In conclusion, I find that I'm wary of her opinions on copyright; but hopeful they have changed. I'd like more information on her opinions of the constitutionality of RFRA, which she avoided. And I want more info on her opinions of rights to privacy. Also, some clarity on those FOIA requests she denied saying she didn't want to “unreasonably hamper agencies in their decision-making.”
All of these things will, surely, be discussed to death and back, and be brought up in the confirmation hearings. But she'll be able to avoid most of the hot-button issues. It will be informative to see which questions she avoids, and which she answers.
I think she'll be a good moderate on the courts. I'm still not sure how I feel about moderates on the SCUSA, though.
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Wednesday, May 27, 2009
Sotomayor (pt IV)
Hankins vs Lyght
I like to call this one Old Dude vs Methodists. It's the case of a minister suing the church because they fired him. He had refused to take mandatory retirement at the age of 70- a church policy.
http://www.scotusblog.com/wp/judge-sotomayors-appellate-opinions-in-civil-cases/
The crux of Sotomayor's dissenting opinion seems to be:
+ Both parties waived RFRA in letter briefs.
+ "The Court found RFRA's protections 'so out of proportion to a supposed remedial or preventive object that [the statute] cannot be understood as responsice to, or designed to prevent, unconstitutional behavior.'"
+ Even if RFRA wasn't waived, it doesn't apply to a dispute between two private parties. and "Two provisions of the statute implicitly limit its application to disputes in which the government is a party."
+ And that ADEA couldn't apply to a member of the clergy v the church because that is a matter of internal religious governance, and requires too much interaction between the state and the religion. She cites several cases making it clear that this is only the case due to the position of the person being forced to retire. In her own words "Here... the dispute is between a minister with primarily religious duties and a church that no longer wishes him to serve as pastor of a congregation." + Also "[M]y conclusion is substantially the same as that of other Circuits: courts may not adjudicate employment discrimination lawsuits brought by clergy members challenging a religious body's refusal to select or retain them as spiritual leaders."
If you've read all this and plan on listening to the confirmation hearings, do yourself a favor- as this one is almost sure to come up- learn about the Catholic Bishop rule.
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I like to call this one Old Dude vs Methodists. It's the case of a minister suing the church because they fired him. He had refused to take mandatory retirement at the age of 70- a church policy.
The district court dismissed the claim; on appeal, the Second Circuit reversed, holding that the Religious Freedom Restoration Act (RFRA), which - subject to certain exceptions - prohibits the government from substantially burdening the exercise of religion, had effectively amended the ADEA by providing a defense for ADEA violations.
http://www.scotusblog.com/wp/judge-sotomayors-appellate-opinions-in-civil-cases/
The crux of Sotomayor's dissenting opinion seems to be:
+ Both parties waived RFRA in letter briefs.
+ "The Court found RFRA's protections 'so out of proportion to a supposed remedial or preventive object that [the statute] cannot be understood as responsice to, or designed to prevent, unconstitutional behavior.'"
+ Even if RFRA wasn't waived, it doesn't apply to a dispute between two private parties. and "Two provisions of the statute implicitly limit its application to disputes in which the government is a party."
+ And that ADEA couldn't apply to a member of the clergy v the church because that is a matter of internal religious governance, and requires too much interaction between the state and the religion. She cites several cases making it clear that this is only the case due to the position of the person being forced to retire. In her own words "Here... the dispute is between a minister with primarily religious duties and a church that no longer wishes him to serve as pastor of a congregation." + Also "[M]y conclusion is substantially the same as that of other Circuits: courts may not adjudicate employment discrimination lawsuits brought by clergy members challenging a religious body's refusal to select or retain them as spiritual leaders."
If you've read all this and plan on listening to the confirmation hearings, do yourself a favor- as this one is almost sure to come up- learn about the Catholic Bishop rule.
Read More...
