32.7 inches, it fell safely below the limit. He planned to disregard the second notice that the city was scheduled to mail to the recalcitrant.

“I’m not going,” he said. “I don’t think that concerns me.”

Copyright 2008 The New York Times Company

http://www.nytimes.com/2008/06/13/world/asia/13fat.html

Confusion over Personal Jurisdiction

I have a question about "personal jurisdiction" and was wondering if anyone could help me with my confusion. In class we referred to personal jurisdiction as a question as to which state has jurisdiction over the defendant. In the textbook, "in personam jurisdiction" is defined as "the power of a court to require a party or a witness to come before the court; the court must have personal jurisdiction to enforce its judgments or orders against a party; in personam jurisdiction extends only to the state's borders in the state court system and across the court's geographic district in the federal system." I'm not sure how our in-class definition meets the full criteria of the definition of in personam jurisdiction. Does anyone know of any examples of in personam jurisdiction NOT referring to a state's jurisdiction over a defendant? Thanks.

Additional facts on the Kulko case

KULKO V. SUPERIOR CT., 436 U. S. 84 (1978)

U.S. Supreme Court

Kulko v. Superior Ct., 436 U.S. 84 (1978)

Kulko v. Superior Court of California

No. 77-293

Argued March 29, 1978

Decided May 15, 1978

436 U.S. 84

Syllabus

Appellant and appellee, both then New York domiciliaries, were married in 1959 in California during appellant's three-day stopover while he was en route to overseas military duty. After the marriage, appellee returned to New York, as did appellant following his tour of duty and a 24-hour stopover in California. In 1961 and 1962, a son and daughter were born to them in New York, where the family resided together until March, 1972, when appellant and appellee separated. Appellee then moved to California. Under a separation agreement, executed by both parties in New York, the children were to remain with appellant father during the school year, but during specified vacations with appellee mother, whom appellant agreed to pay $3,000 per year in child support for the periods when the children were in her custody. Appellee, after obtaining a divorce in Haiti, which incorporated the terms of the separation agreement, returned to California. In December, 1973, the daughter, at her request and with her father's consent, joined her mother in California, and remained there during the school year, spending vacations with her father. Appellee, without appellant's consent, arranged for the son to join her in California about two years later. Appellee then brought this action against appellant in California to establish the Haitian divorce decree as a California judgment, to modify the judgment so as to award her full custody of the children, and to increase appellant's child support obligations. Appellant, resisting the claim for increased support, appeared specially, claiming that he lacked sufficient "minimum contacts" with that State under International Shoe Co. v. Washington, 326 U. S. 310, 326 U. S. 316, to warrant the State's assertion of personal jurisdiction over him. The California Supreme Court, upholding lower court determinations adverse to appellant, concluded that, where a nonresident defendant has caused an "effect" in the State by an act or omission outside the State, personal jurisdiction over the defendant arising from the effect may be exercised whenever "reasonable," and that such exercise was "reasonable" here because appellant had "purposely availed himself of the benefits and protections of California" by sending the daughter to

Page 436 U. S. 85

live with her mother there, and that it was "fair and reasonable" for the defendant to be subject to personal jurisdiction for the support of both children.

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.

(b) The acquiescence of appellant in his daughter's desire to live with her mother in California was not enough to confer jurisdiction over appellant in the California courts. See Shaffer v. Heitner, 433 U. S. 186, 433 U. S. 216. P. 436 U. S. 94.

(c) Exercise of in personam jurisdiction over appellant was not warranted by the financial benefit appellant derived from his daughter's presence in California for nine months of the year, since any diminution in appellant's household costs resulted not from the child's presence in California, but from her absence from appellant's home, and from appellee's failure to seek an increase in support payments in New York. Pp. 436 U. S. 94-96.

