December 2, 2006
Michigan Legislature: If You or Even Someone Else Got Her Pregnant, You Can't Move Out
This is, imho, nuts. The Michigan legislature is considering a bill which, among other things, makes it a crime for a man to move out, or even threaten to move out, if his girlfriend won't get an abortion. In fact, as I read the bill, if I know that a woman I am living with was impregnated by another man, I can't threaten to move out if she won't get an abortion! No, I'm not making this up.
Don't get me wrong, abortion should be a last option, but come on and think: is it going to really be a good idea to force a man to continue to live with a woman who is carrying the child of another man? My goodness me.
November 30, 2006
Oral Argument in Greenhouse Gas Case
Earlier I noted that one of the cases the Supreme Court would be addressing is a Chevron deference type of case, Mass. v. EPA. Oral argument in it was held yesterday. You can find the transcript here and articles about it here and here with NPR's coverage here and another take, even, here. (Seems there was some interest in this one!).
November 29, 2006
Parts of Antiterrorism Plans Rule Unconstitutional The Washington Post reports that a federal judge in Los Angeles has found an executive order, issued just after 9/11, unconstitutional.
Same Sex Marriage Reciprocity, or Not? Virginia court dodges the question of whether its laws recognize same-sex unions lawful in other states. There's an article here about this decision, where the court basically held that Vermont courts, not those of Virginia, should decide the dispute.
Abuse of ADA Statute? There's an interesting piece here about potential abuse by ADA plaintiffs, who file suit against businesses to get "access" they never want. Given that ADA plaintiffs don't get monetary damages in such cases, what's the incentive? Attorneys fees, and, allegedly, sharing of them with the nominal plaintiff. You can read about it here.
November 28, 2006
Interesting Case on Computers & "Possession" of files
The Ninth Circuit in this case had to determine whether a files that were located in "Active Temporary Internet Files" and the "Deleted Temporary Internet Files" areas of the hardrive of his computer were "possessed" for purposes of the PROTECT act. The court's reasoning is interesting:
According to the evidence before the district court, when a person accesses a web page, his web browser will automatically download that page into his Active Temporary Internet Files, so that when the site is revisited the information will come up much more quickly than it would have if it had not been stored on the computer’s own hard drive. When the Active Temporary Internet Files get too full, they spill excess saved information into the Deleted Temporary Internet Files. All of this goes on without any action (or even knowledge) of the computer user. A sophisticated user might know all of that, and might even access the files. But, “most sophisticated —or unsophisticated users don’t even know they’re on their computer.”
Much of the above also appears in our discussion of this area in Romm, 455 F.3d at 997-1001. There we also pointed out that “the cache is a ‘system-protected’ area, which the
operating system tries to prevent users from accessing by displaying a warning that access involves an ‘unsafe’ system command.” Id. at 998. We also noted that a user, who knows what he is doing, can go forward and get access to the cache files anyway. Id. In the case at hand, there was no evidence that Kuchinski was sophisticated, that he tried to get access to the cache files, or that he even knew of the existence of the cache files.
There is no question that the child pornography images were found on the computer’s hard drive and that Kuchinski possessed the computer itself. Also, there is no doubt that he had accessed the web page that had those images somewhere upon it, whether he actually saw the images or not. What is in question is whether it makes a difference that, as far as this record shows, Kuchinski had no knowledge of the images that were simply in the cache files. It does.
So, we don't necessarily possess everything that we possess on our computers. I guess that's a good thing since, from what I can tell, there's a lot of stuff on there that I have no clue about.
Seventh Circuit Enjoins Video Game Porn Statute
Here's an interesting decision where the Seventh Circuit unanimously held that an Illinois statute designed to prevent minors from being exposed to sexual content while playing video games was unconstitutional. The provision at issue defined the prohibited content as follows:
[T]hose that the average person, applying con- temporary community standards would find, with respect to minors, is designed to appeal or pander to the prurient interest and depict or represent in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act or a lewd exhibi- tion of the genitals or post-pubescent female breast.
