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TheOneAndOnlyT posted:You make it sound as though birth control opponents have any interest in the science behind birth control. Scientific proof that birth control doesn't work the way they say it does has never stopped them, because they don't care about science. The only reason they ever even bring it up is to apply a thin veneer of moral legitimacy to their opposition of women having sex when and how they want. Hasn't been set for argument yet. Probably will be set for April 2014.
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Dec 2, 2013 20:48
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Shifty Pony posted:Sure there is, they could just kill it on lack of standing if they find that an incorporated entity does not constitute a "person" possessing a religious belief which may be burdened as required to claim judicial relief under 42 USC § 2000bb–1 [the RFRA]. Which would be hard to square with the logic of the ruling in Citizens United. So, I mean, it could happen - but it's very unlikely.
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Dec 4, 2013 17:51
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jeffersonlives posted:How? I see basically no connection between the cases outside of broad stroke media/interest group wailing, certainly no legal rationale. Citizens United is not substantively cited in any of the briefs in any of these cases, there's even only one errata citation to it in Clement's brief. Read CU carefully. CU's core logic deals with the concept that groups of persons (e.g., corporations) don't lose rights of those persons simply because they're a group. I'm not saying they'll cite to it - I'm saying expecting this court to distinguish between religious objections based on whether a person or a corporation exerts those objections is a dangerous expectation. Citizens United posted:Yet certain disfavored associations of citizens—those that have taken on the corporate form—are penalized for engaging in the same political speech.
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Dec 4, 2013 18:18
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jeffersonlives posted:Right, but corporate personhood is not Citizens United, that's a bunch of cases decided long before Citizens United. What Citizens United says is that the corporate personhood concept extends at least X far in the context of electioneering constitutional free speech; that's a very specific thing. Here we're asking whether it extends at least Y far in the context of RFRA absent any real evidence that Congress intended it to or not to. This is mainly a statutory interpretation problem, not a constitutional one, and it's really kind of a weirdly cool statutory theory case than any of the stuff people are ascribing to it. Right. What CU says isn't at all on point, but WHY it said it does matter.
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Dec 4, 2013 19:49
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jeffersonlives posted:I don't know that we should be pulling out thin strands from the increasingly tortured body of election law and imagining how that might apply to RFRA, which itself is a tortured area of law but in a hugely different way. The idea that corporations have some personal rights is not really at issue here. But that wasn't the key to why CU went the way it did. The key was that quote I put in up thread - the Justices were suspicious of a rationale that gave rights to the individuals making up the corporation but took them away from the corporation. You're looking for precedent, which isn't why I'm pointing at CU. I'm saying that it has predictive value because the justices think this way already with regard to first amendment rights of corporations and will likely continue to think this way when it comes to religious rights of corporations under RFRA.
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Dec 4, 2013 20:20
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jeffersonlives posted:The key question for me here is congressional intent/statutory interpretation; I don't think there's a Supreme Court case if RFRA specifically excludes or includes corporations. I don't see this case in a "First Amendment rights" past RFRA way at all, at least not the Hobby Lobby corporate rights side of it (and the Conestoga Wood half of the consolidation that reached more of the constitutional issues that get at Citizens United has huge standing problems because it asserts the constitutional rights of the owners to get there). You're still seeming stuck on the constitutional question. It's not relevant to my point. I'm talking about RFRA rights. I'm saying that, absent an explicit statement in RFRA that it doesn't apply to corporations, this court will say that if an individual has a right under RFRA then a corporation will also have that right as an assembly of individuals. This, as I've said, is the same logic they used in CU - the fact that the underlying right is different between the two isn't relevant to their logic. I don't like the predicted decision, but I think it's a correct prediction of the court's eventual logic. If they hedge at all, it'll be by limiting it to closely held corporations.
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Dec 4, 2013 22:08
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jeffersonlives posted:Except of course it's relevant because nobody suggests corporations have all legal rights of a person. The Court doesn't even suggest they have all constitutional rights, nor does it suggest that the default state is that the corporation has the right. Absent anything explicit in the statute saying they don't, where do you expect the court to derive an argument that they shouldn't inherit the rights of the associated individuals forming the corporation from?