(d) The "effects" rule that the California courts applied is intended to reach wrongful activity outside of the forum State causing injury within the State where such application would not be "unreasonable," but here, where there is no claim that appellant visited physical injury on either property or persons in California; where the cause of action arises from appellant's personal, domestic relations; and where the controversy arises from a separation that occurred in New York, and modification is sought of a contract negotiated and signed in New York that had virtually no connection with the forum State, it is "unreasonable" for California to assert personal jurisdiction over appellant. P. 436 U. S. 96-97.

(e) Since appellant remained in the State of marital domicile and did no more than acquiesce in the stated preference of his daughter to live with her mother in California, basic considerations of fairness point decisively to appellant's State of domicile as the proper forum for adjudicating this case, whatever be the merits of appellee's underlying claim. Pp. 436 U. S. 97-98.

Page 436 U. S. 86

(f) California's legitimate interest in ensuring the support of children residing in California without unduly disrupting the children's lives is already being served by the State's participation in the Uniform Reciprocal Enforcement of Support Act of 1968, which permits a California resident claiming support from a nonresident to file a petition in California and have its merits adjudicated in the State of the alleged obligor's residence, without either party's having to leave his or her own State. New York is a signatory to a similar statute. Those statutes appear to provide appellee with means to vindicate her claimed right to additional child support from appellant and collection of any support payments found to be owed to her by appellant. Pp. 436 U. S. 98-101.

Appeal dismissed and certiorari granted; 19 Cal.3d 514, 564 P.2d 353, reversed.

MARSHALL, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, BLACKMUN, REHNQUIST, and STEVENS, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which WHITE and POWELL, JJ., joined, post, p. 436 U. S. 101.

Required Text for Business Law I - Fall 2010

The required text for Business Law I (Custin) Fall 2010 is:

Dynamic Business Law, Kubasek et al., 1st Edition, McGraw Hill, 2009 ISBN: 978-0-07-352491-7. This text was used in previous semesters and may be available from former students. You may obtain and use the electronic edition, if available.

Small business lobby to go to court on health law

By RICARDO ALONSO-ZALDIVAR Associated Press Writer

WASHINGTON (AP) - Attorneys general and governors for 20 states won't be alone in their legal challenge to President Barack Obama's health care overhaul.

The nation's most influential small business lobby is going to court with them.

The National Federation of Independent Business will join the argument that Americans cannot be required under the Constitution to obtain insurance coverage, the groups president, Dan Danner, said in an interview. The group plans to announce Friday it's joining the suit.

Regardless of whether the constitutional argument sways federal judges hearing the case, NFIB'S involvement ensures the point will be heard extensively during the fall political campaigns. All but one of the state officials who have filed the case in Florida are Republicans, and with 350,000 members the NFIB boasts a far-reaching network of local activists.

Florida Attorney General Bill McCollum, a leader of the legal challenge and a GOP candidate for governor, said he has "received a lot of strong response and reaction in support when I have spoken of this subject. I think voters as a whole are concerned."

A groundswell of opposition to the law from small business owners prompted NFIB's decision to join the court challenge, said Karen Harned, a senior lawyer for the group. "The second the law was signed, NFIB was hearing from its members: 'What are you all going to do about this?'," said Harned. "So we hunkered down. We looked around. This state attorneys general lawsuit made the most sense for us. It's the only one that has a national presence."

The health care law, passed by a Congress divided on partisan lines, puts the nation on a path to coverage for all. One of its pillars is the requirement that most Americans carry health insurance - through an employer, a government program, or by buying their own policy.

The mandate is effective in 2014, when new competitive insurance markets open for business. Insurers will then be required to take all applicants, no longer allowed to turn away those in poor health. The government will offer tax credits to help middle-class households pay premiums. And Medicaid will be expanded to cover millions more low-income people.

Individuals who refuse to get health insurance will be hit with a tax penalty, although exceptions are allowed for financial hardship and religious reasons. Businesses will also be required to contribute to the cost of their workers' health insurance, but companies with fewer than 50 employees are exempt.

