November 4, 2006
Marriage Amendments & Unintended Consequences
This is what makes lawyers great: creative arguments. The article begins:
Last year, an Ohio man accused of abusing his girlfriend tried a unique defense: He argued that the domestic violence law under which he was charged conflicted with a new constitutional amendment banning same-sex marriage and other relationships that sought to "approximate" marriage.
Michael Carswell's case wound its way through the legal system and is now before the Ohio Supreme Court. It has touched off similar challenges to domestic violence statutes in the state. Two appellate courts found that the constitutional amendment exempts unmarried couples from prosecution under domestic violence laws, but eight courts have ruled otherwise.
LA Times Op Ed on Military Commissions Act's Future
"Punting habeas Congress can't complain about activist judges when it knowingly passed a detainee law of questionable constitutionality." Who knows if this op-ed piece is right. As noted below, though, the challenges are underway. Here's to checks and balances!
Child Porn Statute Fails to Do Its Job
"Although the pornographic images were automatically saved to an internet cache file on the computer's hard drive, there is no evidence that Diodoro knew that the images were saved. Therefore, the issue is whether merely viewing child pornography on the internet without intentionally saving or downloading any of the images constitutes 'knowing possession' of child pornography under section 6312(d). We conclude that it does not." So ruled a Pennsylvania court interpreting what "possession" means in the age of computers. The opinion is here. The court expressed regret at the failure of the legislature to criminalize merely viewing such materials:
We note that it is well within the power of the legislature to criminalize the act of viewing child pornography on a website without saving the image. The language used in section 6712(d), however, is simply “possession.” Because this is a penal statute with an ambiguous term when it comes to computer technology, it must be construed strictly and in favor of the defendant. See 1 Pa.C.S.A. § 1928(b)(1). A defendant must have fair notice that his conduct is criminal. Because of the ambiguity, sufficient notice was not provided here. For this reason, we are constrained to reverse and leave it to the legislature to clarify the language if it intends to make the mere “viewing” of child pornography a crime.
Supreme Court Grants Cert in Sentencing Guidelines Case
The Court will interpret the new version of the Sentencing Guidelines, answering (one hopes) according to an article on scotusblog: "whether a criminal sentence that is within the federal guidelines is to be treated as reasonable, and thus valid. It also said it would rule on whether a sentence below the guideline range is reasonable. It accepted for review two cases on an issue that has led to a multitude of rulings in lower courts, producing a conflict at least on key aspects of that question." The article is here.
November 3, 2006
When Does Limitations Run in False Arrest?
The Supreme Court on November 6 will hear a case, Wallace v. City of Chicago, involving the question of when limitations begins to run on a false arrest claim. You can read an interesting perspective on it here. The case below from the Seventh Circuit held that limitations runs upon arrest, as that's when the injury occurs.
This is a tough one. Ordinary limitations argument seem to suggest the Seventh Circuit was correct: injury occurs, and the improperly arrested defendant surely knows that, on the day of arrest. But, for policy reasons, do we really want to encourage civil suits (Wallace was a 1983 action) to be filed while the criminal process is pending? I am no Fifth Amendment expert, but this sounds like a procedural morass, and a rule that encourages litigation.
October 31, 2006
8th Circuit Affirms Injunction Against Enforcement of South Dakota Abortion Statute
The opinion is here.
Supreme Court Transcripts
Arguments from October 30 are here.
I moved here from Texas, where partisan mudslinging in judicial campaigns wasn't, despite what people think, common. Now I'm in Georgia. Read this for flavor of one of the nastiest races we've had. "Legislating from the bench" is one of the attacks.
I'm new to the state, but Hunstein is a good, fair judge, imho.
Wherever you are, and whatever your politics, vote.
CAFA not a Magnet
An interesting article on law.com about how state AGs aren't swarming to use the power granted by the Class Action Fairness Act to review settlements for abuse. The speculation is that AGs are influencing settlements informally.
October 30, 2006
Supreme Court to Take 35 USC 271(f) Case
A story on Reuters reports that the Supreme Court has granted cert in a case that will interpret 35 USC 271(f). My earlier post about the Federal Circuit's interpretations of that statute can be found here and the substantive one, here.
October 29, 2006
Ninth Circuit Decides Federal Labor Standards Act Case. The Ninth Circuit in Miller v. Farmers Ins. Exchange construed 29 C.F.R. § 541.203, which exempts insurance claims adjusters if they perform activities such as interviewing witnesses, making recommendations regarding coverage and value of claims, determining fault and negotiating settlements. There's an article about it here. The plaintiffs lost.
The New Jersey Gay Marriage Decision is Getting Attention. There's an interesting article over at Huffingtonpost.com.
Military Commissions Act v. U.S. Constitution. The Village Voice carries this thoughtful article, which has themes I've noted here.