SCOTUS 2023: Rice pilaf from Louisiana...is that like an ISIS video?

The Something Awful Forums > Discussion > Debate & Discussion > SCOTUS 2023: Rice pilaf from Louisiana...is that like an ISIS video?

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Discendo Vox: Mar 21, 2013; We don't need to have that dialogue because it's obvious, trivial, and has already been had a thousand times.

I've studied and written a bit about the general issue of science in the courtroom in my work and career. Even before you get to the (massive) problems of judicial and legal scientific illiteracy and dueling experts, scientific information in the courtroom is inherently fraught.

The short version is that the interaction between legal and scientific "truth" systems in regards to evidence is irreconcilably conflicted. Scientific philosophy (at least most dominant expressions of it) require tentativeness and falsificationism. It also is structured so as to be caustic to the idea of authoritative figures dictating epistemic truths. This places the system at odds with the requirements of the legal system, which requires that uncertain claims function as and be treated as true in the interest of the justice system, and that some actor (usually a legal one) makes that ultimate determination.

Nowadays, thankfully, judges are getting better at couching their refutation or acceptance of scientific assertions in tentative or strictly legalistic ways- better to leave an opening for revision if something went wrong in the gatekeeping evaluation, or the research changes, or policy uncertainty forces a shift in framing the associated knowledge. It doesn't resolve the underlying tensions, though.

# ¿ Mar 25, 2014 03:27

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# ¿ Apr 30, 2024 05:55

Discendo Vox: Mar 21, 2013; We don't need to have that dialogue because it's obvious, trivial, and has already been had a thousand times.

falcon2424 posted:

I agree that the concepts are different. And I agree that judges are getting better at recognizing the difference and this is good.

But it seems like a lot of the underlying tension comes from linguistic conflation. We use the symbol 'truth' for two very different things. And it's convenient for people with certain positions to equivocate between the two as often as possible.

(e.g. The creationist who rails against the problem of induction while assuming, because of induction, that the TCPIP stack is relaying his messages accurately)

If we fixed the problem of type-errors (people trying to fit an empirical-truth answer into a logic-truth shaped hole) I'm not sure that there'd be much tension left.

What do you see as being intrinsically unreconcilable?

I'd need you to unpack empirical-truth and logical-truth a bit more to be sure of my position, but I believe that the justice system relies on a broad and imperfect claim of the union of those two sets. There are also difficulties because many scientists also hold a naive view of the strength of their work, giving it a similarly categorically strong claim to truth.

# ¿ Mar 25, 2014 15:52

Discendo Vox: Mar 21, 2013; We don't need to have that dialogue because it's obvious, trivial, and has already been had a thousand times.

KernelSlanders posted:

I think Karl Popper has done a great diservice to science by promoting his falsification theory of the philosophy of science. While falsification and falsifiability are both very important to the progress of science and stating testable hypotheses, claiming that falsification is the central goal of scientific truth finding really misrepresents how science is conducted on a day to day basis. As an example, the discovery of the 854th exoplanet was an important finding worthy of publication, but not because it falsified the hypothesis that there are exactly 853 exoplanets in the Universe.

Popperian falsificationism is a prescriptive ideal for scientific claim structures, not a pure descriptive. Its contributions were essential for the development of science as a distinct discourse and field of inquiry, as prior to his contribuitons science "as conducted on a day to day basis" was frequently horrible, for example Freud. Your example confuses the published outcomes of the scientific discourse and novelty, (importance) and epistemological strength- the location of evidence for a new exoplanet is published for different reasons than its reliance on a falsification system, but pursuit of a deductive framing to the evidence and assertion of the new planet is necessary to its relative epistemological strength. Descriptive and narrative theories of scientific conduct leave themselves open to abuse, which is exactly what happened as Kuhn's publications have gained traction. To put it differently, the pursuit of structural falsificationism is now latent within the scientific discourse as a necessary element of scientific truth construction, but it is not sufficient to produce publication. The mismatch between epistemic structures and the outcomes of the scientific discourse through publication is basically the thing I'll be spending my career attempting to correct.