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Dec 4, 2013 22:15
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Really, they should just apply 112-6 algorithm disclosure requirements to all software patents that claim implementation of a function via a general purpose computer. That'd do most of the necessary work.
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Dec 7, 2013 00:55
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Not to mention, patents actually aren't supposed to protect ideas, they're supposed to protect implementations. That's why when someone claims something functionally (by saying what a component does, rather than what it is) we limit them to the structures disclosed in the specification. The problem is that examiners are far too willing to grant patents with functional claims without forcing those claims into the proper form (means plus function). That form has additional strictures and safeguards that are particularly useful for software patents.
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Dec 7, 2013 16:49
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Evil Fluffy posted:Old bolt locks are literally a bar of metal you slide to lock/unlock the door. Sliding to unlock a screen instead of a door is a new use of the function, but the function itself is by no means new. Hindsight is the worst kind of obviousness analysis. Think of it this way - until the iPhone, did any electronic device use a slide to unlock function? It's not like touch screens were new, or lock screens, after all.
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Dec 8, 2013 22:22
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Paul MaudDib posted:Yes, absolutely. Try the NeoNode N1m, debuted at CeBit in March 2002. The Neonode device seems like prior art to "slide to unlock" as a concept but it's not at all prior art to the actual claims of the first slide to unlock patent which specify quite a bit more than slide to unlock. I haven't read the patent in detail, nor have I researched the Neonode beyond looking at that one sequence at 4 minutes into the video, so I am not going to make a guess at obviousness in the legal sense. I agree with you that the PTO is bad at their jobs for the most part (I mean, I deal with them regularly, I am well aware of how NOT good at their jobs they are) but the rest of your post is pretty ignorant regarding how patent law works. Starting from the difference between a utility and design patent (basically everything from the fact that design patents are granted unless anticipated while utility patents also mustn't be obvious to the varying infringement tests to the basic concept of what they protect) to the minor detail that it's 20 years, not 28. The Apple patent doesn't cover a tablet with rounded corners - it covers a specific shape of tablet with a specific amount of rounding on those corners and certain design features. Does Apple getting a patent on UI bounce advance the arts and sciences? Of course not. In all likelihood, it slightly retards that advance. On the other hand, protecting a return on easily copied research and development does advance the arts and sciences in general, even if each individual one doesn't on its own. And why don't we want to protect the implementation of the novel idea, exactly? We won't allow patenting the idea directly (in theory - the PTO being lazy allows functional claims through far too often) because we don't want to remove the idea from public access entirely. Instead, in theory, we protect implementations of that idea that the original inventor comes up with, and then others can freely provide alternative implementations which they themselves can patent and protect. That system incentivizes both the original idea as well as people looking into alternative routes to doing the same thing. Finally, reducing the duration of software patents would have little to no effect on what's going on unless you reduced the duration to a trivial duration, which would then give you problems when trying to distinguish a software patent from other patents. Most modern inventions (outside of the world of pharma) are mixtures of software and hardware anyway, so are those software patents, or not? If you try to draw lines, people like me will play games with which side of the line the patent sits on depending on which is advantageous, and if you don't draw lines, you're killing the rest of the patent system (some of which clearly works well like pharma and to a lesser extent semiconductors, some of which has mixed results) in order to deal with a problem that there are better solutions to. Like putting teeth into functional claiming restrictions again, which is what I suggested earlier in the thread.
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Dec 8, 2013 23:53
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OneEightHundred posted:Didn't everyone just get done arguing that sort of connection was NOT important when it was about Vaughn Walker? It's not disqualifying, but it is useful. You do get that they're distinct concepts, right?
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Dec 9, 2013 03:15
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OneEightHundred posted:It seems pretty similar when it's about turning minority membership (or in turn, lack of it) into a measure of competence. This particular "compatibility" angle of doing it is pretty dangerous because, if it's validated, it can just as easily allow minority lawyers to be excluded or devalued if the class is mainly white. The issue with Walker wasn't competence, though - it was whether he would be unduly biased. In contrast, the issue for a party's lawyer would be whether they can adequately understand the problems faced by their client. White people don't have unique problems in the way that minorities do, so the rationale you're proposing only works if you're John Roberts.
