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VikingofRock posted:So has anyone heard anything about Harris v. Quinn? It seems like the court should obviously rule in favor of unions, but what are the chances of the conservative wing pulling out some tortured justification to destroy public sector unions? If they were challenging their classification as public employees, it'd be an interesting case and the plaintiffs would have a decent shot since their current treatment is kind of bullshitty. Instead, though, they're challenging their situation on the grounds that all union dues everywhere violate their First Amendment rights, which I'm sure the Supreme Court will have plenty of fun pulling apart. There's no way that the facts of their case merit a broad ruling like the one they're asking for, and while in practice the Court can effectively do whatever it wants, it traditionally prefers to make narrow rulings.
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Jan 21, 2014 18:59
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Sad Banana posted:From SCOTUS Blog, looks like the oral arguments didn't go great for the pro-union side. Oh god. It doesn't really seem that arguments went badly so much as that several judges think public sector unions are inherently unconstitutional and intended to use this case to legislate from the bench regardless of what happened during arguments. I feel sick just from reading that post. To summarize, the current court rulings that allow public sector unions to collect dues from people who hold public sector jobs but don't want to be part of the union have a significant caveat. The dues collected from those non-members may be used for expenses related to collective bargaining, but not for ideological or political purposes such as lobbying for the passage of pro-labor laws. The plaintiffs' lawyer, paid for by the National Right to Work Legal Foundation, is arguing that because public sector workers work for the government, everything they do - including normal collective bargaining - has public policy implications. He argues that in the public-sector, right-to-work is constitutionally required because anything else would be political coercion. quote:Messenger essentially was trying to make the point that anything a public employee union does is an attempt to shape matters of “public concern,” and it should not be able to compel support — even for part of the monthly dues — from workers who oppose the union’s public policy ambitions. So far, it's split along ideological lines, with the liberal wing of the court (plus Scalia) calling that complete bullshit, and the conservative wing (except for Scalia) claiming that the activities and goals of a public sector union necessarily require increasing the size of the government or making it spend more money, which Kennedy characterizes as a "fundamental issue of political belief" and implies that public union dues amount to political coercion by forcing people that are against government spending to support unions which want to increase government spending. I wouldn't go so far as saying that Scalia's the swing vote, though; he's not buying the plaintiff's argument but I'm sure he'll find some other justification for being a shithead. Roberts seems to want to make a narrow ruling, so maybe we can expect him to save unions? Either way, though, it looks grim - the entire court, except maybe for Roberts, looks to be dead-set on deciding the fate of all public unions with this case, even though they could easily have avoided that issue if they wanted.
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Jan 22, 2014 03:45
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Beamed posted:Okay so I don't really want to live in a world where loving Scalia saves the day, can someone explain what's up with him here? The transcript of the arguments is up, and based on a quick skim-over of what Scalia said, I think it confirms my suspicion that all the "JUSTICE SCALIA LAST HOPE FOR PUBLIC UNIONS" headlines are exaggerated. He didn't express immediate support for the plaintiff's arguments the way Alito did, but he didn't show any favor to the government's side either. He basically just spent the entire thing nitpicking minor details of everyone's arguments while carefully going out of his way to avoid showing support for either side. Sure, Scalia busted up the plaintiff's lawyer a few different ways, and seemed bothered by the larger implications of the plaintiffs' argument, but the government lawyer got slammed by a Scalia-Alito tag team accusing the union of paying off politicians in return for political kickbacks and darkly suggesting that it should have an effect on the outcome of the case. I don't think Scalia said a single nice thing to anyone there; the closest he got to showing favor to either side was when he suggested that the plaintiffs' case could possibly be brought into an arguable state if they dropped certain irrelevant aspects of their arguments.
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Jan 22, 2014 08:24
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Demiurge4 posted:The key to encourage people to pay union dues is for the union to offer benefits in exchange, I don't think anyone should be forced to pay union dues. I'm surprised that medical personnel in the US don't have powerful unions. In Denmark the nurses union is very powerful and can cripple hospitals with strikes or just the threat of strikes. One key aspect of unions in Scandinavian countries is that they offer unemployment benefits. If a nurse is fired he or she will receive 90% of her normal pay for up to three years until they find a new job. This is because it's advantageous to preserve their skill set in their sector, and it works because people with advanced skills generally want to work and will find new employment as soon as they can. The public-sector unions in question are legally mandated to collectively negotiate on behalf of all employees in the given position, whether they're union members or not. This provides a "free ride" problem where someone who doesn't pay union dues gets just as much benefit from the union as people who do pay union dues...in which case, there's no incentive on an individual level to pay dues, since anyone can opt out of paying dues and still be on the same level as those who do pay dues. Since the individual worker doesn't see any immediate downside to not paying dues, they opt out. And when working conditions deteriorate (because everyone else opted out of dues too, yet the union still has to cover all of them), everyone just nods sagely and says "see how lovely the union is? Glad I wasn't wasting my money on that poo poo". Unions in the US are much weaker than Scandinavian unions for legal, cultural, and historical reasons, to the point where it isn't even comparable. Also, on an unrelated note, trawling through these transcripts is really depressing. Alito and Kennedy are being huge assholes about this, though I guess it's hard not to come off looking like a huge jerk when your position necessarily assumes the existence of employees that are ideologically opposed to getting better pay and working conditions for themselves because BIG GOVERNMENT. quote:JUSTICE ALITO: Well, let me ask you a question about pensions. Now, that's a very big public policy issue. I think in Illinois, the legislature recently cut pensions of -- of public employees. That would be a subject -- that could be a subject of -- of collective bargaining, right? So that would be - bargaining on that would be chargeable?
