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The Entire Universe posted:I think the question could definitively be answered in the affirmative. A corporation certainly has been granted rights and personhood well beyond its initial form as a legal fiction embodying the business as an entity, but it does not possess its own agency and acts at the orders or direction of the board. It is effectively a bomb disposal robot or ROV in business form. The board controls it, but it is a separate entity allowing individual actions not entangling any one member outside specific circumstances. It can take action absent the presence of the controlling board, but without the board's direction it does not act. Just picking this up from the last thread since it was in response to my comment about "one person one vote." I agree with The Entire Universe that giving a corporation the right to vote would violate 1P-1V. The only reason I hedged is that it's not my area and I'm not 100 percent sure what types of elections 1P-1V has been held to apply to. Obviously anything federal and I think anything that implicates the republican form of government in the states, but I'm not sure it applies to, for example, a county election for sheriff or a school board election.
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Dec 2, 2013 21:06
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twodot posted:(Earlier, I brought up the substantial burden test, in hindsight I think that's the wrong test) The second one? Well, not the second one, it would actually be that the ACA does not substantially burden Hobby Lobby (or its owners). Hobby Lobby claims that its religious rights are substantially burdened because it requires them to provide coverage for procedures that pose a risk of aborting viable fetus. However, Hobby Lobby covers, without objection, many procedures that pose a higher risk of aborting a viable fetus. Therefore, Hobby Lobby's claim that its religious rights are substantially burdened by being forced to cover certain methods of contraception is not credible, because it has always provided coverage for procedures that pose a much greater risk of aborting a viable fetus. Hobby Lobby cannot remedy this simply by changing its plans and bringing suit again, because the objection is not that Hobby Lobby failed to assert an exemption from certain procedures, but that it covered those procedures long before it was required to. If it covered those procedures by choice it doesn't have much of a claim that covering those procedures violates its deeply held religious beliefs. Also, yes, if Hobby Lobby is claiming that covering a medical treatment that causes X is a serious violation of its religious beliefs, then Hobby Lobby should have an affirmative duty to determine what medical treatments actually cause X. Anything less literally puts the owner's immortal soul at risk. Finally, just to be clear, I do not know whether Hobby Lobby actually covers procedures that pose a substantial risk of aborting a viable fetus, I am raising it for the sake of argument. Unlike Hobby Lobby, I have no religious objection to abortion and do not provide insurance to anyone, so I'm not really under any obligation to sort out the risks of various procedures.
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Dec 4, 2013 18:27
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twodot posted:Are you trying to make a legal or moral argument? Your argument is wrong on both counts, but this makes me think you are attempting a moral approach despite many legal references. It's meant to be a legal argument, but I'd be interested to know why you think it's a moral argument? To summarize my argument. A law (as applied to me) violates RFRA if it substantially burdens my free exercise of religion (and doesn't fit within an exception). I claim that doing X is prohibited by my religious beliefs. Therefore, I claim that if the government compels me to do X, the government has substantially burdened my free exercise of religion. The above argument is sound, but only if two things are true. First, X must actually be prohibited by my religious beliefs. I'm willing to grant the validity of my belief here for the sake of argument. Second, I must not routinely voluntarily do X . If I routinely do X voluntarily, then regardless of whether I believe X is wrong, my free exercise of religion already includes doing X. If my free exercise already includes doing X, then my free exercise is not burdened by telling me to do X. I routinely do X without compulsion. Therefore, compelling me to do X cannot substantially burden my exercise of religion, because my free exercise of religion already includes routinely doing X. If I was going to highlight a potential weakness in this argument, I can imagine some situation in which my choosing to do X has religious significance that is burdened when I am compelled to do X. But that only seems to arise in cases where the religious significance lies in the choice between X and not X, not the religious significance of X an not X in and of themselves. I don't think Hobby Lobby has argued that its free exercise is burdened because it has been robbed of the ability to overcome the temptation to cover abortions. Also, I'll concede that this would probably be an argument to be hashed out at the trial court level, since whether I actually practice my claimed religious beliefs is a factual question.