The Obama administration argues that the coverage requirements rest on a solid constitutional foundation: the power of Congress to regulate interstate commerce.

But critics say that does not give government the right to direct individuals to purchase a specific good or service.

The new law allows government "to regulate you just because you exist," said Danner. "If you can regulate this, where do you stop? Do you tell people, 'We are going to mandate that everybody exercise?' We think this is an overreach by the government. It goes too far, and threatens individual freedom."

The administration counters that a decision to opt out of health insurance is not merely a matter of personal choice. It has consequences for others, since uninsured people will get sick, or have accidents, and someone must pay for their care if they can't afford it.

"Individual decisions to forgo insurance coverage, in the aggregate, substantially affect interstate commerce by shifting costs to health care providers and the public," Justice Department said this week in legal papers filed in a similar lawsuit in Michigan.

People who remain uninsured by choice "have not opted out of health care; they are not passive bystanders divorced from the health care market," the government continued. "They have made a choice regarding the method of payment for the services they expect to receive, no less 'active' than a decision to pay by credit card rather than by check."

Legal scholars are divided over prospects for the case. Many - but not all - expect the administration to prevail.

Timothy Jost, a professor at Washington and Lee University law school in Virginia, said:

"These are not really legal cases - they are political statements."

2010-05-14 11:26:51 GMT

Regan on socialized health care

http://www.youtube.com/watch?v=t2s6xc0nIpQ

I'm quitting Facebook.

Some quitting Facebook as privacy concerns escalate

· In recent weeks more people appear to be deleting their Facebook accounts

· This comes as a response to rising privacy concerns about the site

· Facebook has been hit with bugs lately, and it recently announced changes

· It's unclear how many people have deleted their accounts; it is difficult to do so

(CNN) -- Concerns over Facebook's new privacy policy and the online social network's recent efforts to spread its information across the Web have led some of the site's faithful to delete their accounts -- or at least try to.

On Wednesday's episode of a podcast called This Week in Technology, host Leo Laporte, a well-known tech pundit, said he had to search wikiHow, a how-to site, to figure out how to delete his Facebook account permanently.

After finding the delete button, which he said is hidden deep within the site's menus, Laporte proceeded to delete his account during the online broadcast.

"That's it. It's gone," he said during the show. "And I think that's the right thing to do."

It's unclear how many people have chosen to delete their Facebook accounts in recent weeks. The popular social network doesn't publish statistics on how many people quit the site.

But there has been much uproar online about Facebook's alleged lack of concern for the privacy of its users' personal information, and its clear that some people have become so upset that they're leaving the networking site, which has more than 400 million members.

Still, the account deletions likely aren't numerous enough numbers to affect the site's overall size. Facebook spokeswoman Annie Ta said in an e-mail that Facebook has grown by more than 10 million active users since late April.

iReport: Are you done with Facebook?

In recent weeks, the site has been hit with several privacy bugs and scares that, among other things, made private chat conversations briefly visible to Facebook friends. And on April 21, Facebook CEO Mark Zuckerberg announced a new Facebook feature called the "Open Graph," which essentially brings Facebook-like functionality to a number of websites.

CNN.com is one of several dozen sites that partner with Facebook to display and share users' interests.

Some Facebook users, including Sam Schreiber, say they are bothered by the fact that their online preferences are showing up all over the internet now, instead of just on Facebook.com.

Schreiber, a 24-year-old who considers herself social-media savvy, says she may delete her account soon because she doesn't understand Facebook's privacy settings well enough to know that her information is being kept safe.

"People already use them like it's crack, so I don't see what the next step is aside from world domination," she said. "So I just think it's too much."

She was particularly concerned when one of her Facebook friends saw on the music site Pandora that she likes the band "New Found Glory."

"I was like, that's really creepy. I haven't logged in. I didn't give it permission. I didn't do anything," she said.

Schreiber said she tried to change her Facebook privacy settings to keep that from happening again, but had to turn to news articles for information about how to do so, which she thought was unreasonable.