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Jan 22, 2014 10:19
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Demiurge4 posted:Yeah that's an issue here as well. A few years back union membership was mandatory in certain workplaces, they removed that which caused some unions to band together and negotiate together, but negotiated benefits go to everyone, even those without a union. The rise of "yellow" unions is the biggest threat here, they offer the only thing that young people really want, which is the unemployment benefit, they label themselves as soft negotiators who want to use "dialogue" over force, which of course neuters their negotiating power. Red unionists hate them with a passion because they are indeed riding free on decades of hard battles and negotiations by the old unions. In Denmark, the unionization rate is 75% - that is, 75% of workers are union members. In the US, the unionization rate is roughly 11%, with roughly 35% of public-sector workers and 6% of private-sector workers being union members. Here in the US, unemployment benefits are handled by the government rather than by the unions, and while there isn't anything analogous to your "yellow" unions, young workers here don't get along well with unions, which they often consider to be an outdated artifact of past times and a stalwart protector of the old and lazy. Presumably this is because younger workers don't value the health benefits and pension as much, they loathe the pay scales that often require working there for a certain duration to get raises, and they think the labor abuses that unions fought against have been ended forever and therefore there's no longer any need for unions to protect them from employers. That perception is also helped by the fact that when unions lose fights, they tend to shift the damage forward as non-retroactive cuts to benefits and wages that will only affect future workers, which is sensible for the unions but tends to breed resentment among the newer workers who feel that they're being sold out to protect older workers. KernelSlanders posted:The teacher's unions in the U.S. have also done some pretty dumb things and taken positions that are likely contrary to their own interest. The all-teachers-are-equal mentality is probably chief among them. Attempting to portray themselves as acting in the interest of students during any discussion of education reform (while advocating only the status quo) also blew up in their face. The "all-teachers-are-equal mentality" is actually really loving important, because "we'll protect you from biased or unfair employment decisions and require the employer to back up their claims with facts and meet certain contractual requirements designed to protect you from persecution" loses a lot of its draw if you tack on "unless you've been accused of something bad or the school insists (without any proof) that you're ba". If unions abandoned their efforts to protect their members as soon as the employer went and complained to the media about all those bad teachers, why the gently caress would anyone pay dues to a union that's comfortable dropping its members like hot potatoes as soon as the employer applies a little pressure? More importantly, it protects minorities of every kind. Union payscales aren't perfect, but the more subjectivity you allow the employer to have in employment and wage decisions, the bigger the pay disparity between white males and everyone else becomes.
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Jan 22, 2014 22:01
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KernelSlanders posted:I never said anything about dropping members, but opposing any sort of merit based pay or promotion on principle is exactly the sort of thing that you described one paragraph above as alienating younger workers. When a young teacher sees someone who doesn't really want to be there anymore coasting the last six years to retirement (on a defined benefit pension that the younger teacher knows she's never going to get) getting paid 50% more no matter how hard she works or how good a job she does, it's pretty easy to see why she might not find the NEA particularly attractive. The problem with "merit pay" is that without hard performance data and strict controls on its interpretation, what tends to happen is the employer evaluates all white males as doing "better" work than women and racial minorities, gives lovely evaluations to people they don't like in order to hold them back from getting raises while their favorite employees climb the ladder twice as fast as anyone else even if they do lovely work, and so on. And anyone who says that we know enough to evaluate teacher performance objectively relying solely on data is lying through their loving teeth. "Merit pay" sounds like paying people better for doing better work, but in reality it's usually just shorthand for "let the employer choose different payrates for everyone using whatever system they want or no system at all, no, don't be silly, of course they'll do it fairly!". It's enormously appealing to young fresh-out-of-school libertarianish types convinced that they're the hardest worker their boss has ever seen and if it weren't for those danged union-mandated pay/promotion schedules, they'd be able to impress their bosses so much that they'd be vice-principal within a week, but realistically, those predictions rarely bear fruit - instead, they're given a token raise and then milked to the loving bone by dangling that carrot of "merit pay" in front of their face and then using it as an excuse to cut everyone's pay for "not working hard enough".