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Dec 4, 2013 22:12
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Obdicut posted:My argument is that they were incurious about it, though. It's worth remembering that Hobby Lobby self insures, they do not offer a commercially insured plan. So it's not just a matter of Hobby Lobby not knowing what the insurer covers, Hobby Lobby is itself the insurer, and if it is going to use religious criteria to determine what treatments to cover it should have a duty to conduct a reasonable investigation into what treatments violate the religious criteria. Basically, I think a party should have a duty to conduct reasonable investigation into whether it is engaged in acts that it considers contrary to its religion before it can claim that being compelled to do those acts constitutes a substantial burden. I would argue that X is not a substantial burden on your free exercise if you don't take reasonable steps to determine whether you are routinely doing X. To be clear though, a duty to conduct a reasonable investigation is different than a duty to be all knowing about a field that requires substantial expertise. You should reasonably know that a pill called "The Abortion Pill: Causes Abortions 100% of the Time" actually causes abortions. It's unreasonable to require you to know the likelihood of causing an abortion for every medical treatment ever. Also, I don't think this is the best argument, or even necessarily a good argument. I only stepped in to defend it because people were suggesting it has no validity at all. I disagree.
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Dec 6, 2013 21:02
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Zeno-25 posted:That may be, but if a belief is demonstrably wrong and not reflective of reality, it shouldn't be given preference or accommodation under the law. To do otherwise is to legitimize fantasy and madness. But then courts end up in the position of judging the reality of religious beliefs, and that's a big no-no. There are portions of the country where you could probably convince a jury (and some judges) that the Islamic God objectively does not exist (how can he, the Christian God is the correct God). If the truth of religious beliefs matters, then convincing the fact-finder of the non-existence of God eliminates any protection for religious beliefs. I'm not saying that this is analogous to Hobby Lobby, just pointing out that we don't want courts judging the accuracy of religious beliefs.
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Mar 26, 2014 23:49
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Zeno-25 posted:I'm a lot less worried about that than the prospect of corporations being allowed to vastly expand their ability to manipulate the workplace environment and lives of employees, and having this justifed by said corporation legally holding a religion chosen by their owners. Besides, there have always been "certain portions" of the country which are so full of ignorant, awful people that they've held the country back since day one. It's a reoccurring theme in American history. That's one thing the federal government exists for, at least with the outcome of the Civil War. I pretty clearly said I wasn't talking about Hobby Lobby, but fine. I would draw two lines. First, I would consider the sincerity of the belief. Manufactured beliefs adopted solely to get out of some government obligation do not qualify for religious exemptions. This isn't at issue in Hobby Lobby, because the sincerity of the belief was conceded by the government. Second, I would consider the belief itself, and whether the regulation burdens the belief. For example, if I have a sincere belief that my religion compels me to not provide methods of contraception that the church (or some religious authority, or I) believe cause abortion, then the science is irrelevant. The prohibition is not dependent on science, it is dependent on belief. I don't see this an any different than someone who believes that payote opens a connection to the spirit world - it is a medically inaccurate description of payote's method of action, but that is not relevant to the religious belief. On the other hand, if the belief is that I may not cover contraception that actually causes abortion (rather than that the church teaches causes abortion), then science matters, and my belief is not burdened if I am required to cover contraceptives that do not cause abortions, regardless of what I believe about them. Now, before anyone thinks I actually think Hobby Lobby should win its case, I don't. I just don't think that the Court should be in the business of determining whether religious beliefs are scientifically supported, because I believe that necessarily leads to courts determining what religion is "correct".
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Mar 27, 2014 00:53
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Paul MaudDib posted:That's essentially what we already have, except instead of quibbling over whether a religious belief is "truly held" we quibble over whether whether the government has a "valid interest in restricting that conduct". That's the wrong standard. RFRA requires strict scrutiny - a compelling interest and that the government use the least restrictive means to further the interest. Also, I agree that the government should judge sincerity of religious beliefs. It shouldn't judge scientific accuracy of religious beliefs.