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Dec 9, 2013 04:01
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OneEightHundred posted:When did I even hint at something like this? There is no such thing as a white male problem. (There are legitimately male problems if you were doing some kind of "this drug gave me prostate cancer" mass tort case, but in general not, and there's no such thing as a white problem.) You are literally parroting the rhetoric Roberts used in Parents Involved and by doing so keep overlooking the entire point we are making.
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Dec 9, 2013 05:23
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OneEightHundred posted:If this was about an AA program to get more minorities and women into law, I'd agree, but it isn't. It's about a rule that is about effectiveness of counsel, with effectiveness being measured by racial compatibility with the represented class. Except that that implies there are unique aspects to being white and male in American society. (There aren't.)
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Dec 9, 2013 06:55
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RuanGacho posted:Yeah since Alaska is in there I think the 9th might actually cover about half the land mass of the united states. Which while it isnt any more important than "look at all dat red area vote republican!!" it might indicate that particular circuit is overbroad and might need some help. It does have more than twice as many judgeships as the Tenth, so it's not like the judges are especially overworked there in comparison to other circuits (the cases-per-judge are pretty comparable between the 9th and 10th last time I looked.). For comparison, the second biggest circuit by number of judges, the Fifth, has 17 judges. That said, the 9th should probably be split up - when you have 29 judges, meeting en banc becomes both much harder and much less useful.
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Dec 21, 2013 21:20
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StarMagician posted:Is there a structural reason that the 9th circuit is more liberal than the others? They're all nominated by the President, so it should be fairly random which circuits happen to have more conservative or more liberal justices at any given time. My first thought was that it might have something to do with Senatorial privilege. Senatorial privilege is really an issue more for district courts than for circuits, since it's less/not really respected in the same way there. The perception of the 9th as particularly liberal isn't really correct - it has some liberals, but it also has some extremely conservative judges (Kosinski, o'Scannlain, etc.) - I think it's more that with more judges you'll get more outliers in philosophy so you do wind up with some notable people a bit further left or right.
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Dec 25, 2013 19:44
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coffeetable posted:Another ruling on the NSA's activities came down today in New York, and takes a complete opposite stance to the one given in Washington last week. Is this as sure to be accepted by SCOTUS as the media's making it out to be? If it is, when will the ruling probably be? It's far more in line with SCOTUS precedent than the other ruling was (which more or less said "I don't like the single closest ruling so I am going to ignore it") so it pretty much comes down to does SCOTUS want to change a major 4th Amendment doctrine or not. Ruling is a ways off - we will need both to be appealed through the circuits and be upheld to create a circuit split in order to really create a guarantee SCOTUS would take it, though it isn't impossible they'd take it if the DDC ruling (unconstitutional) was upheld.
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Dec 28, 2013 14:33
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hobbesmaster posted:This looks like its for "real" religious groups; like the ones that can already op out of stuff like social security, yes? Yeah, this won't apply to Hobby Lobby - it's stayed for the groups that fall under the catholic exception in the PPACA rules.
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Jan 1, 2014 04:55
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The Entire Universe posted:Does it broaden the definition of religious group/organization? I didn't read the stay order itself, but generally speaking, a court couldn't change that definition with a stay. (A court really couldn't change the definition even after a court case - what they could do is find that HHS's definition isn't acceptable and require them to come up with a new one. This has to do with the difference between administrative rules and legislation.) Update: per the text of the stay, it only temporarily bars enforcement against the Colorado nuns who brought the suit, not even other religious groups. (They could probably get their own stays, of course.) Kalman fucked around with this message at 11:36 on Jan 1, 2014 |
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Jan 1, 2014 11:29
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Probably a 9-0, honestly, if it ever even gets taken by the Court - the idea that you can search electronic devices at the border isn't going to be terribly controversial, since electronic device searches aren't controversial during arrest and border searches get extraordinary leeway, and the case isn't going to be about the 100 mile range (that one already got litigated and lost.)
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Jan 1, 2014 21:29
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More like "we presume laws were intended to be constitutional so we construe them so as to make them constitutional unless there's just no way."
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Jan 2, 2014 09:44
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WhiskeyJuvenile posted:They can only border search at borders and international airports http://scholar.google.com/scholar_case?case=6933260753627774699 Not quite right. They can do various searches in various different places, some of which are nowhere near the border - an electronic device imaging search probably wouldn't be okay at the Sarita checkpoint but almost certainly would be okay at the border itself. Where in between does it stop being okay? Fourth Amendment law is often pretty fact specific so the answer will basically be "it depends."