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Jan 23, 2014 00:31
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OneEightHundred posted:Using seniority IS relying solely on data as an objective performance measurement, it's just using "years worked" as the sole data point. The problem with using student outcomes as a measure of teacher performance is that teacher ability is only one of many factors that affect student achievement, and it arguably isn't necessarily the biggest factor either. It's not just a matter of test scores, the fact of the matter is that it's incredibly difficult to isolate the cause of a change in a student's academic performance. The methods I've heard of involve either subjective evaluations by administrators (obviously subjective) or looking at students' past academic history and, well, did little Johnny's grades plummet in fifth grade because Mr. Smith is a bad teacher, or did they plummet because his parents are going through a loud and painful divorce and they're too busy screaming at each other or trying to win Johnny's favor with expensive gifts to bother helping him with his homework? evilweasel posted:I'd like to see this data. For what it's worth, I could swear I remember seeing it once too - the gist was that if there isn't one clear thing that directly leads to higher performance on the metrics (such as pressing a button more times or assembling more widgets), merit pay isn't really all that effective because the connection between what they're doing and how they're getting paid is too abstract, so either they don't see a clear connection between their behavior changes and their salary or they simply don't know what behavior changes to make in order to improve their performance. I can't find the study, though - I don't have journal access and searching for anything related to merit pay is a minefield of biased articles and idological screeds. I did, however, find this article that doesn't have anything to do with teachers but sinks to the very heart of the merit pay debate - and another critical flaw that's often ignored in it: quote:Ken O'Brien was an NFL quarterback in the 1980s and 1990s. Early in his career, he threw a lot of interceptions, so one clever team lawyer wrote a clause into O'Brien's contract penalizing him for each one he threw. The incentive worked as intended: His interceptions plummeted. But that's because he stopped throwing the ball. Naturally, it's pretty easy to see where the "focusing illusion" effect the article describes would lead; schools already hyperfocus on "teaching to the test" to the point of neglecting subjects that won't be on the big standardized tests, and tying teacher pay to standardized test performance would only discourage teachers from "wasting" time teaching anything that isn't on the standardized tests. But that's not the only problem. Of course, teacher performance is not a "one-variable" problem where there's just one thing a teacher has to do better in order to improve their students' outcomes. Merit pay, though, is only useful if one assumes that there are clear variables that teachers can target for improvement. "Teach better and we'll pay you more" is only useful if there is a clear route for teachers to improve their teaching that they could have taken at any time but won't bother to until an incentive is given. If a teacher is already doing their very best, but their outcomes are still poor, then cutting their pay doesn't actually tell them what they're doing wrong or show them what they need to do to improve. It doesn't teach them why their teaching style isn't working or what would work better, and the nature of a classroom means that a teacher can't really experiment with their teaching style on the fly. In other words, merit pay is only useful for lazy teachers that could be doing better but just don't bother to - for everyone else, it's just an excuse to cut pay across the board and screw unpopular employees. And that means that merit pay is only worth instituting if you think that there's an epidemic of lovely, lazy teachers who are deliberately half-assing their teaching. For teachers that are genuinely trying, the "good management" described at the end of the article which helps employees to find the right ways to improve is far better than cutting their base pay, giving them an incentive structure, and telling them to figure out how to teach better if they want to be able to continue to afford their mortgages.
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Jan 23, 2014 20:33
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Eldragon posted:The Kaley v US decision is IMHO the worst opinion they have handed down in a long time (and there have been some bad ones). And I'm very surprised its not all over the news like Citizens United was. Actually, it seems like they're mostly concerned with legal minutae that the Slate article, being heavy on alarmism and light on citing the judges' actual legal reasoning, neglected to mention. The actual ruling appears to hang on three basic points: A) Past Supreme Court decisions have ruled asset forfeiture legal as long as there's probable cause (which is found by a grand jury), even if it renders the defendant unable to afford a lawyer B) Asset forfeiture isn't the only consequence of grand jury rulings. Allowing asset forfeiture to be challenged separately could lead to a situation where there's probable cause to hold someone in pretrial detention but not to seize their assets, and it's a little ridiculous to have a higher standard for freezing assets than on imprisonment C) Allowing the judge to overrule grand jury findings on forfeiture could lead to the case being tried by a judge who had already ruled that the grand jury's indictment of probable cause was wrong, which is a little ridiculous http://www2.bloomberglaw.com/public/mobile/document/Kaley_v_United_States_No_12464_2014_BL_49837_US_Feb_25_2014_Court/1 Choice quotes: quote:The Kaleys' alternative rule would have strange and destructive consequences. Allowing a judge to decide anew what the grand jury has already determined could result in two inconsistent findings governing different aspects of one criminal proceeding, with the same judge who found probable cause lacking presiding over a trial premised on its existence. That legal dissonance could not but undermine the criminal justice system's integrity, especially the grand jury's constitutional role. quote:And indeed, the alternative rule the Kaleys seek would have strange and destructive consequences. The Kaleys here demand a do-over, except with [*7] a different referee. They wish a judge to decide anew the exact question the grand jury has already answered — whether there is probable cause to think the Kaleys committed the crimes charged. But suppose the judge performed that task and came to the opposite conclusion. Two inconsistent findings would then govern different aspects of one criminal proceeding: Probable cause would exist to bring the Kaleys to trial (and, if otherwise appropriate, hold them in prison), but not to restrain their property. And assuming the prosecutor continued to press the charges,[fn8] the same judge who found probable cause lacking would preside over a trial premised on its presence. That legal dissonance, if sustainable at all, could not but undermine the criminal justice system's integrity quote:To begin the Mathews analysis, the Government has a substantial interest in freezing potentially forfeitable assets without an evidentiary hearing about the probable cause underlying criminal charges. At the least, such an adversarial proceeding — think of it as a pre-trial mini-trial (or maybe a pre-trial not-so-mini-trial) — could consume significant prosecutorial time and resources. The hearing presumably would rehearse the case's merits, including the Government's theory and supporting evidence. And the Government also might have to litigate a range of ancillary questions relating to the conduct of the hearing itself (for example, could the Kaleys subpoena witnesses or exclude certain evidence?). quote:This Court has repeatedly declined to require the use of adversarial procedures to make probable cause determinations. Probable cause, we have often told litigants, is not a high bar: It requires only the "kind of `fair probability' on which `reasonable and prudent [people,] not legal technicians, act.'" Florida v. Harris, 568 U. S. ___, ___ (2013) (slip op., at 5) (quotingIllinois v. Gates, 462 U. S. 213, 231, 238 (1983)); see Gerstein, 420 U. S., at 121 (contrasting probable cause to reasonable-doubt and preponderance standards). That is why a grand jury's finding of probable cause to think that a person committed [*11] a crime "can be [made] reliably without an adversary hearing," id., at 120; it is and "has always been thought sufficient to hear only the prosecutor's side," United States v. Williams, 504 U. S. 36, 51 (1992). So, for example, we have held the "confrontation and cross-examination" of witnesses unnecessary in a grand jury proceeding. Gerstein, 420 U. S., at 121-122. Similarly, we have declined to require the presentation of exculpatory evidence, see Williams, 504 U. S., at 51, and we have allowed the introduction of hearsay alone, see Costello, 350 U. S., at 362-364. On each occasion, we relied on the same reasoning, stemming from our recognition that probable cause served only a gateway function: Given the relatively undemanding "nature of the determination," the value of requiring any additional "formalities and safeguards" would "[i]n most cases . . . be too slight."Gerstein, 420 U. S., at 121-122.