Facebook: Read the site's privacy policy

Facebook appears to be rattled a bit by these changes. The blog All Facebook reports that the site's executives called an "all hands" meeting Thursday to discuss its privacy policy in light of recent criticism.

And there are rumors that the site may amend its policies, as CNET reports.

The site has had its detractors before. Each time Facebook makes changes to its privacy policy, thousands of users tend to complain.

But interest in deleting Facebook accounts appears to be rising.

If you type in the phrase "How do I" on Google, one of the first suggested searches that comes up is "How do I delete my Facebook account," a factoid discovered by Danny Sullivan, a blogger at Search Engine Land.

Sullivan looked at similar searches over time and published a graph that shows searches about deleting Facebook accounts have been on the rise sharply since 2009.

"Yes, there's definitely a rising trend," he writes in a blog post on the matter. "Over time, more and more searches at Google have involved [deleting Facebook accounts], it appears. In fact, if you go back to Google and start typing in 'del,' you get 'delete facebook account' as the top suggestion."

A number of tech pundits, including Laporte, have also written recently about deleting or deactivating their accounts.

The blog Silicon Alley Insider posted a list of these on Friday with a headline that says, "Suddenly, everyone is quitting Facebook!"

The blog lists Peter Rojas of the blog GDGT and Matt Cutts from Google as among those who have deleted or deactivated their accounts.

That blog also posted a list of 10 reasons most people will not be able to part with their Facebook accounts, an apparent nod to the fact that, as Facebook continues to grow and to spread into other websites, it may become necessary to have an active Facebook account to make full use of the Web.

The New York Times also reports that people who once made a career promoting Facebook now may cancel their accounts. The newspaper says Deanna Zandt, author of a book called "Share This! How You Will Change the World With Social Networking," may delete hers.

"It's getting harder and harder for me to say, yes it's worth it, you're giving up your privacy to get these services, and I have to put my money where my mouth is," she told the paper.

Tech blogs have asked whether a "Great Facebook Deactivation Wave" is about to take off, and have listed reasons people should ditch the popular site.

Meanwhile, there is a second set of concerns about how difficult it is to delete your Facebook account if and when you decide that's what you'd like to do.

Facebook says on its website that you can "deactivate" your account by following these steps:

"To deactivate your account, navigate to the 'Settings' tab on the Account Settings page," the site says. "Deactivation will remove your profile and content associated with your account from Facebook. In addition, users will not be able to search for you or view any of your information."

But the social network will hold onto your photos and posts if you only "deactivate" your account.

If you want to completely "delete" your account -- meaning that all of your information will be deleted from view, although some of it may remain on Facebook's servers for a bit -- you can follow these instructions from wikiHow.

The user-edited site lists several methods for deleting a Facebook account. One of them is a seven-step process.

In his podcast, Laporte said one of the main reasons he felt he needed to delete his Facebook account is that having one gives his friends and family members an incentive to join, too.

And, because many people don't understand that everything on Facebook can be public, Laporte doesn't think it's responsible to have an account. By having a Facebook page, he said, "I'm coercing people I'm in relationships with to do something bad."

Florida and AZ Bill

Florida candidates backing Arizona law

Some of the leading statewide Republican candidates in Florida are coming out in favor of a new law aimed at curbing illegal immigration in Arizona.

The Republican Party's front-runner for governor, Florida Attorney General Bill McCollum, threw his support Thursday behind a tough new immigration law in Arizona that he criticized as ``far out'' just two weeks ago.

The law makes it a crime for immigrants not to carry legal papers and gives local police the power to question people suspected of being in the U.S. illegally.

Passed in a capitol 1,600 miles away from Tallahassee, the law is nevertheless emerging as a campaign issue in Florida as candidates jockey for the conservative voters who dominate Republican primaries.