Sotomayor (pt II)
Copyright:
Castle Rock Entertainment Inc. v. Carol Publishing Group
I'm thinking since this ruled in favor of the copyright holder, we'll be hearing a lot about it.
The complaint:
Carol Publishing Group published a book called The Seinfeld Aptitude Test, or The SAT. At first, NBC liked it and nothing happened. Later, Castle Rock asked them to stop. They didn't, so Castle Rock took 'em to court.
Essentially the court said "The Copyright Act of 1976 ("Copyright Act"), 17 U.S.C. §§ 101-803, grants copyright owners a bundle of exclusive rights, including the rights to "reproduce the copyrighted work in copies" and "to prepare derivative works based upon the copyrighted work."" And that the Carol Publishing Group had produced a derivative work, since there were so many usages of the fictional "facts" relating to the show.
Seems fair. The book was just a regurgitation of trivia from the episodes. No one would doubt that selling a ticket to a live play of an episode, where everything is done, and said, exactly the same, is not fair use. That's how the court ruled. The book took away the copyright holder's rights to the derivative market. If the book had, instead, been transformative- taking that trivia and making something else out of it- there may have been a case for fair use.
EDITED to add:
Also, looking at New York Times Co. v. Tasini she doesn't seem aware that there's a difference between print publication and electronic publication. As this has been an issue of dissent lately- re: The Writers' Strike, et al- I'd hesitate to harp on it. Especially in light of the fact that the SCUSA has already reversed Sotomayor's finding.
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Castle Rock Entertainment Inc. v. Carol Publishing Group
I'm thinking since this ruled in favor of the copyright holder, we'll be hearing a lot about it.
The complaint:
Carol Publishing Group published a book called The Seinfeld Aptitude Test, or The SAT. At first, NBC liked it and nothing happened. Later, Castle Rock asked them to stop. They didn't, so Castle Rock took 'em to court.
Essentially the court said "The Copyright Act of 1976 ("Copyright Act"), 17 U.S.C. §§ 101-803, grants copyright owners a bundle of exclusive rights, including the rights to "reproduce the copyrighted work in copies" and "to prepare derivative works based upon the copyrighted work."" And that the Carol Publishing Group had produced a derivative work, since there were so many usages of the fictional "facts" relating to the show.
Seems fair. The book was just a regurgitation of trivia from the episodes. No one would doubt that selling a ticket to a live play of an episode, where everything is done, and said, exactly the same, is not fair use. That's how the court ruled. The book took away the copyright holder's rights to the derivative market. If the book had, instead, been transformative- taking that trivia and making something else out of it- there may have been a case for fair use.
EDITED to add:
Also, looking at New York Times Co. v. Tasini she doesn't seem aware that there's a difference between print publication and electronic publication. As this has been an issue of dissent lately- re: The Writers' Strike, et al- I'd hesitate to harp on it. Especially in light of the fact that the SCUSA has already reversed Sotomayor's finding.
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Sotomayor (pt I)
I've seen a lot of back and forth on Sotomayor. Let me state that at the outset, I'm a bit worried. She'll be an ideal Souter replacement- centrist (hopefully leftist). She was appointed by Bush1, Clinton, and on the short list of Bush2 appointees. And everyone is arguing back and forth over everything, already...
So, screw it, I'm going to take a look for myself.
First, to clarify my starting position:
She's kinda a non-entity, most people seem to agree that she's never really made any big precedence forming cases. Which, apparently, isn't unusual for an Appellate Court Justice. She is, almost certainly, a centrist. Souter is also a centrist, though he's considered part of the liberal wing. I'm very interested in her confirmation hearings, and I'm not very hopeful. (She's Catholic- the sixth on the current court- the Bushes loved her, and she ruled for the Church in Methodist v Old Dude.)