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Feb 28, 2014 19:28
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Eldragon posted:The alternative ruling does not require that asset forfeiture is run as a separate trial (although it still probably should). They could have simply required that there is an exception on those assets for legal defense. If we can have attorney-client privilege for communication, we can have a similar exemption for paying for your attorney. The precise nature of the challenge made such an exception unlikely and the potential for abuse irrelevant. By the time the case reached the Supreme Court, Kaley wasn't challenging the asset forfeiture specifically, but rather the entire grand jury indictment. That goes way beyond just government abuse. To carve out an exemption for just asset forfeiture, the Supreme Court would need to be willing not only to make a broad ruling but also to overthrow Monsanto and more than twenty years of Court precedent based on it.
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Feb 28, 2014 21:43
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Stereotype posted:The problem is that money has such a clear correlation to the outcome of the case, not that the government can seize assets allegedly involved in crimes. If the goal of courts is to discover truth and uphold justice than money should be entirely uncorrelated. The supreme court is going to have a hard time fixing that. Problem is, the Supreme Court directly addressed that issue in US v Monsanto, in which the Court ruled (5-4, of course) that the money needed to pay for a lawyer is not exempted from forfeiture according to the law as written by Congress, and Caplin & Drysdale, Chartered v US, in which the same justices ruled (5-4 again!) that asset forfeiture which renders a defendant unable to pay for a lawyer does not violate one's constitutional right to choose their lawyer and also that the low burden of proof for forfeiture doesn't violate the right to due process - they even specifically addressed the question of prosecutorial misconduct (in a charmingly naive way, but that's the Supreme Court for you...). To come to any different conclusion, the Supreme Court would have to be prepared to overturn not one but two modern Supreme Court decisions which are recent enough that two currently-sitting justices heard the cases (Scalia and Kennedy, both of whom voted with the majority). Monsanto v US: quote:We conclude that there is no exemption from § 853's forfeiture or pretrial restraining order provisions for assets which a defendant wishes to use to retain an attorney. In enacting § 853, Congress decided to give force to the old adage that "[***526] crime does not pay." We find no evidence that Congress intended to modify that nostrum to read, "crime does not pay, except for attorney's fees." If, as respondent and supporting amici so vigorously assert, we are mistaken as to Congress' intent, that body can amend this statute to otherwise provide. But the statute, as presently written, cannot be read any other way. Caplin Drysdale Chartered v US: quote:This submission is untenable. [3] Whatever the full extent of the Sixth Amendment's protection of one's right to retain counsel of his choosing, that protection does not go beyond "the individual's right to [**542] spend his own money to obtain the advice and assistance of . . . counsel." Walters v. National Assn. of Radiation Survivors, 473 U. S. 305, 370 (1985) (STEVENS, J., dissenting). A defendant has no Sixth Amendment right to spend another person's money for services rendered by an attorney, even if those funds are the only way that that defendant will be able to retain the attorney of his choice. [4] A robbery suspect, for example, has no Sixth Amendment right to use funds he has stolen from a bank to retain an attorney to defend him if he is apprehended. The money, though in his possession, is not rightfully his; the Government does not violate the Sixth Amendment if it seizes the robbery proceeds and refuses to permit the defendant to use them to pay for his defense. "[N]o lawyer, in any case, . . . has the right to . . . accept stolen property, or . . . ransom money, in payment of a fee. . . . The privilege to practice law is not a license to steal." Laska v. United States, 82 F. 2d 672, 677 (CA10 1936). Petitioner appears to concede as much, see Brief for Petitioner 40, n. 25, as respondent in Monsanto clearly does, see Brief for Respondent in No. 88-454, pp. 36-37. quote:Forfeiture provisions are powerful weapons in the war on crime; like any such weapons, their impact can be devastating when used unjustly. But due process claims alleging such abuses are cognizable only in specific cases of prosecutorial misconduct (and petitioner has made no such allegation here) or when directed to a rule that is inherently unconstitutional. "The fact that the . . . Act might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it . . . invalid," United States v. Salerno, 481 U. S. 739, 745 (1987). Petitioner's claim--that the power available to prosecutors under the statute could be abused--proves too much, for many tools available to prosecutors can be misused in a way that violates the rights of innocent persons. As the Court of Appeals put it, in rejecting this claim when advanced below: "Every criminal law carries with it the potential for abuse, but a potential for abuse does not require a finding of facial invalidity." 837 F. 2d, at 648 .