KernelSlanders posted:

The bigger problem courts get into is the different ways the legal and scientific professions value precedent. In science, a previous finding is only as good as the most recent one, and once new studies are advanced the previous theories can be cast by the way side. In law, however, precedent is king. When you have a scientific analysis such as the AFLP product rule for calculating probabilities of a DNA match that has been thoroughly discredited and even abandoned by the FBI, a DA can simply cite a case that said the technique passes the Frye standard, and it's in.

I don't think this is accurate. Frye requires that the theory in question still be accepted within the field to apply- a responsible adjudicator or opposing counsel would not let the DA apply the outmoded method. It's important to note that the Frye standard has been superseded in many jurisdictions by Daubert, which contains both falsificationist and, as a matter of necessity, social descriptive elements. The adjudicator is not able to evaluate the full logical structure of the assertions of the scientific discourse and apply them within the facts of the case (scientists often can't do that, after all!), so field consensus acts as a poor substitute. In both circumstances, however, the fundamental problem is that the court must act as the gatekeeper of scientific truth, so the court is reliant on an imperfect understanding of the already imperfect scientific field. The product of the adjudication, as previously stated, acquires a latent legal truthfulness that science does not claim. This creates problems even without the precedence example you provide.

# ¿ Mar 25, 2014 17:40

Discendo Vox: Mar 21, 2013; We don't need to have that dialogue because it's obvious, trivial, and has already been had a thousand times.

Emphases mine.

KernelSlanders posted:

Before the mid 20th century science as conducted on a day to day basis was horrible? One can argue to what extent Freud was a scientist, but it's not hard to come up with a list of successful scientists who followed scientific method who predate Karl Popper. Galileo, Einstein, Boltzmann, Salk (possibly contemporary), Pasteur come to mind. Whatever the intent of argument over how to do epistemology, it does impact published outcomes. My PI would be quite relieved to learn that I didn't actually have a reviewer complain that my fairly descriptive paper didn't explicitly state what hypothesis it falsified.

OK, I think I'm seeing the problem here. Falsificationism doesn't require that research falsify prior claims, it requires that the research, through its articulation of the hypothetical assertion, is vulnerable to falsification through empirical testing. Popper articulated a standard for falsification whereby there are no strong truth claims for science, in which subsequent research could, at least theoretically, always falsify prior research-all knowledge claims were tentative in that respect. The researchers you cite from before the advent of falsificationism operated in a discourse where their research, as well as the research of other empiricists, was routinely wrong and constructed in such a way that it could not be falsified- Freudian psychoanalysis being one such example.

Popperian falsificationism calls for the statement of empirical claims to be based on on a framework of empirical assertions that is completely explicit, such that all elements can be separately evaluated and subject to testing. This is meant to be an idealized target that is pursued by the mechanisms of the caustic environment of scientific criticism, but it's frequently brought up as a strawman of what falsificationism is. In practice, as Popper himself acknowledges, uncertainty and probability are latent elements of empirical research. The goal of the discipline, then, is to render these uncertainties or limitations as clearly as possible. I hope it's clear how closely this approach matches the normal practices of publication requirements for limitations, conflicts of interest, statistical testing, and, increasingly, full datasets.

Falsificationism is trivial in the scientific discourse because due to Popper's work it has become embedded in the evaluation of empirical claims. There's going to be a latent hypothesis and falsification in your article, and if the field surrounding that claim is settled, then there's less of an issue. You wouldn't be able to publish your exoplanet paper if your assertion that the exoplanet exists was presented using a rationale which could fit any and all evidence. Before the development of explicit hypothetico-deductive reasoning in the sciences, this used to be routine.

KernelSlanders posted:

Yet in practice the AFLP product rule is still allowed in many states, including big ones like Florida and New York.