Today's (first?) review:
Centers for Reproductive Law and Policy v Bush (2002)
They dismissed the case, but for different reasons than it was originally dismissed. There's precedence in her reasoning. Here are the important bits:
On 1st Amendment:
+ "The crux of plaintiffs' First Amendment claim is their contention that the restrictions chill foreign NGOs from collaborating with domestic NGOs like CRLP because such collaboration may be viewed as promoting abortion and thus would jeopardize the foreign NGOs' receipt of U.S. government funds. Plaintiffs argue that such collaboration is essential to their ability to carry out their mission as advocates of reproductive rights and that depriving them of this ability violates their freedom of speech and association."
+ "In reaching its conclusion, the court relied heavily on our analysis in [Planned Parenthood Federation of America, Inc. v. Agency for Inter-national Development]."
+"Our outcome on the merits is thus "foreordained" by Planned Parenthood. Under the Norton/Airec/i exception acknowledged in Steel Co., we need not reach the academic question of Article III standing in this case."
{Which is them saying, essentially, "we can bypass the hard question of jurisdiction because there's already precedence on the merits, and we reject the merits, just as we did in Planned Parenthood."}
On Due Process:
+ "Because Planned Parenthood did not address due process claims brought by domestic NGOs in this context, we address the due process claim separately and dismiss it on the alternative ground of prudential standing."
+ "Plaintiffs' claims do not fall within the "zone of interests" protected by the Due Process Clause. "
+ "It is not the plaintiffs, however, who are allegedly left uncertain of their rights by unconstitutionally vague language in a government provision; it is the foreign NGOs who are allegedly left in this position. Plaintiffs' harm is derivative of this due process-type harm, and their alleged injury (albeit an unactionable one) concerns First Amendment interests. Plaintiffs' allegation, simply put, is that the vague language of the Standard Clause causes the foreign NGOs to be overly cautious in avoiding interaction with plaintiffs, which in turn harms plaintiffs' speech and association interests. On appeal, plaintiffs expressly acknowledge that "[t]his vagueness claim is premised on the [restrictions'] chilling effect on protected speech and association." As plaintiffs do not assert a harm to their own interest in receiving due process of law, this is precisely the sort of claim that the prudential standing doctrine is designed to foreclose. Plaintiffs cannot make their First Amendment claims actionable merely by attaching them to a third party's due process interests. See Haitian Refugee Ctr. v. Gracey, 809 F.2d 794, 809 (D.C.Cir. 1987) (explaining that because due process rights "do not protect a relationship" between a third party and a litigant, a plaintiff "could never have standing to challenge a statute solely on the ground that it failed to provide due process to third parties not before the court")."
{The Plaintiff is saying "our rights are harmed because of ambiguity causing foreign NGOs to not interact with us." The court says "Too bad. You can bring suit over your rights, but you can't bring suit over someone else's rights. Therefore you don't have 'prudential standing' under Due Process."}
On Equal Protection:
+ "Plaintiffs argue that the district court failed to undertake a separate analysis of their Article III standing to bring an equal protection claim. Because we agree with plaintiffs that the case law regarding constitutional standing for equal protection claims is distinct, and because Planned Parenthood does not foreclose this claim on the merits, we address the question of Article III standing with respect to this claim."
+ "Because this classification "neither proceeds along suspect lines nor infringes fundamental constitutional rights," it must "be upheld against equal protection challenge if there is any reasonable state of facts that could provide a rational basis for the classification.""
+ "The Supreme Court has made clear that: the government is free to favor the anti-abortion position over the pro-choice position, and can do so with public funds."
{Essentially, the Court said: "You have standing, here; but because The SCUSA has said this behavior of favoritism is okay, precedence says we have to dismiss this claim because you have no merit."}
My Conclusion:
Doesn't tell us much. The Plaintiff was doomed from the get go because of how similar their case was to one brought by Planned Parenthood, to the same Court, in 1998 (4 years earlier). The precedence is from how standings and merits questions were resolved- which disagreed with why the case was dismissed; but not the dismissal. In other words, it's very appellate-like. I will say she did seem to consider the case and not just trumpet the governmental position over or above the plaintiff. In my opinion, that's a good thing.