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Mar 1, 2014 05:45
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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. Yeah, but considering that Kennedy and Scalia both voted with the majority in those cases, they're both going to be actively pushing those cases as a precedent to live by and arguing strongly against any attempt to overturn that precedent. KernelSlanders posted:I'm curious what the mechanism for such a challenge in the lower courts would be. Presumably it would happen after the inevitable plea since the defendant would no longer have resources to fund his own defense, thereby making any challenge to the forfeiture moot. Or if somehow he does end up acquitted the prosecutors have absolute immunity, no? I'd assume that when the case comes to trial, instead of filing a "hey, grand jury proceedings violate my Sixth Amendment rights, it needs to be adversarial" brief with whatever lawyer they ended up with after they found themselves unable to pay the half-million bucks needed for the star legal team they'd planned on, the defendant could file a "hey, these funds have nothing to do with the alleged conduct, the government's just milking us for cash to deny us our chosen lawyer" motion. at which point the trial court would have the option (but not an obligation) to review that claim and, if they agree, order the government to release the necessary amount of funds back to the defendant. The reason that didn't work for Kaley is that, as far as I can tell, Kaley never actually challenged the validity of the initial or expanded forfeitures. While the district court offered them a hearing to challenge the asset forfeiture specifically, Kaley never made any attempt to do so and instead insisted on challenging the entire grand jury indictment itself, and the court had absolutely no interest in that sort of ridiculousness. As is often the case with Supreme Court cases, the devil is in the details, and Kaley really hosed those details up.
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Mar 1, 2014 16:47
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Green Crayons posted:If you aren't making a stare decisis argument, I don't see how that is any different than a Justice believing a case was rightly decided, but that case happened to be published before their time on the Court. How is that conversation supposed to go? No, I'm just saying that Kennedy and Scalia, unless they've changed their minds, are almost certainly going to rule the way they did back in those cases and are going to argue in favor of upholding those cases a lot harder than they would if they hadn't personally participated in them. I'm not saying the other judges did it as some kind of professional courtesy, I'm suggesting that these two judges pushed those two cases particularly hard because of their participation in those cases (although given how relevant they are, they would have inevitably come up either way) and that judges are occasionally capable of swaying other judges through well-reasoned and logical arguments. Also, and more importantly, the makeup and ideology of the Court usually doesn't change all that much in a mere twenty-five years, so while older cases get more weight in precedent in theory, in practice, the Court's opinion is more likely to have turned against the reasoning of a hundred-year-old case than a ten-year-old case.
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Mar 1, 2014 18:17
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Hieronymous Alloy posted:If you look at the history of asset forfeiture decisions, the original modern asset forfeiture decisions from the Prohibition era took as their precedents a bunch of admiralty-law decisions from (I think?) the 1700's and 1800's that allowed legal proceedings against ships. The reasoning of those decisions was partly based on a sort of proto-corporate-liability doctrine for the ship, and partly based on various medieval common-law decisions based on the concept of deodand. twodot posted:Even assuming this is correct, and the trail you've drawn here is quite sketchy (some unspecified cases in the Prohibition era were based on other unspecified cases in an unspecified 200 year period, ok). What you said was: Just to head things off here, the thing Hieronymous Alloy is talking about is a real thing - but also happens to be unrelated to the thing at issue in Kaley. He's talking about civil forfeiture, which is in fact more or less as he described (including its descent from admiralty law) and is somewhat better known in D&D because it's the kind of thing that drives activists nuts and makes journalists write long articles. Problem is, Kaley is a criminal forfeiture case, which is much more straightforward and has a much simpler origin, which boils down to the fact that Congress passed a law that says that if someone's convicted of certain crimes relating mostly to the mishandling of money, courts are legally required to "order that the person forfeit to the United States any property, real or personal, which represents or is traceable to the gross proceeds obtained, directly or indirectly, as a result of such violation", and Congress also passed a law that says that if someone is going to be prosecuted for a forfeitable crime, the government can seek a pre-trial asset freeze to prevent the defendant from getting rid of or using the funds before the trial ends. So they don't really have much in common, other than the name.
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Mar 2, 2014 04:06
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AA is for Quitters posted:Part of the problem with advertisers and online viewing is discerning who is watching the legal version of the broadcast with ad content included for ratings purposes, and who is watching a pirated copy of something that is ad free, or is watching a stream from a different station all the way across the country so that they don't have to wait three hours for it to broadcast on the west coast, and thus is getting different ad content then what is in their local market...which is why its so hard to track ratings for online viewing, which is why its so hard to work out deals with advertisers for online viewers. If there was a way to track who was viewing things legally and watching the ads for the correct market, it would be a different story. But nielsen ratings have no way to track this at the moment, short of letting Nielsen install tracking software on your computer, at which point every instance of copyright infringement you do engage in also becomes tracked. Tracking how many people are watching your legal stream and where they're located when they're watching it is super trivial. Not sure what Nielsen has to do with it other than being an embodiment of the complete backwardness of the broadcast industry; any competent streaming site is already capable of doing it more reliabily than they ever will. YouTube doesn't need to install software on your computer to track how many people watch a video, how many of those people were served any particular ad, or where those people were located, after all.
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Apr 23, 2014 15:53
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Rygar201 posted:It means that when l one party has control of every veto point of law making, the filibuster will be written out of the rules. Sure, that could happen with just control of the Senate as neither the executive branch or the house needs to approve Senate rule changes but it wouldn't gain you anything then. I doubt that. The problem with ending the filibuster is that since it only takes a simple majority to end and continues to exist entirely because of tradition, the minute a majority party ends it, it's gone forever. Neither party is going to risk giving up the ability to ever filibuster ever again just for eight years of total dominance; there would need to be a major political realignment such that the party in power could potentially and realistically hold power for decades.