Applying strict scrutiny to this prior restraint, the Court criticized the drafting of the legislation:
Inexplicably, the State of Illinois chose to ignore both Ginsberg’s and Miller’s third prongs in creating the SEVGL’s definition of “sexually explicit.” The State thereby simultaneously failed to narrowly tailor the statute and created a statute that is unconstitutionally overbroad. See Grayned v. City of Rockford, 408 U.S. 104, 114 (1972) (“A clear and precise enactment may neverthe- less be ‘overbroad’ if in its reach it prohibits constitutionally protected conduct.”).
Oral Argument on FRCP 8
I teach civ pro, and loved reading this transcript from oral argument in the Supreme Court, available here, about the requirements of Rule 8 (notice pleading) in antitrust suits.
SCOTUS Oral Argument on EEOC 180 Day Statute of Limitations
Yesterday the Supreme Court held oral argument in Ledbetter, and you can read the oral argument transcript here. There's an interesting write up here in the Washington Post, that points out that every justice, except Thomas, asked at least one question.
It's an interesting problem: suppose an act of discrimination occurs, and your next paycheck is $10 less as a result. You don't complain to the EEOC. Over time, the impact adds up and compounds itself, and you finally sue. Should the rule be that you must seek redress within 180 days of the time the wrong occurs, or is each paycheck that is diminished its own separate violation?
If I was a betting man, I'll be they hold you have to sue within 180 days of the act. That's going to result in fewer suits, of course, since when the act first occurs there's no real damages, and later on the claim is barred. This may be one for Congress to remedy. Stay tuned.
November 27, 2006
Interesting Opinion from Vermont's Supreme Court
State v. Hazelton, __ A.2d __, 2006 WL 33758387 (Vt. Nov. 22, 2006) is quite an interesting case, involving multiple issues and several opinions. The defendant allegedly raped a ten year old girl. He was charged with two counts for a single rape under this statute, one count under each of the italicized subsections:
a) A person who engages in a sexual act with another person and
(1) Compels the other person to participate in a sexual act:
(A) Without the consent of the other person; or
(B) By threatening or coercing the other person; or
(C) By placing the other person in fear that any
person will suffer imminent bodily injury; or
. . .
(3) The other person is under the age of 16, except where the
persons are married to each other and the sexual act is
consensual; . . .
shall be imprisoned for not more than 20 years, or fined not more
than $10,000.00, or both.
The question presented (in addition to an interesting evidentiary question on prior consistent statements, one that required the court to limit its earlier interpretation of that rule) was whether these were, in fact, two different crimes: a defendant can't be charged with two crimes for one act.
The majority held that there was no difference between the two provisions, though admitting that on "cursory review, the two charges against defendant do seem facially different." By interpreting the statute in light of then-prevailing common law, the court held that (1) the "compel" element was present in both statutes since "no actual force or compulsion is necessary to commit the offense" and so "no greater degree of compulsion is actually required" under the first subsection; (2) consent by a child under 16 was impossible, and so sex with a child was "nonconsensual" and so the requirement of "consent" did not make the two provisions differ. To reach the latter conclusion -- that consent by a child under 16 was impossible -- the majority relied on the common law rule from England, as adopted by Vermont. So, what the court was faced with, in its view, was a statute that if read literally allowed consent to be a defense to rape of a child, which interpretation it rejected: "If the legislature really intends consent to be available as a defense for persons having sexual contact with underage children, and to render underage children capable of consent, it must expressly so declare" in light of the canon that statutes must clearly show they intend to repeal the common law.
The dissent disagreed, and wrote a lengthy opinion that is hard to do justice to in summary. Boiled down, however, the dissent argued that the starting place was the language of the statute, which did permit consent as a defense, and so the two crimes were different, since one had the element of consent, and the other did not. There was no reason for the legislature to have clearly intended to repeal the common law, the dissent believeed because the "Legislature has covered 'the entire subject matter' statutorily and the common law is no longer determinative.