Read More...
So, screw it, I'm going to take a look for myself.
First, to clarify my starting position:
She's kinda a non-entity, most people seem to agree that she's never really made any big precedence forming cases. Which, apparently, isn't unusual for an Appellate Court Justice. She is, almost certainly, a centrist. Souter is also a centrist, though he's considered part of the liberal wing. I'm very interested in her confirmation hearings, and I'm not very hopeful. (She's Catholic- the sixth on the current court- the Bushes loved her, and she ruled for the Church in Methodist v Old Dude.)
Today's (first?) review:
Centers for Reproductive Law and Policy v Bush (2002)
They dismissed the case, but for different reasons than it was originally dismissed. There's precedence in her reasoning. Here are the important bits:
On 1st Amendment:
+ "The crux of plaintiffs' First Amendment claim is their contention that the restrictions chill foreign NGOs from collaborating with domestic NGOs like CRLP because such collaboration may be viewed as promoting abortion and thus would jeopardize the foreign NGOs' receipt of U.S. government funds. Plaintiffs argue that such collaboration is essential to their ability to carry out their mission as advocates of reproductive rights and that depriving them of this ability violates their freedom of speech and association."
+ "In reaching its conclusion, the court relied heavily on our analysis in [Planned Parenthood Federation of America, Inc. v. Agency for Inter-national Development]."
+"Our outcome on the merits is thus "foreordained" by Planned Parenthood. Under the Norton/Airec/i exception acknowledged in Steel Co., we need not reach the academic question of Article III standing in this case."
{Which is them saying, essentially, "we can bypass the hard question of jurisdiction because there's already precedence on the merits, and we reject the merits, just as we did in Planned Parenthood."}
On Due Process:
+ "Because Planned Parenthood did not address due process claims brought by domestic NGOs in this context, we address the due process claim separately and dismiss it on the alternative ground of prudential standing."
+ "Plaintiffs' claims do not fall within the "zone of interests" protected by the Due Process Clause. "
+ "It is not the plaintiffs, however, who are allegedly left uncertain of their rights by unconstitutionally vague language in a government provision; it is the foreign NGOs who are allegedly left in this position. Plaintiffs' harm is derivative of this due process-type harm, and their alleged injury (albeit an unactionable one) concerns First Amendment interests. Plaintiffs' allegation, simply put, is that the vague language of the Standard Clause causes the foreign NGOs to be overly cautious in avoiding interaction with plaintiffs, which in turn harms plaintiffs' speech and association interests. On appeal, plaintiffs expressly acknowledge that "[t]his vagueness claim is premised on the [restrictions'] chilling effect on protected speech and association." As plaintiffs do not assert a harm to their own interest in receiving due process of law, this is precisely the sort of claim that the prudential standing doctrine is designed to foreclose. Plaintiffs cannot make their First Amendment claims actionable merely by attaching them to a third party's due process interests. See Haitian Refugee Ctr. v. Gracey, 809 F.2d 794, 809 (D.C.Cir. 1987) (explaining that because due process rights "do not protect a relationship" between a third party and a litigant, a plaintiff "could never have standing to challenge a statute solely on the ground that it failed to provide due process to third parties not before the court")."
{The Plaintiff is saying "our rights are harmed because of ambiguity causing foreign NGOs to not interact with us." The court says "Too bad. You can bring suit over your rights, but you can't bring suit over someone else's rights. Therefore you don't have 'prudential standing' under Due Process."}
On Equal Protection:
+ "Plaintiffs argue that the district court failed to undertake a separate analysis of their Article III standing to bring an equal protection claim. Because we agree with plaintiffs that the case law regarding constitutional standing for equal protection claims is distinct, and because Planned Parenthood does not foreclose this claim on the merits, we address the question of Article III standing with respect to this claim."