The states you mention are currently or only recently moved away from Frye. According to wikipedia, Florida made the transition last June. Daubert makes challenging bad research standards easier. That said, even under Frye, a good judge/attorney would be able to get bad science thrown out because the rule would no longer justify its inclusion. The issues involved in such science sticking around past its "expiration date" (I know nothing of the AFLP product rule, so I assume it qualifies as such) are issues of adjudicator and attorney literacy, as well as the imbalance of resources and costs that is incipient in the entire US justice system.

# ¿ Mar 26, 2014 00:35

Discendo Vox: Mar 21, 2013; We don't need to have that dialogue because it's obvious, trivial, and has already been had a thousand times.

Zombie Samurai posted:

Is there any way to write new legislation to regulate campaign financing without running afoul of the court's current view on the issue? Or is buying elections now a feature, not a bug?

Citizens United specifically included, and to some degree defended itself, by leaving the door wide open for really stringent transparency and disclosure requirements. Whether those occur is an open question, but it appears unlikely.

# ¿ Apr 2, 2014 23:54

Discendo Vox: Mar 21, 2013; We don't need to have that dialogue because it's obvious, trivial, and has already been had a thousand times.

One explanation is that you have to be really careful about informal rejection of old cases under the common law system- if it becomes a norm of accepted practice, it could easily be abused.

# ¿ Apr 14, 2014 17:54

Discendo Vox: Mar 21, 2013; We don't need to have that dialogue because it's obvious, trivial, and has already been had a thousand times.

Could you be more specific about what you're thinking of when you refer to economic liberties? The two rights concepts that immediately come to mind are freedom of contract and freedom of association, both of which are :can:

in some political contexts.

# ¿ Apr 17, 2014 00:24

Discendo Vox: Mar 21, 2013; We don't need to have that dialogue because it's obvious, trivial, and has already been had a thousand times.

Oh- well, yeah, in that sense, afaik there aren't any prominent theoretical frameworks in which economic liberties are categorically distinct from civil liberties- they're both rights constructs assigned to people, and the content differences don't rise to the level of structural separation of concept.

That's a big way of saying that liberalism tends to treat rights as unambiguously generic- one of the classical, fundamental problems with strong liberal philosophies.

# ¿ Apr 18, 2014 05:52

Discendo Vox: Mar 21, 2013; We don't need to have that dialogue because it's obvious, trivial, and has already been had a thousand times.

Kiwi Ghost Chips posted:

Are judges really supposed to recuse themselves if they only have a financial connection to amici? That seems really overbroad.

No, it's totally in keeping with norms and conventions on judicial ethics. Think about how easy it would be to abuse an exception for connections to amici. Remember, a common standard is to avoid even the appearance of conflict.

# ¿ Apr 18, 2014 17:46

Discendo Vox: Mar 21, 2013; We don't need to have that dialogue because it's obvious, trivial, and has already been had a thousand times.

A general rule of thumb for any case in which Pom is involved is to root for the other guy. Pom are trying to do some really nasty things to the market via litigation, and they have a real track record of this sort of thing.

# ¿ Apr 21, 2014 22:01

Discendo Vox: Mar 21, 2013; We don't need to have that dialogue because it's obvious, trivial, and has already been had a thousand times.

Subjunctive posted:

Where's a good place to start learning about POM's history of villainy?

I'm afraid I don't have one- my knowledge of the line of cases came from doing some research when a co-worker was an expert witness in one of their earlier cases, suing Ocean Spray to similarly try to block the use of the word "Pomegranate" on labeling a blended juice product. The two general lines of cases the company is known for are

a) POM trying to get away with ridiculous medical claims about the benefits of pomegranate juice, seeds, rinds, dust, etc. To quote Wikipedia's entry on their legal shenanigans,

quote:

Examples of unapproved labeling cited in the [FDA] warning letter come from a section of POM's website titled "Featured Scientific Studies" which contained health claims regarding "Prostate Cancer", "Erectile Dysfunction", "Reducing LDL cholesterol", "promote(ing) a healthy heart and prostate", "reduce(ing) the length and severity of colds", "...shown to slow prostate tumor growth", "particularly beneficial ("among quite a few others")

I shouldn't need to say that POM funded these studies, and that they're worthless.

and b) them trying to sue anyone else who uses pomegranate in their blended product out of existence. I recall this was largely coming from one of their executives, Stewie something I think, who really believes this is a viable approach to conquering the market.