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Jan 2, 2014 09:58
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Konstantin posted:One issue that they might tackle is that the "search" might take an excessive amount of time. A US citizen friend of mine who runs a small business had his laptop seized during a border search while coming back from Canada, and they held it for several weeks. At least he had all of his data backed up online, so he was "only" out the expense of purchasing a temporary replacement, but the length of time that searches of electronic devices take can certainly raise constitutional questions. That'll just push them towards what border security is already inclined to do - take it, image it, and return it. It'd be an improvement, I guess? I wouldn't anticipate SCOTUS picking the case up just to decide length of time, they'll probably leave that to the circuits to decide using existing ideas of how long property can be seized if needed for search.
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Jan 7, 2014 10:44
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KernelSlanders posted:I had two observations/questions after skimming the opinion. First, what is the standard of review for fact-finding by administrative bodies? I would think it would be the same as with any other appellate court reviewing trial court findings and grant the agency's findings deference absence abuse of discretion. How then can the DC Circuit determine that there is not competition for broadband services or that service 4Mb/s doesn't count as adequate to compete with cable? The DC circuit didn't determine either of those things. They determined that the FCCs regulations effectively place Title II requirements onto carriers the FCC has declined to regulate under title II, and that those restrictions are therefore invalid. The Commission has a few options. They can reclassify ISPs as title II carriers. They can rewrite the regulations to avoid the per se common carrier issue. Or they can do another round of rule making and provide more justifications for the overturned rules (which, for the anti blocking rule, the circuit has helpfully provided in their opinion as "hypotheticals").
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Jan 14, 2014 22:00
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Right. Those were things the FCC determined and the Court found reasonable.
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Jan 14, 2014 22:20
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KernelSlanders posted:I see. Then, let me return to the question, why doesn't the FCC just re-classify broadband providers? Is there some broader policy implication at stake? Internal resistance and the fact that there's a lot of (actually problematic) regulation that covers title II carriers that broadband providers are immune to right now. As examples, a title II broadband provider would have to file their exchange rates to all points with the FCC and couldn't change those without the FCCs permission. They'd also need to file for permission to construct new capacity outside of local capacity. They'd fall under 222 regulation of customer information - I think the current 701 regulation is more permissive, but I'd have to take a look to be sure and to think about whether one would be preempted, so that might be fine. There's likely other things that I'm not thinking of, but those are some big ones. They'd also be subject to CALEA in ways they aren't right now (which would make the FBI happy) and the FCC could legitimately require them to maintain traffic records (which would make the NSA happy.). Those are a different sort of issue.
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Jan 14, 2014 22:54
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Thwomp posted:I think it's because the providers would scream bloody murder, have been screaming bloody murder at the prospect both in public and through their lobbyists, and are constantly concern trolling that it'll destroy innovation in the wireless industry. In fairness, there is some evidence that it wouldn't be a good thing. Common carrier regulation of DSL while cable was immune was one of the factors that retarded DSL development and growth in the US. Now, net neutrality wouldn't destroy innovation. But common carrier regulation is a much closer case - there's some significant drawbacks there that don't exist in net neutrality. It's possible that we may want to adopt it anyway, for other reasons (e.g. Universal service requirements) but it's probably not worth it just to get net neutrality rules in place, particularly when the DC Circuit opinion more or less says "rewrite your order and you can do this without needing to go through Title II."
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Jan 14, 2014 22:59
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The Entire Universe posted:There once was a time when people rented bell-owned telephones and men were free... Ironically, the Bell monopoly was regulated under Title II/common carrier, since most of that was part of the 1934 Act, with some additions in the 1996 Act. Title II is very much not a panacea and does have some serious negative consequences.