By coming out in favor of the law, McCollum joined U.S. Senate contender Marco Rubio in abandoning his previous opposition to the toughest crackdown on illegal immigration in the nation. Both have said they changed positions in light of amendments that aimed to outlaw ethnic and racial profiling by the police.

``I support Arizona's law as amended, and if the federal government fails to secure our borders and solve the problem of illegal immigration, I would support a similar law for Florida,'' McCollum said in a statement Thursday.

But the amendments didn't change a single vote in the Arizona Legislature or quash a mounting backlash from Hispanic and religious groups. On Thursday, a group of Arizona religious leaders made an ``emergency'' lobbying trip to Washington, The Associated Press reported, while the city of Los Angeles joined about a dozen other municipalities in declaring a boycott of the state of Arizona.

That elicited a response from Holly Benson, embroiled in a hotly contested Republican primary for Florida attorney general. She said: ``Illegal immigration is a serious problem facing our country and it is unfortunate that the Los Angeles City Council came down in support of illegal activity, over the actions of Arizona's attempt to enforce the law.''

McCollum's flip-flop comes days after a recent poll showed him losing ground to an unexpected and well-financed Republican rival, Rick Scott, who backs the Arizona law. After spending at least $4.7 million on a statewide television blitz, the little-known former healthcare executive is capturing 24 percent of the Republican vote, according to a Mason-Dixon poll. McCollum, who has been in politics for two decades, received 38 percent in the survey.

The leading Democratic candidate for governor, Chief Financial Officer Alex Sink, opposes the law. So does Rubio's major Senate rivals, the newly independent Gov. Charlie Crist and Democratic U.S. Rep. Kendrick Meek of Miami.

The Florida governor's race has parallels in Arizona, where Sen. John McCain -- a former proponent of sweeping immigration reform -- calls in a new campaign ad for the government to ``complete the danged fence'' along the Mexican border. In an election year that looks dangerous for incumbents, McCain is fending off a conservative Republican challenger who backs the new Arizona law.

Proponents say the measure will help bring law and order to a state where the federal government allows illegal immigration to run amok. When first asked about the law on April 27, McCollum said, ``I think Arizona has its own unique problems. I don't think Florida should enact laws like this quite that far out.''

On Thursday, McCollum issued a statement that said, ``Arizona leaders recently made needed changes that address concerns I had that the law could be abused and misused to perform racially profiled stops and arrests. I do not support any measure that would result in racial profiling or other unintended consequences for law-abiding American citizens.''

Read more: http://www.miamiherald.com/2010/05/13/1628658/florida-candidates-backing-arizona.html#ixzz0nsI29Su6

Effects of New Immigration Enforcement Law

Phoenix Counts Big Boycott Cost

By RANDAL C. ARCHIBOLD

Published: May 11, 2010

New York Times

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Boycotts threatened or carried out over Arizona’s new immigration enforcement law could cost the Phoenix metropolitan area $90 million in hotel and convention business over five years, Mayor Phil Gordon said Tuesday.

Mayor Phil Gordon

The figure, which does not include incidental spending in restaurants and shops, was calculated after four organizations canceled conventions or conferences and a dozen others said they would abandon visits if the law was not repealed, he said.

The fallout comes as the state, heavily dependent on tourism, struggles to right its economy. “I don’t think there ever would be a good time not to have $90 million,” said Mr. Gordon, a Democrat who opposes both the law and the boycotts.

The law, scheduled to take effect in July, greatly expands the power of the local police to check the immigration status of people they suspect are in the country illegally and makes it a state crime, paralleling federal law, to not carry immigration papers.

Several major civil rights groups have urged people to avoid the state in protest.

Paul Senseman, a spokesman for Gov. Jan Brewer, a Republican, who signed the law on April 23, called boycotting the state “thoughtless and harmful” and said it was a distraction from the underlying issue of the federal government’s failure to control immigration and the border.

“An economic boycott of Arizona just adds to the massive economic burden Arizonans have sustained for years due to the federal government’s failure to secure our borders,” Mr. Senseman said.