As others have mentioned above, POM suits have routinely positioned themselves as diametrically opposing the letter and function of various labeling laws. If the court rules for them, then unless some really impressive and unlikely judgement jujitsu occurs,

hobbesmaster posted:

a ruling that says "CHAOS REIGNS"

would be pretty accurate.

Discendo Vox fucked around with this message at 00:05 on Apr 22, 2014

# ¿ Apr 22, 2014 00:00

Discendo Vox: Mar 21, 2013; We don't need to have that dialogue because it's obvious, trivial, and has already been had a thousand times.

Allaniis posted:

It turns out that Kennedy thought Coca Cola's Pomegranate Juice was actually mostly pomegranate juice. Turns out he's a rube and not an average consumer! It's on page 40 of the transcript.

He's telling a joke.

# ¿ Apr 22, 2014 17:07

Discendo Vox: Mar 21, 2013; We don't need to have that dialogue because it's obvious, trivial, and has already been had a thousand times.

Don't forget to update the OP. Does he keep the old one? Does the Chief Justice automatically get two prestige drama alter egos?

# ¿ Apr 22, 2014 17:20

Discendo Vox: Mar 21, 2013; We don't need to have that dialogue because it's obvious, trivial, and has already been had a thousand times.

Evil Fluffy posted:

Hell I'd settle for Thomas getting investigated and potentially charged with ethics violations from his inability to recuse himself from cases involving parties he and/or his lobbying wife have varying relationships with. It's not quite as bad as enemy companies buying judges in West Virgina but he's got time to reach that point.

This could lead to Really Bad Things if it happened, like the total destabilization of the US government.

# ¿ Apr 25, 2014 23:40

Discendo Vox: Mar 21, 2013; We don't need to have that dialogue because it's obvious, trivial, and has already been had a thousand times.

Rygar201 posted:

Then you aren't remembering correctly, full stop. Between their expansion of money as speech, restricting the definition of corruption, and clamping down on Class Actions they absolutely have been expanding the power of corporations

Beyond what Kiwi Ghost Chips says about the specific cases, there's a meaningful distinction between giving corporations rights and giving them more power.

# ¿ Apr 26, 2014 16:24

Discendo Vox: Mar 21, 2013; We don't need to have that dialogue because it's obvious, trivial, and has already been had a thousand times.

Yeah, continuing to fix up the Fed Circuit should be a high priority for the White House right now. It's really incredible how much damage regulated industry has been able to do there over the past few years.

# ¿ Apr 26, 2014 22:02

Discendo Vox: Mar 21, 2013; We don't need to have that dialogue because it's obvious, trivial, and has already been had a thousand times.

StarMagician posted:

Can someone put together an effortpost explaining how these sorts of cases make it to the Supreme Court? I'm assuming that there's a legal organization somewhere that wanted more power for the District Courts, and it's one that has no opinion on and no interest in the merits of various health food companies. I would also be surprised if Octane Fitness were looking to spend years and hundreds of thousands of dollars trying to go all the way to the Supreme Court with whatever dispute it was.

So my question is, how did these groups get married up? Whose job is it to find these nobody companies in esoteric disputes and shepherd them to the highest court in the land, and why do they agree to it?

There are a number and it depends by field, but in food and drug law my bet is that the most infamous is the Washington Legal Foundation. I don't know who funds them, but they bring test cases from a number of conservative, free market directions that are especially well-designed in terms of attacking the purview of the government. As a food and drug- focused guy, I'd say their biggest success was Washington Legal Foundation v. Henney, which basically prevented the FDA from regulating or limiting off-label prescription.