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Jan 15, 2014 00:22
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The Entire Universe posted:Ironically, nobody claimed it was a panacaea, but the parts about universal service, interconnection, reasonable rates and fees, and addressing market entry barriers brought us the ability to use dial-up internet without being hosed around with too much by the phone company. You know that most of those were only added in 1996, right? I seem to recall using dial up internet just fine before then. I mean, your post makes it seem like you think those provisions existed beforehand. (Universal service was an add on, not part of the 1934 Act. Same with interconnect and entry barriers regulations. Reasonable rates and fees existed, though. Of course, I believe telephone line costs have gone down over time, not up, so it's unclear just how effective that provision was.) Net neutrality is a good thing (within reason - I genuinely don't have an issue with provisions like paying for customer data, which is analogous to a collect or 800 call, or with paying for collocation to improve performance, both of which are situations that some versions of net neutrality think aren't acceptable), but there's better ways to achieve it than the Title II framework which have the benefit of requiring neither statutory changes nor the FCC to reclassify something into a regime that was designed for POTS. Particularly after the ILEC/CLEC debacle, interconnection doesn't actually strike me as something the FCC is capable of effectively enforcing (or even as a particularly good idea unless we go back to a monopoly structure and a separation between last mile carriers and long distance carriers, with all the problems that entails.) Kalman fucked around with this message at 04:25 on Jan 15, 2014 |
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Jan 15, 2014 04:19
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New legislation isn't required and the burden on the FCC for an NPRM implementing anti blocking rules is far less than the burden of an NPRM for reclassification. It's also far more politically feasible both inside the FCC and in the general DC political space. The one thing that almost guaranteed WOULD trigger new legislation is an FCC reclassification attempt.
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Jan 15, 2014 07:28
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They can't for the reasons they provided. The circuit explicitly set out what they could say to get at least anti blocking authority. Edit: the key here is that the ruling wasn't you don't have the authority to do it. It was you haven't sufficiently justified it under the authority you want to use. Kalman fucked around with this message at 08:19 on Jan 15, 2014 |
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Jan 15, 2014 08:07
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Freakazoid_ posted:Why would DC give a poo poo, exactly? Well, Republicans will care because net neutrality and government regulatory overreach, while Democrats will care because there's a lot of political power in the ISPs (and don't assume Google it Apple or Netflix will necessarily weigh in heavily - they have reasons not to want Title II regulatory requirements to be imposed as well). The legacy telcos would be resistant as well, since they're trying to get out of Title II as they modernize, so they don't want expansion, which also means you being in CWA as against expansion, so labor will be weighing in against. There just isn't a lot of political capital for reclassification if it isn't necessary. Further, when an agency tries to do something and receives a legislative slap down, it tends to affect their willingness to act for decades to come. The FTC in the 70s is a good example - they were extremely aggressive in their antitrust work, so much so that they got severe pushback from Congress and the courts. As a result, they became a very timid regulator for nearly 30 years. So we probably don't want the FCC to go forward with reclassification unless it's necessary to achieve what we want. Which it isn't. Here's how we know they don't need to reclassify. DC Circuit posted:the Commission, we further hold, has reasonably interpreted section 706 to empower it to promulgate rules governing broadband providers treatment of Internet traffic So, the DC Circuit is agreeing that under existing authority - without reclassification - the FCC has statutory authority to issue rules regarding broadband providers handling of traffic. DC Circuit posted:Because the Commission has failed to establish that the anti-discrimination and anti-blocking rules do not impose per se common carrier obligations, we vacate those portions of the Open Internet Order. However, what they didn't do is show how the rules are different from simply making them a common carrier. Since we aren't deciding that the rules are exactly the same thing, simply that the FCC hasn't shown they're different, we will vacate the order, leaving the FCC free to try again. DC Circuit posted:In Cellco, we recently confronted the similar question of whether a Commission regulation compelling mobile telephone companies to offer data roaming agreements to one (Cellco was a 2012 case dealing with a challenge to the Commission's data roaming requirement on mobile carriers.) In other words, the Circuit is showing the FCC a way to write an anti-discrimination rule that won't be a per se common carrier requirement - require service without _commercially_ reasonable discrimination. They're telling them "here's how you do this, without reclassification." DC Circuit posted:Significantly for our purposes, the Commission never argues that the Open Internet Order’s “no unreasonable discrimination” standard somehow differs from the nondiscrimination standard applied to common carriers generally—the argument that salvaged the data roaming requirements in Cellco. And here they're reiterating that all the FCC has to do is make the argument that it's different from common carriage (using the Cellco rationales) and they'd be fine. So that handles the anti-discrimination rule (shall not unreasonably discriminate - i.e., everyone gets equal treatment). Next, the Court turned to the anti-blocking rule. ("edge providers’ 'content, applications [and] services' must be 'effectively []usable.'", i.e., you can't block someone else's content entirely or render it such poor service as to be useless.) DC Circuit posted:At oral argument, however, Commission counsel asserted that '[i]t’s not common carriage to simply have a basic level of required service if you can negotiate different levels with different people.' ... Viewed this way, the relevant “carriage” broadband providers furnish might be access to end users more generally, not the minimum required service. In delivering this service, so defined, the anti-blocking rules would permit broadband providers to distinguish somewhat among edge providers, just as Commission counsel contended at oral argument. ... Whatever the merits of this view, the Commission advanced nothing like it either in the underlying Order or in its briefs before this court. This pretty much comes down to: "This argument might convince us, but you didn't make it until you were in front of us - go back and do it right." So, from the DC Circuit opinion which ostensibly struck down network neutrality, what we actually have is a roadmap for the FCC to reimplement these rules without the political headache of reclassification.