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Mar 27, 2014 01:12
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thefncrow posted:This is where I feel your argument becomes nonsense. "These forms of birth control cause abortion" is an empirical claim, regardless of whether or not it's couched in religion by adding "My religion believes that" to the front of the belief. I just fundamentally disagree with you. Religious freedom should not be subject to a "scientific accuracy" test. Young earth creationists are free to believe that the earth is 6,000 years old, Mormons are free to believe that American Indians are descended from the tribes of Israel, Christians who take the bible as literal truth are free to believe in a world encompassing flood, certain Christian groups are free to believe that evolution is false (well, they are all free to believe it, but only some do). All of these beliefs are empirically false, but all of these groups are free to believe them and free to develop whatever religious practices and prohibitions they choose based on them. If the government passes a law that these groups believe burden their practice of religion, the correct response is not "your religious belief is scientifically inaccurate, therefore it is not worthy of protection." The correct response is something like what we actually do - weigh the government's interest in whatever cause it is trying to further against the burden on the practice of religion. I happen to believe that RFRA's strict scrutiny standard is probably too high when laws are facially neutral and the religious practice directly burdens people not of the religion in question, but that's not related to whether we should subject religious beliefs to scientific testing.
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Mar 27, 2014 19:03
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twodot posted:I'm not sure if this was your intention, but I want to note here that Hobby Lobby not providing coverage for certain contraceptives doesn't burden any third parties as far as the law is concerned. The government would be entirely ok if Hobby Lobby didn't provide for those contraceptives while paying the fine/tax, the substantial burden here isn't just "You want us to cover things we don't want to cover", but "You want us to cover things we don't want to cover, and if we don't, you will fine/tax us out of existence". Yeah, I wasn't really talking about Hobby Lobby there, just my general opinion of RFRA.
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Mar 27, 2014 20:04
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evilweasel posted:I mean you'd ideally want Thomas because he's the youngest so you're getting a replacement ahead of schedule, but I'd rather get rid of Scalia because Thomas actually has a legal philosophy, just one I profoundly disagree with. Scalia has a political philosophy, and the right legal answer is always what is in line with that legal philosophy. Thomas will bite the bullet and vote for something he politically disagrees with: Scalia will not. The best example is where Scalia suddenly realized although the commerce clause is the devil, when it comes to the Devil's Weed then it's suddenly ok for the Federal Government to regulate it - but not anything Scalia doesn't want regulated. Wanting to replace someone other than Thomas also makes sense because he's not an especially influential justice. If a close commerce clause case comes along, Roberts/Alito/Scalia/Kennedy might be able to convince Roberts or Kennedy to join a majority (depending on which one is on the fence) - Thomas is always going to be out on his island screaming "overturn the last century of commerce clause precedents" and convincing nobody. Not My Leg fucked around with this message at 01:38 on Apr 26, 2014 |
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Apr 26, 2014 00:14
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Discendo Vox posted:In this case, Coke was acting in good faith. The thing POM is attacking is the normal practice of most blended juice product manufacturers, because the word "flavored" is normally read to mean (and legally implies) "tastes like". There are other regs on disclosing whether or not there is any of the flavor substance in the product. What POM's done is the classic anti-regulatory move- "hey, look, these wacky technical administrative regs that you've never heard of before are leading to a result you think is counterintuitive! Let's axe 'em and get to something that's plain and clear that everyone can understand!" A couple issues. First, whether its the normal practice of blended juice product manufacturers shouldn't be relevant, because the party being subjected to potential deception is not other blended juice product manufacturers. When trade terms are used to market products to parties outside of the trade, the ordinary meaning trumps the trade usage. The Supreme Court addressed this in 1922 in Federal Trade Comm'n v. Winsted Hosiery, holding that using the term "merino" (and other similar terms) to market partially non-wool underwear to consumers was deceptive, even though the industry understood the term to include both pure wool and partial wool products. Unless the trade usage has become so well established as to be understood by consumers, it cannot substitute for ordinary meaning. Second (and this is directed generally, not specifically at Vox) the Supreme Court decision wasn't about whether the label actually violated the Lanham Act. The issue was whether a competitor could sue for false advertising under the Lanham Act when the label satisfied FDA requirements. I don't see any good reason for the court to bar such suits absent an express legislative directive. This is a straight question of statutory interpretation, and unless two statutes are literally irreconcilable I don't think the Court should substitute its judgment for the judgment of Congress. If Congress doesn't want to allow these suits, it can amend either act to expressly preclude application of the Lanham act to areas covered by the FDA.