Speaking from an FDA- reg perspective, the WLF are unusually sophisticated legal actors, even by the standards of such groups. The frequency and ordering of cases and arguments made on their behalf attacking regulation of commercial practices make it look an awful lot like they have planned test cases targeting ambiguities in regulatory law on deck for every outcome they can anticipate for a given one of their suits- the sort of thing that takes a metric ton of research and planning, and long-term dependable funding, to arrange.

# ¿ Apr 30, 2014 05:13

Discendo Vox: Mar 21, 2013; We don't need to have that dialogue because it's obvious, trivial, and has already been had a thousand times.

Rygar201 posted:

I thought Scalia mostly wrote his own opinions?

Wouldn't stop the clerk from being the one with a bad day, though.

# ¿ Apr 30, 2014 15:11

Discendo Vox: Mar 21, 2013; We don't need to have that dialogue because it's obvious, trivial, and has already been had a thousand times.

This thread needs some sort of "read the scotusblog synopsis at a minimum before deciding who is right" rule. Also, I'm starting to think I can persuasively argue any case from any side to some of this thread if I can analogize my client to a guy busted with weed.

# ¿ May 1, 2014 05:33

Discendo Vox: Mar 21, 2013; We don't need to have that dialogue because it's obvious, trivial, and has already been had a thousand times.

KernelSlanders posted:

I think the real issue is people not making clear whether they're opining on the legal issue of the case or who they think is "right" in some equitable system that may or may not resemble U.S. law.

The difficulty, and the reason I think such a rule would be productive, is that these folks are neglecting the facts of the case. Reading scotusblog would at least tell them what the situation was- if they want to get counterfactual on the law, that's fine. As it stands, they're arguing from a set of circumstances that have nothing to do with the actual event in question, so they're effectively strawmanning the whole situation.

vvvvv Sure, and if the posters were using counterfactuals intentionally it'd be fine, but it's pretty clear they aren't. They think they know what happened in the case, but they're actually assuming facts to fit how they want things to turn out. The "fish were too small, this case doesn't make sense, the big bad govt is misapplying statutes" narrative is intuitively appealing if you don't know the facts- and that's exactly why the case has made it this far.

Discendo Vox fucked around with this message at 05:57 on May 2, 2014

# ¿ May 1, 2014 23:09

Discendo Vox: Mar 21, 2013; We don't need to have that dialogue because it's obvious, trivial, and has already been had a thousand times.

The Warszawa posted:

This is wholly consistent with the Roberts Court's theory of safeguards for minority rights, the well-known "tough titty" doctrine.

We need to get our heads together and make Tough Titties, inc v. ACLU a reality. bThen we can call the resulting common law application the "tough titty test".

Green Crayons posted:

Citizen of Faith A is going to feel disenfranchised because a speaker before a town meeting talks about Faith B?

I'm fine with that as an initial takeaway, except for the paying a chaplain bit.

The SC ruled this way despite knowing that in practice, prayers aren't going to be remotely evenly distributed, open to everyone, or free of disparaging language. It's impossible to create a standard of behavior for legislative prayer that won't function as an endorsement of majoritarian religious beliefs- which is why a ban on the practice makes so much more sense than this confusing, multipart result, which will be a nightmare to clarify and enforce.

Discendo Vox fucked around with this message at 21:19 on May 5, 2014

# ¿ May 5, 2014 21:16

Discendo Vox: Mar 21, 2013; We don't need to have that dialogue because it's obvious, trivial, and has already been had a thousand times.

No Mods No Masters posted:

Source: some article I read

Whatta footnote. I'm glad that they included it, but sheesh. The study can be found here. I dont' have time to read it at the moment, but the language in the summary is already really darn suspect.

# ¿ May 6, 2014 04:54

Discendo Vox: Mar 21, 2013; We don't need to have that dialogue because it's obvious, trivial, and has already been had a thousand times.

SCOTUSBlog is already linked in the OP.

# ¿ May 6, 2014 22:00

Discendo Vox: Mar 21, 2013; We don't need to have that dialogue because it's obvious, trivial, and has already been had a thousand times.