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Apr 26, 2014 16:25
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KernelSlanders posted:This seems to have been building for some time (e.g., Scott v. Harris). Is there any bright-line in sight or do we expect the circumstances in which shooting a fleeing subject (and any of his passengers) is acceptable to continue to expand until it essentially includes all car chases? I find it particularly troubling given that violation of state law or police policy by an officer does change the constitutional standard (Virginia v. Moore and to a lesser extent Heien v. North Carolina), so the question of when police can shoot citizens has been effectively removed from the political discourse. The ruling essetially does apply to all car chases, because high-speed car chases put innocent lives in danger basically by definition. That's why it's generally (though sadly, not universally) considered bad practice for cops to engage in them unless the person in the car is considered to pose a major threat to life if allowed to escape - it's far better to let people get away for petty traffic offenses (the original stop was for a burned-out headlight) than to engage in a prolonged, high-speed car chase that endangers everyone on or near the road and drives the suspect to even riskier behavior. The SCOTUS ruling amounts to judicial permission to execute anyone who runs from the police using a car, regardless or the initial crime or estimated threat level, because doing so can always be construed to endanger innocent lives.
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May 28, 2014 18:57
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Yashichi posted:It's pretty clear if you consider territories controlled by the United States to be "in the United States", which is a natural reading, though possibly not correct. Not really sure how you couldn't see that. Maybe you could help us out with some actual reasoning instead of smug assertions? Territories controlled by the United States are not "in" the United States, they're just territory under its control. It may not make much sense from a modern standpoint, but rewind your brain a hundred-twenty years or so to the heyday of colonialism and imperialism and you should realize exactly why territory under US dominion isn't automatically "part of the United States" with the various legal privileges that brings.
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Jun 16, 2016 14:28
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North Carolina has appealed the overturning of their voter ID law to the Supreme Court and also asked for an emergency stay on the Fourth Circuit's decision, arguing that it guts Shelby County by amounting to a court-driven "preclearance regime" and "effectively locks States into whatever practices happen to benefit the political party that minorities prefer". Think Roberts is going to appreciate this case showing up on his desk just three years after he ruled that there totally wasn't any reason to assume that historically discriminatory states were still discriminatory?
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Aug 16, 2016 16:11
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Mors Rattus posted:So, uh. Did they literally say that minorities being able to vote disproportionately benefits a mysteriously unnamed political party? The Fourth Circuit decision striking down the law said as much and openly called then out on that. To be more exact, NC stated that if disparate impact on minorities is evidence of discriminatory intent, then it's impossible to impose any voting restrictions that disproportionately hurt whichever party is more popular with minorities (because any attempt to suppress that party's voters will necessarily disproportionately impact minorities). They also point to the fact that (a couple of) the practices ended by the voter ID law were put in place by a previous (Democrat-dominated) legislature, in order to imply that the voting law changes were just "policy disagreements between two political parties". They're arguing that what's illegal is not "disenfranchising minorities" but "intentionally targeting minorities for disenfranchisement for explicitly racist reasons". It's the same old dog whistles: they're saying that if they set out to disenfranchise "Democratic demographics" and the measures they take primarily impact minorities, they shouldn't have that law smacked down for racism because then all voter ID laws would be racist. They also argue in their request that since minorities nationwide are less likely to have IDs and less likely to be able to get them, banning voter ID laws with a disparate impact on minorities would amount to a de facto ban on voter ID. Since the Supreme Court has previously upheld voter ID requirements as constitutional, NC is trying to present the Fourth Circuit's ruling as an attempt to loophole around that by imposing restrictions no voter ID law could possibly meet. Also, North Carolina claims that the voter ID laws did not have a disparate racial impact, and have (cherry-picked) statistics to support it. The District Court believed those statistics, and appeals courts have limited latitude to overturn findings of fact, so the Fourth Circuit chose to ignore the issue of discriminatory impact, and instead focus on discriminatory intent, which gave them more leeway in calling bullshit on the District Court's ruling. North Carolina points to that in their request, claiming that the facts show there was no discriminatory effect so how could they possibly have had discriminatory intent? Mors Rattus posted:Tell me that's not actually a valid legal argument. It's clearly and unambiguously illegal and unconstitutional to enact a voter ID law for the direct and explicit purpose of racial discrimination. It's not illegal to enact a voter ID law that's intended to disproportionately impact demographics that vote for a particular political party, such as "young people" or "gun owners".
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Aug 16, 2016 20:55
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Keeshhound posted:I may be misreading then; I thought the argument in question was that they were claiming it wasn't illegal for them to target members of political parties for disenfranchisement. Directly saying "hey, you're a Republican, you can't vote here" isn't allowed, but declaring that concealed carry cards aren't valid voter ID and college IDs are is legal, even if you're doing it because Republicans are far more likely to have the former and Dems are far more likely to have the latter.
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Aug 16, 2016 21:44
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Keeshhound posted:It was facetious in that you don't need to do that to get protections for your ideological identity, but you can absolutely declare whatever you want a religion. I can declare myself a worshiper of orange juice as a divine fluid, and as long as I don't harm or severely inconvenience anyone in the pursuit of my newfound faith, I will receive the exact same recognition and protections that a practicing catholic would. Namely, none, and if I could prove that I had been discriminated against for my beliefs, I could sue in the same circumstances the catholic could. Good luck convincing a judge that it's a sincere, devoted religious belief and not some bullshit you made up to circumvent some rule or annoy someone.
