November 18, 2006
Florida Supreme Court Unanimously Affirms Constitutionality of Child Luring Statute. A Florida statute designed to protect children from online predators was found valid over multiple constitutional challenges. You can read it here
Eleven Spam E-mail Messages Not Enough to Violate CAN-SPAM. A unanimous Fourth Circuit affirmed summary judgment in favor of a defendant travel agency which sent noscitur a sociis (a word is generally
known by the company that it keeps), in its opinion.
More on the President's Judicial Nominations. John Dean has an interesting article here.
Gas Price Gouging Bill Coming, Whether we Need it or Not. There's an interesting piece from the Associated Press here.
November 16, 2006
Third Circuit on Intent
The section of CAFA that allows an appellate court to accept an appeal from a district court order granting or denying a motion to rmand a class action so long as application is made "not less than" a week after the order (and, so when read literally means you have to wait a week to appeal, but then have forever to do so), resulted in some interesting observations about legislative intent and text from the Third Circuit in Morgan v. Gay, 466 F.3d 276 (3rd Cir. 2006). The court, while emphasizing that ordinarily legislative history should not be relied upon for ambiguous statutes, and even less reliance should be given to it for unambiguous text, nonetheless stated that "in that rare instance where it is uncontested that legislative intent is at odds with the literal terms of the statute, then a court's primary role is to effectuate the intent of Congress even if a word in the statute instructs otherwise." In that case, the court noted that the legislative history showed the appeal had to be filed "within" seven days, and so the language in the statute, it reasoned, was a typographical error.
Interesting New Article
SENTENCING GUIDELINES, AFTER BOOKER, THROUGH A BLOOMIAN LENS, Daniel K. Brough, 82 N.D. Law Rev. 413 (2006) provides an interesting analysis of interpretations of the federal sentencing guidelines. The article is not online, but the review's site is here.
Bush to Renominate Slate of Judges Dems Already Declared DOA. Why? Read here.
Forever in Limbo. Is it possible that a foreign national -- not an illegal immigrant mind you -- with alleged ties to terrorism could be held in prison forever, without habeas or trial or means to contest the accusation in a civilian court? Yes siree, says the DOJ. Read the article about our favorite Military Commissions Act here. What were they thinking? I guess if we want the Iraquis to be more like us, we might as well meet them in the middle, between democracy and despotism.
November 15, 2006
NPR on Crack Cocaine
I didn't say NPR WAS on it, though my brother-in-law might often say that, given his political leanings.
NPR is talking about the issue, discussed below, about the disparity in sentencing guidelines that has, for years, been unaddressed even though apparently everyone agrees it's idiotic. Read, or hear, the story here.
November 14, 2006
Democrats & Tort Legislation
An interesting article on law.com posits that the Democratic-controlled Congress will not be much interested in pursuing tort reform. Probably so -- my own hope is that they'll undo some of the damage to our system that's been done. My goodness - rich folks get tort cases brought, but not poor ones because noneconomic damages are capped. Where's the policy in that?
I don't mean to be flip, but the entire premise of a lot of this legislation was that we can't trust juries -- ourselves -- to award what we think is fair compensation in a particular case. Give me a jury in a courtroom over a politician in a state capital, or DC, any day on that question.
November 13, 2006
Crack Cocaine Follow-Up
As noted below, a sentencing guideline results in imposing a greater imprisonment for possession of certain kinds of cocaine even though technically the two "kinds" are the same. A 100-1 difference is possible. A hearing will be held on this issue, and there's an excellent voice of reason op-ed piece you can read here.