Jastiger posted:

"Rather than obliterating the wall separating church and state all at once, the Roberts Court�s opinions are dismantling it brick by brick. The clear message from Town of Greece v. Galloway is that prayers before legislative sessions are allowed, no matter how much they are sectarian and from a particular religion. In fact, the practice in the Town of Greece was exactly what Justice Kennedy said could still violate the Establishment Clause: a �pattern of prayers over time� that �proselytize[d]� and �betray[ed] an impermissible government purpose.�"

Erwin Chemerinsky, Dean and Professor at UC Irvine School of Law

I know I've been all mad in this thread, but, as a layman Sociology major selling insurance, its good to feel vindicated by a ton of leading legal scholars across the country.

You picked a good one to quote, too- Chemerinsky's name is on maybe three of my law books, including the Constitutional Law one. He's arguably the biggest name on that list of big names.

Discendo Vox fucked around with this message at 00:39 on May 7, 2014

# ¿ May 7, 2014 00:36

Discendo Vox: Mar 21, 2013; We don't need to have that dialogue because it's obvious, trivial, and has already been had a thousand times.

Jastiger posted:

I'm reading through all of the posts after the ruling and I'm really intrigued at this. Even those that do not question the Marsh ruling are still scratching their heads as to why Kennedy and Alito give such twisted rulings and why history is being used as such a strong arbiter in this case, when compared to things like say, the Voting Rights Act. The doublespeak is really heavy here, and the more I read, the more frustrated I become.

"Its always been this way, so prayer is OK. Why? Because its always been this way as described by Marsh v Chambers. Except when it isn't."

Yet when the VRA was handled, they essentially said a lot of the history is meaningless because we need to devise new ways to weigh legislation.

Why are the 2nd amendment and religios issues so important to maintain tradition and historical literalism, but literally everything else is up to how the Justices' feel that day?

Edit: Another good point: if the prayers are wrong if they are proselytizing, why do the prayers need to be said at all? Is a prayer not proselytizing in and of itself if it is compulsory, public, and orated? Why not do it in public to satisfy Kennedy, Scalia, and Alito's test?

To push back a bit, remember that you're seeing the writing of legal academics on SCOTUSBlog- the coverage from opinion writers in particular is going to lean politically Democratic.

# ¿ May 7, 2014 01:20

Discendo Vox: Mar 21, 2013; We don't need to have that dialogue because it's obvious, trivial, and has already been had a thousand times.

The procedure for impeaching a justice is virtually new ground, since it's been used only twice in the history of the nation. Both of those cases were weird and fringey, and the most recent one was in like 1910. IF there were modern impeachment proceedings, those involved on both sides would have to interpret the standards as they went along. Justcicial impeachment is also seen as another potential nuclear option, in that once you start doing it, the other guys will start doing it too.

Discendo Vox fucked around with this message at 14:50 on May 7, 2014

# ¿ May 7, 2014 14:46

Discendo Vox: Mar 21, 2013; We don't need to have that dialogue because it's obvious, trivial, and has already been had a thousand times.

Jastiger posted:

I'm late to the game here, and admittedly, I'm only really kind of looking at it because I don't like a lot of the more recent rulings, but....

Is the Supreme Court a good idea? It seems that not only today, but throughout history there have been examples of justices using the bench to shape the United States not in a spirit of the Constitution, but in their own personal biases and agendas. For example, even going back to Dredd Scott, it is clear that the Court was less interested in doing what was in the spirit of the Constitution, and more in line with what they felt should or should not be. Should we have additional checks on SCOTUS? Should justices be for life?

I'm sure these questions have been asked and answered before, but the corruption really seems to be a lot more visible as technology and general understanding of law increases.