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Aug 18, 2016 03:28
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Deteriorata posted:The point is that 10 different people will give 10 different definitions of what "good" is. There is no inherent merit in a district being geographically compact, other than it looking pretty. Yes there is - literally the point of having geographic districts in the first place is to have different representatives for different regions with different interests. The system has been abused for other purposes, but the basic idea - that different areas of a state have different interests and need different representatives - is still valid. Potato Salad posted:As much as I feel that Orson Scott Card is a weirdo, I found a very good point in the Worthing Saga: whatever is the core of your society, keep is pure. If you want to utterly destabilize a nation, show it unequivocally that the one sacrosanct thing valued by everyone involved is corrupted. In that universe, it was a life-extending drug's fair distribution that was considered the rock of their society. In ours, it's the impartiality of the voting process: Saddam Hussein doesn't kill those who abstain at the voting booth in the US, there isn't a record of who voted when for who, there isn't a guy literally inside the voting booth paying you to vote a certain way. Yes, there are influences, but none so brazen as to be a complete killer of Joe Sixpack's ability to vote freely. How cute 
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Aug 21, 2016 15:44
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Feldegast42 posted:If the GOP holds the senate Garland (or anybody else in the judicial branch) isn't getting confirmed for another 4 to 8 years, or a generation depending on how the chips fall. The only way that the GOP lets a liberal justice through is if the supreme court and federal judicial system dwindles down small enough to effect their donors, and even then they will find some way to turn it back around on the dems. Decorum in American politics is loving dead. That would be the end of the Supreme Court - and a potentially unprecedented constitutional crisis. In eight years half the current Court could very well be dead or retired.
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Sep 7, 2016 22:01
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Potato Salad posted:He probably doesn't want his last words on the matter to be clear grounds for a dereliction of duty suit. They'll still stonewall. Now that Trump's defeat is clear, he's hijacking the "vote Trump to prevent Hillary from appointing liberal SC judges" line and using a slightly modified version of it to try to motivate GOP voters to show up to the polls anyway and support downballot Republicans by saying that even if Hillary wins, Republicans can still control SC appointments as long as they hold the Senate. He probably didn't intend to be making any promises on SC nominees, which is why he walked it back so quickly - he was just trying to repurpose and retarget existing rhetoric to drive voter enthusiasm among the hardcore conservatives, and somehow managed to gently caress it up really badly
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Oct 19, 2016 07:08
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Mors Rattus posted:Wouldn't any 'dereliction of duty' thing before the SC get punted as a political issue that isn't expressly illegal or unconstitutional anyway? Depends on how pissed off the Supreme Court gets.
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Nov 4, 2016 22:08
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AVeryLargeRadish posted:I think it's more that people are grasping for any sort of solution and since there isn't any solution they arrive at ridiculous scenarios. Then people just won't be able to appeal cases to the SC anymore and the lower level courts will rule.
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Nov 6, 2016 17:59
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Pollyanna posted:I don't know him well enough, but he seems like more of the same ala Clinton. He doesn't seem like he will drum up the base enough. Dean tried to build the party from the ground up, building local and state Democratic organizations and candidates in order to build a strong foundation and bench for the party and challenge Republican domination of state governments. The Dems completely abandoned that in favor of a more targeted national-level strategy based on particular vulnerable seats, and they've paid badly for that. Is Dean a progressive superstar? Of course not. But he pushed to grow the party's grassroots at a time when everyone else - including Obama - seemed more interested in letting them wither away, and pushing him out was one of the biggest mistakes the Dem establishment made.
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Nov 11, 2016 18:31
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Raenir Salazar posted:Was it passed with some legal loop hole in mind where "Yeah this will actually never bear fruit, sorry, you're out of luck! Bye!" was the actual legal thought process of the Congress criters in question or does this actually legitimately allow a law suit to come forward, will go to court unless the Saudi's settle, and compels the President/government to do something about it since it passed Congress? There's no loophole. No one's been forthcoming about their reasoning, but the best guess is that they just didn't really think about the consequences. Originally it was pushed by the far right, and moderate Republicans likely signed on without a second thought based on the simple populism value. Resistance from the Dems and the White House only stiffened their resolve and made the pot look all the sweeter for moderates eager to display some conservative cred before the election, and when Obama vetoed, obviously they couldn't back down from that challenge. I don't recall hearing about any loopholes in the law, other than the fact that the Saudis are exceedingly unlikely to willingly cooperate. Trump won't care, though; ill-conceived populism without concern for the consequences is basically his thing, and he's already demonstrated willingness to endanger fundamental foreign relationships, so he'll enthusiastically support it.
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Dec 2, 2016 06:34
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The Iron Rose posted:Far from it! It may not provide precedent, but it nonetheless informs customary international law and serves as legal retrenchment against this growing trend against state immunity. Obviously it will never negatively affect a permanent member of the Security Council, but such a case would absolutely be usable to inform a future case; presumably one where the ICJ has compulsory jurisdiction or a UNSC resolution mandates compliance. If international law is not enforced, it loses credibility and legitimacy. If the US can openly flaunt ICJ rulings, why should any other country willingly submit to the ICJ unless forced to by pressure from that very same US and the very same US allies that refuse to push the US on its own failure to comply? This, incidentally, is why the ICJ is incredibly unlikely to take a case against the US ever again - if court decisions go ignored, that hurts the court more than it hurts the target country. Let's be real here - international law that can't credibly be enforced is irrelevant. Just look at the League of Nations, prohibitions on the use of chemical weapons, and so many other bits of international law that were completely undone by the inability to present credible consequences for violations.