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Jan 15, 2014 17:56
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Shimrra Jamaane posted:So for a dummy like me, Net Neutrality wasn't actually "struck down" then? The current net neutrality rules were struck down with an open invitation to at least two routes to reinstate them or something close to them. The most important part of the ruling is the part that says that the FCC does have authority to implement net neutrality. The least important part was the one that everyone is upset about, saying that the rules as written conflict with another part of the statute.
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Jan 17, 2014 08:05
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OneEightHundred posted:I'm not sure what the rationale for ruling in favor of California would even be. Exigent circumstances still require probable cause, so this looks like a Florida v. J.L. rerun. It's not an exigent circumstances case. It's far more analogous to a Terry stop, which only requires reasonable suspicion.
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Jan 23, 2014 18:48
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joeburz posted:Do any other major state or federal courts have video feeds? The only ones I can recall seeing are the television entertainment courts and various local court clips on the news. Several, including some experiments in federal trial courts with live Webcasts. http://www.dmlp.org/blog/2011/cameras-roll-new-federal-court-experiment has some good info on both state and federal programs. Honestly, given that both transcripts and audio recordings are easily accessible, I don't see the appeal of video. I've been to arguments in person and, while it's interesting to go, I actually wound up closing my eyes so I could listen better. Video wouldn't really enhance understanding beyond what's already available. That said, it isn't something I think is really much of an issue either way and if people really want it, there's no great reason against it.
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Feb 28, 2014 19:03
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The Warszawa posted:I think the actual usefulness of video isn't for the audience, but for the attorneys - it's basically game film, especially since in the moment you might be trying to respond to one Justice and the video will allow you to see how other Justices react both to the question and your answer. That's a good point, although I think you get much of the same utility out of SCI moots, and those insights you can carry forward into the case, while after-the-fact insights from video would not generally help you improve as most would be case specific.
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Feb 28, 2014 19:42
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The Warszawa posted:Fair enough, but I think there are a sufficient number of frequent fliers who end up handling cases with overlapping substantive issues. Yeah, that's definitely true as well. I wasn't saying I disagreed that there was value! Just unclear to me how much value there would be - it is definitely the one circumstance I've heard anyone propose where there's even any realistic value beyond simple interest.
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Feb 28, 2014 20:21
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Green Crayons posted:The argument for respecting stare decisis holds more weight the older the precedent gets, not the newer it is. Yes, but that wasn't a stare decisis argument, it was a "do you really think Kennedy and Scalia have changed their minds about this?" argument.
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Mar 1, 2014 08:14
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The Warszawa posted:Though it's arguably more pertinent to the Marriage Equality thread, I figure SCOTUS is going to end up dealing with this eventually. E.D.Mich. has struck down Michigan's gay marriage ban. Stay has been asked for from the Sixth Circuit. Decision is a pretty awesome read, and also designed to make it difficult for an appellate court to overturn. He basically said that the states witnesses had no credibility, which is a core function for trial judges and harder to overturn on appeal. Struck down under rational basis, also, meaning that I think the First remains the only circuit in which sexual orientation officially receives heightened scrutiny (as opposed to Kennedy's "really it's heightened but we can pretend it's still rational basis."
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Mar 22, 2014 04:20
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