Short version:
The Supreme Court is less responsive to democratic majorities, but that's a feature, not a bug. From a civic republican standpoint, the Supreme Court is the best bad solution to the problem of state concentration of power. Without a weirdly appointed, longstanding, semi-quasi-independent branch at the federal level, it's very difficult to keep a republic from turning into a one-party nightmare state. The tenure of supreme court justices makes it difficult for a particular group/faction/partty to effectively take over the government if they have majorities in the legislature and a president in office. All of those things can occur in a single election. (This is also why the court-packing scandal was a huge deal- if Roosevelt had been able to pull it off, he would have signaled an ability to manipulate the structure of the federal government to seize total control by legal means, effectively undoing the constitution.)

# ¿ May 7, 2014 15:59

Discendo Vox: Mar 21, 2013; We don't need to have that dialogue because it's obvious, trivial, and has already been had a thousand times.

Cocoa Ninja posted:

A third amendment case! It's like constitutional Christmas.

I'd like to suggest this for thread title.

# ¿ May 7, 2014 21:48

Discendo Vox: Mar 21, 2013; We don't need to have that dialogue because it's obvious, trivial, and has already been had a thousand times.

evilweasel posted:

If you suddenly abolish substantive due process and declare the P&I clause has teeth again, you suddenly need to re-litigate every settled issue to see to what extent the P&I clause differs from the substantive due process incorporation doctrine. You get a storm of lawsuits until the contours are settled.

Remind me, could this hypothetically be headed off with a legislative patch that reapplies the content of substantive due process into P&I?

# ¿ May 7, 2014 22:01

Discendo Vox: Mar 21, 2013; We don't need to have that dialogue because it's obvious, trivial, and has already been had a thousand times.

It'd probably be good to check the amici and attorneys involved- it might be a political test case for some weird antistate thing.

# ¿ May 8, 2014 16:58

Discendo Vox: Mar 21, 2013; We don't need to have that dialogue because it's obvious, trivial, and has already been had a thousand times.

I don't think the 3rd Amendment has ever been interpreted to apply to police, it goes against all normal interpretation schools of thought (and especially all the ones conservatives like to invoke).

# ¿ May 8, 2014 22:06

Discendo Vox: Mar 21, 2013; We don't need to have that dialogue because it's obvious, trivial, and has already been had a thousand times.

ShadowHawk posted:

Surely garrisoned British regulars enforcing order Gendarme-style would count as police even though they're also soldiers. There's a very real argument that militarized police forces would count as soldiers in the same fashion.

"militarized" is doing all the work in that sentence- how are you defining it? Do you have a source for someone making that argument in a 3A context? The people in question would basically have to be the army in terms of role and function for the analogy to make sense.

vvvvv I know, but the framing made me strongly suspect I'd get a cite to Radley Balko. That said, what jurisprudence there's been on the subject hasn't looked anything like this structuring of the issue.

Discendo Vox fucked around with this message at 14:07 on May 9, 2014

# ¿ May 9, 2014 14:02

Discendo Vox: Mar 21, 2013; We don't need to have that dialogue because it's obvious, trivial, and has already been had a thousand times.

Hieronymous Alloy posted:

Well, I think the 3rd is also important in that it's a large basis for the general right of privacy -- most of the important citations to the 3rd amendment are in support of the whole "penumbra of rights" theory that establishes the right to privacy. It's not just about the taking of the property; it's about having a dude living in your house listening to what you say and watching who you talk to. Change "water quality expert" to "NYPD Muslim Surveillance Task Force Member" and the point leaps out at you. That's not something the government should be able to get a warrant to do, period; there's no good reason for it.

A personal pet theory of mine is that at some point someone's going to make an argument against government surveillance based on the 3rd. It's right there. It's just that in the colonial era, in order to impose mass surveillance you had to actually stick a soldier in everyone's home, instead of just sticking in a microphone and a camera (or an xbox and a wiretap).

SedanChair posted:

When we talk about protections from search and seizure, who was it carrying out the searches back then? The army.

Where are you guys getting this. The 3rd wasn't created in response to any kind of surveillance, and although I can't pull it up right now I'm pretty sure it's not cited in Griswold, either. Searches and seizures is the fourth amendment. The third is a weird historical dud that hasn't been relevant in US history. The situation it addresses doesn't apply here without a really tortured reading, and other constitutional doctrines work much better.