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Dec 2, 2016 17:42
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botany posted:So the Dakota Access Pipe Line was pushed back to allow for some more investigation into alternative routes. Trump will take office in a couple of weeks, and he is personally invested in one of the companies wanting to build the pipeline. Somebody explain to me how this works: is a POTUS required to divest themselves of their investments? Is it okay for them to own stock in a company? Is this customary or are there laws to this effect? Legally speaking, most of the various ethics laws about this don't apply to the President. Practically speaking, it doesn't matter anyway - the President is the boss of the people whose job it is to enforce those rules. Typically, it's the job of Congress and of voters to keep a president's misbehavior in check, but the voters have already demonstrated they don't care about conflicts of interest, and anything Congress could do about it would require a majority vote. In other words, welcome to the post-ethics world!
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Dec 5, 2016 18:18
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The time to do something about the Garland appointment was nine months ago. Pulling some kind of between-sessions bullshit like that now would widely be seen as illegitimate, and most importantly, I somewhat doubt that Garland himself would accept such a nomination.
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Dec 7, 2016 03:35
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Raenir Salazar posted:There is maybe some truth to the idea that Obama was far too naive in dealing with the GOP, but how could anyone have known that a solid amount of Americans don't care? He didn't exactly push Garland too hard during the campaign, and Garland himself wasnt exactly a motivating pick for voters.
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Jan 5, 2017 00:53
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vyelkin posted:They absolutely do. More to the point, they feared Hillary Clinton would appoint a hyper-liberal justice in Scalia's seat and finally begin the dark communist ritual to destroy global freedom and prosperity forever. Dems didn't have the same hopes, apparently.
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Jan 5, 2017 16:42
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twodot posted:I'm seeing a want in this sentence and not a can't. Once Congress decided to pass bills specifically blocking him from doing anything decent with the Guantanamo detainees, Obama's hands were tied. Of course, the catch is that Obama had Democratic majorities in both houses of Congress for the first two years of his term, and had a Senate majority for the first four years, so Congress didn't become an impossible barrier until his second term. He failed to push for it early, repeatedly backed down from the slightest bit of opposition, and made essentially no effort to whip Congressional Dems. The administration demonstrated its ability to overcome Congress when it wanted to - but most of the time, it didn't. Over and over again, they retreated from plans and schemes for fear of political backlash. By the time Congress first passed a law banning Guantanamo detainees from US soil altogether - in Dec 2010, when the new Congress hadn't started yet and therefore Dems still had majorities in both houses - the Obama administration had already squandered two whole years of near-complete control of the government. He can't close Gitmo now, but he had his chance to do so, and he let it pass by because he was scared it would be unpopular. It's too late now.
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Jan 5, 2017 22:18
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UberJew posted:The internment of Japanese-Americans and the imprisonment of pacifist figures for unacceptable speech in WWI are probably better examples The internment of Japanese-Americans wasn't even a "could they get away with it" case - the Supreme Court gave it their blessing in Korematsu. And it was faithfully carried out by both civilian and military authorities, despite the blatant racism and obvious constitutional difficulties involved.
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Jan 9, 2017 21:17
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Discendo Vox posted:Do you have a reason to think it was "tacitly allowed"? That more or less fits with the official Army line, which (based on the court martials and punishments) seems to be that the low-ranking soldiers came up with all the torture entirely on their own without orders from anybody, and the senior officers at Abu Ghraib simply authorized some questionable things and failed to properly supervise and train their subordinates.
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Jan 10, 2017 16:38
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DeusExMachinima posted:I'm not disagreeing with you about torture under Bush but 're: the military at Abu Ghraib it's not what you know it's what you can prove. As far as the CIA goes they're civilian. Dead Reckoning is on solid legal ground and he's being careful to qualify his claims. Does it count as solid legal ground if the prosecutors gave the most senior officer immunity in exchange for testifying against the second most senior officer, who had all charges related to detainee mistreatment dismissed because the investigators made incredibly basic procedural mistakes when investigating only those charges and not any of the others? Cover-ups and scapegoating are some of the US military's finest traditions.
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Jan 10, 2017 23:17
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Dead Reckoning posted:Your opinions about sexual assault in the military are misinformed. It's actually rather vexing to do an apples-to-apples comparison, but the data seems to suggest that military members commit sexual assault at the same or lower rates than their civilian counterparts, especially once you control for things like the demographics of the military vs the general population. (For example, a lot of the headlines trumpeting "XX% of women in the military report having been the victim of a sexual assault" accidentally use a number that includes women who were assaulted prior to joining the service, or who were assaulted by non-service members.) The reason the story has such resonance in the public eye is that the only acceptable number of military sexual assaults is zero, and because the military has become incredibly good at suppressing a lot of other crimes, but has not yet been successful with sexual assault. So wait, are you actually going to link any numbers, or are you just going to say "actually, all the studies and statistics you've seen are wrong" and leave us to hunt down whatever source you're using for that claim?
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Jan 12, 2017 20:54
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hangedman1984 posted:I herd that the reason Scalia Died wuz cuz RBG stole his phylactory and is using it to make herself immortal She wouldn't do that to a friend
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Jan 28, 2017 00:16
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Kloaked00 posted:Agreed. It seems like Trump's pick is essentially going to be Scalia v2.0 and the better move would be to not make it an easy confirmation by any means, but don't set it up for the nuclear option right now. I would think that given there's a decent chance of one of the liberal justices needing replacement in the next 4 years is fairly high, saving the filibuster for that situation, so that invoking the nuclear option is even that more of a Thing. The reason they're doing it now is that they can point to the fact that this seat was opened during Obama's term as a source of legitimacy. Notice that they're not saying "we'll filibuster anyone who's not moderate", they're saying "we'll filibuster anyone who's not Garland". That's not something they can just save for later.
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Jan 30, 2017 20:40
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