+ "Because this classification "neither proceeds along suspect lines nor infringes fundamental constitutional rights," it must "be upheld against equal protection challenge if there is any reasonable state of facts that could provide a rational basis for the classification.""
+ "The Supreme Court has made clear that: the government is free to favor the anti-abortion position over the pro-choice position, and can do so with public funds."
{Essentially, the Court said: "You have standing, here; but because The SCUSA has said this behavior of favoritism is okay, precedence says we have to dismiss this claim because you have no merit."}
My Conclusion:
Doesn't tell us much. The Plaintiff was doomed from the get go because of how similar their case was to one brought by Planned Parenthood, to the same Court, in 1998 (4 years earlier). The precedence is from how standings and merits questions were resolved- which disagreed with why the case was dismissed; but not the dismissal. In other words, it's very appellate-like. I will say she did seem to consider the case and not just trumpet the governmental position over or above the plaintiff. In my opinion, that's a good thing.
Read More...
Tuesday, May 26, 2009
Ethanol is worse than Gasoline
Like "Clean Coal", Ethanol as "'GREEN' alternative energy" is fictitious bullshit dreamed up by- surprise surprise- people who stand to gain lots and lots of money from its use. Ethanol is crap. It raises the price of food. It causes more smog than gasoline. It destroys engines to the tune of ~$1000/repair. And it does nothing to curtail our use of crude oil to manufacture all sorts of things.
Environmentalism is Big Business, easily co-opted for it's popularity, and just as suspect as the corporations it so often opposes. Spend some time, and read the following article. The article indicates we need some perspective, better studies, and less Ethanol.
(via /.)
(Article: The Great Ethanol Scam, by Ed Wallace)
(snippets after the fold)
...
...
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Environmentalism is Big Business, easily co-opted for it's popularity, and just as suspect as the corporations it so often opposes. Spend some time, and read the following article. The article indicates we need some perspective, better studies, and less Ethanol.
(via /.)
(Article: The Great Ethanol Scam, by Ed Wallace)
(snippets after the fold)
First, the primary job of the Environmental Protection Agency is, dare it be said, to protect our environment. Yet using ethanol actually creates more smog than using regular gas, and the EPA's own attorneys had to admit that fact in front of the justices presiding over the Third Circuit Court of Appeals in 1995 (API v. EPA).
Second, truly independent studies on ethanol, such as those written by Tad Patzek of Berkeley and David Pimentel of Cornell, show that ethanol is a net energy loser. Other studies suggest there is a small net energy gain from it.
Third, all fuels laced with ethanol reduce the vehicle's fuel efficiency, and the E85 blend drops gas mileage between 30% and 40%, depending on whether you use the EPA's fuel mileage standards (fueleconomy.gov) or those of the Dept. of Energy.
Fourth, forget what biofuels have done to the price of foodstuffs worldwide over the past three years; the science seems to suggest that using ethanol increases global warming emissions over the use of straight gasoline.
...
On Jan. 16 of this year, Lexus ordered a massive recall of certain 2006 to 2008 models, including the GS Series, IS and LS sedans. According to the recall notice, the problem is that "Ethanol fuels with low moisture content will corrode the internal surface of the fuel rails." In layman's terms, ethanol causes pinpoint leaks in the fuel system; when leaking fuel catches your engine on fire, that's an exciting way to have your insurance company buy your Lexus. Using ethanol will cost Toyota (TM) untold millions.
...
Though the media is ignoring it, one can easily find many stories on BMW (BMWG.DE) blogs relating similar problems with fuel systems damaged by the use of ethanol. Certainly that was the case with Christi Jordan and her 2007 Mini. For weeks it was difficult to start; Moritz BMW in Arlington, Tex., inspected it and found severe carbon buildup inside the engine. On her second trip to the mechanics they decided to test the ethanol content of Christi's fuel and found it was much higher than the federally mandated limit of 10%. This time the fuel pump had been destroyed by the ethanol. The repair bill came to $1,200: As in all cases where vehicles are damaged by ethanol, legally the factory warranty no longer applied.