# ¿ May 9, 2014 17:50

Discendo Vox: Mar 21, 2013; We don't need to have that dialogue because it's obvious, trivial, and has already been had a thousand times.

Looks like I was wrong- and it's cited in Griswold, too. That said, I still feel like there are more applicable constitutional doctrines.

vvvvv Dude, I don't have Lexis or West in this location. I had to go dig up my con law textbook. That said, if you wanted to pull a surveillance argument out of the penumbra, the 3rd still feels like a stretch.

Discendo Vox fucked around with this message at 19:19 on May 9, 2014

# ¿ May 9, 2014 18:24

Discendo Vox: Mar 21, 2013; We don't need to have that dialogue because it's obvious, trivial, and has already been had a thousand times.

Chuu posted:

If it was this trivial to get around copyright law, this case wouldn't exist.

It depends on the form of copyright. In some cases, this is in fact all it would take.

Discendo Vox fucked around with this message at 05:46 on May 13, 2014

# ¿ May 13, 2014 05:41

Discendo Vox: Mar 21, 2013; We don't need to have that dialogue because it's obvious, trivial, and has already been had a thousand times.

Kiwi Ghost Chips posted:

I'm interested in messing with a lot of things, and the whole stat pack is interesting but not complete. I'm currently writing a script to try to parse opinion PDFs and docket pages

If it seems viable after some testing, do keep us updated. A systematization like what you describe could become A Big Deal from an analysis standpoint.

# ¿ May 19, 2014 22:24

Discendo Vox: Mar 21, 2013; We don't need to have that dialogue because it's obvious, trivial, and has already been had a thousand times.

You're missing a link to the opinion, Mr. Nice!

Your sins will never be forgiven, you monster.

Discendo Vox fucked around with this message at 03:42 on May 21, 2014

# ¿ May 21, 2014 01:39

Discendo Vox: Mar 21, 2013; We don't need to have that dialogue because it's obvious, trivial, and has already been had a thousand times.

Eugh. This reads like an ACLU advocacy piece instead of a judicial opinion.

Discendo Vox fucked around with this message at 03:58 on May 21, 2014

# ¿ May 21, 2014 03:43

Discendo Vox: Mar 21, 2013; We don't need to have that dialogue because it's obvious, trivial, and has already been had a thousand times.

SpiderHyphenMan posted:

*looks at custom title*
*sighs contentedly*

To clarify, I'm not disagreeing with the outcome or rationale of the decision, it's the use of loaded, deontological and political language in stating the decision that I object to.

# ¿ May 21, 2014 03:58

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# ¿ Apr 30, 2024 05:55

Discendo Vox: Mar 21, 2013; We don't need to have that dialogue because it's obvious, trivial, and has already been had a thousand times.

ulmont posted:

What could possibly be wrong with the use of deontological language to describe an outcome compelled by previous cases?

Well, to give the immediate example, the opening line of the opinion is "Today, certain citizens of the Commonwealth of Pennsylvania are not guaranteed the right to marry the person they love." That's framing the issue in terms of an absolute right, to say nothing of a legal standard for marriage not normally required. The opinion has a set of section titles mimicing the traditional vows, for heaven's sake. The whole opinion is filled with loaded language. It's like Jones thinks he'll be called on perform public dramatic readings of it on an annual basis. It's a poorly written decision, because this rhetorical embellishment makes it less effective to parse from a legal perspective, and easier to poke holes in and attack within the legal discourse. If the outcome were compelled by prior caselaw, then it would be much more effective if the author stated that plainly, rather than talking about the "ashbin of history".

Discendo Vox fucked around with this message at 05:20 on May 21, 2014

# ¿ May 21, 2014 05:17

The Something Awful Forums > Discussion > Debate & Discussion > SCOTUS 2023: Rice pilaf from Louisiana...is that like an ISIS video?

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