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Some Lite Reading
Over at the Guardian, there is an article up about a recent "psychic" preliminary test for the JREF's Million Dollar Challenge. If you've never read about this before, or even if you have; do yourself a favor and go read it. The Update at the bottom of the article should be enlightening. Also, check out the review at Bad Astronomy (linked below) by JREF President Dr. Phil Plait.
Scientists put psychic's paranormal claims to the test by Chris French
...
(first seen at BA)
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Scientists put psychic's paranormal claims to the test by Chris French
The JREF challenge can be traced back to 1964 when arch-sceptic, magician and debunker Randi offered $1,000 of his own money to anyone who could prove a paranormal claim under controlled conditions. Other donors quickly came forward to support Randi's efforts and the total prize available has stood at $1m for many years now. Despite the fact that the world is full of people claiming to possess abilities that defy conventional scientific understanding, only a minuscule proportion of them ever put themselves forward for the challenge. A minuscule proportion of a very large number still amounts to several hundred applicants, of course, but this does raise the question of why the vast majority of psychic claimants shun the challenge altogether. One commonly cited reason is that the challenge is fixed by Randi in such a way that no one would ever be able to claim the prize. True believers in the paranormal often have a deep mistrust of Randi and, indeed, he has been likened to Satan himself on more than one occasion.
...
The first volunteer did not choose the reading that had been produced for her. Neither did the second. Or the third. By chance alone, the most likely outcome was for one hit out of ten.
(first seen at BA)
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Monday, May 25, 2009
Veterans and Service-people
Thank You.
Bernard, John, Kenny, Jackie, Arthur, Nemiah, Scully, Toby, and all the rest.
Those who never made it back, or who have since died, are in our thoughts.
I owe each of you, at least, a beer.
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Bernard, John, Kenny, Jackie, Arthur, Nemiah, Scully, Toby, and all the rest.
Those who never made it back, or who have since died, are in our thoughts.
I owe each of you, at least, a beer.
Read More...
Wednesday, May 20, 2009
Comments
Blogspot has, once again, failed miserably. I just got a comment for moderation. It was originally posted almost a week ago. Hopefully this is a one time glitch; if you're having trouble with comments here, feel free to email me, and we'll see what we can figure out:
tom (period) d (period) hand (symbol) gmail (dot) com
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tom (period) d (period) hand (symbol) gmail (dot) com
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GLEE
The pilot of GLEE- a new high school comedy/drama focusing on, well, The Glee Club- is up on Hulu. It's good stuff.
It's got the kind of subtle comedy that makes you smile, so you can take the cheesy-ness. And it's not your momma's after-school-special extra cheesy, it's the kind you'd see in a Broadway play: half-sarcastic. In fact, it reminded me a lot of the plays I've read and seen.
There's drama, and some obvious hooks for future drama; but the acting is superb. It's just the first episode, so we'll see how they go and where they throw their emphasis. I recommend watching it, it's a little over 43 minutes you'll be happy you spent.
If you liked any recent adaptation of a musical to the big screen, you'll enjoy this show. If you like sarcasm, you'll find plenty there. And if you "Can't stop the feelin'", well... just watch.
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It's got the kind of subtle comedy that makes you smile, so you can take the cheesy-ness. And it's not your momma's after-school-special extra cheesy, it's the kind you'd see in a Broadway play: half-sarcastic. In fact, it reminded me a lot of the plays I've read and seen.
There's drama, and some obvious hooks for future drama; but the acting is superb. It's just the first episode, so we'll see how they go and where they throw their emphasis. I recommend watching it, it's a little over 43 minutes you'll be happy you spent.
If you liked any recent adaptation of a musical to the big screen, you'll enjoy this show. If you like sarcasm, you'll find plenty there. And if you "Can't stop the feelin'", well... just watch.
Read More...
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