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Jun 12, 2014 23:35
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Discendo Vox posted:You're likely entirely right, I don't know that much about FTC. It's very worrisome, then, because my understanding is that there's effectively been a gentlemen's agreement between FTC and FDA in most areas, FTC's position being "we're not the people spending millions of dollars on labeling design research and laboratory testing-you guys should handle this, we'll gently caress it up". The FTC's been brought up by anti-dietary supplement groups as an avenue for stopping abusive structure function claims, but that's because FDA's hands are tied in that area. The prospect of industry using Lanham as a means to relitigate the interpretation or boundaries of FDA regs for competitive purposes is really scary. I honestly have mixed feelings about Lanham Act claims based on consumer deception that don't have a connection to brand or trademark dilution. I understand why the actions exist, but I tend to think that consumer deception should be prosecuted by agencies whose primary job is to protect consumers (or by consumers themselves, whose primary job is to make sure class action attorneys get money). I am naturally skeptical of consumer deception claims brought by parties whose main interest is in securing a competitive advantage, and whose interest in consumer protection is merely incidental. It's different when there's actual trademark or brand dilution occurring. Coca-Cola obviously should be able to bring suit against the Gay-Ola Company for deceptively marketing its product as Coca-Cola (as considered in the honestly not made up case of Coca-Cola Co. v. Gay-Ola Co.).
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Jun 13, 2014 00:13
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Kalman posted:It indirectly weakens the concept of field preemption, which is useful in a lot of things and in particular for preventing lovely state laws from loving up federal regulatory schemes. It's not a preemption case, its a preclusion case. There are different considerations that apply when considering whether Congress has preempted state law (a supremacy question) and whether Congress has precluded application of other federal statutes (a question of silent repeal of a statute). Maybe that's what you meant by "indirectly" though, because some of the considerations overlap. In any case, I believe the FDA Act expressly preempts state labeling standards that are not identical to the federal standards. VV Fair enough. VV Not My Leg fucked around with this message at 00:43 on Jun 13, 2014 |
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Jun 13, 2014 00:30
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Kalman posted:Dicta! Not in this case though, because the act considered in this case expressly preempts state regulations that are not identical to the federal regulations. The fact that the Court did not find implied preclusion won't impact the express preemption analysis. Discendo Vox posted:The difficulty with this ruling is that it seems to be setting the stage for industry to attack FDA regs via FTC claims- so it's less about convincing the FDA to pass regs than it is using Lanham as a cudgel to "adjust market scope"- meaning remove the competition. That's exactly what POM is trying to do with this case. Just a slight correction. Lanham Act claims are not FTC claims. The FTC's authority under the Lanham Act is limited (I think its only power is applying to invalidate certain trademarks) and the act is almost entirely dependent on private enforcement. The FTC Act, on the other hand, is enforced exclusively by the FTC - no private right of action exists at all. So it's not really accurate to say that industry will use FTC claims to attack FDA regulations, they'll use Lanham Act claims.
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Jun 13, 2014 01:48
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evilweasel posted:It happens when you've got bigger states and are trying to get like 10 out of 13 seats. People vastly overestimate how close you need to make districts to engage in effective gerrymandering. Let's use your example of a 13 district state, you want to win 10 seats, and let's assume a 50-50 split in voter preferences. To make things easy, I'm going to use 1,300 voters total in the state, 100/district. First, spread the Republicans around. You have 650 republicans, and 10 districts. We don't want a completely ridiculous scenario where there are literally 0 Republicans in the Democratic seats, so let's hold back 50 to spread around those districts. That leaves us 600 Republicans for 10 districts, resulting in 10 districts split 60-40 in favor of the Republicans. The remaining Republicans get spread around the last three districts (17 in two, 16 in the other), along with the Democratic voters, resulting in two 17-83 districts, and one 16-84 district. That's not a particularly ridiculous split. The 16-84 district would be somewhere around the 35th most stacked district in the nation, the other two would be top 40-45. As for how safe the 20 point districts would be for Republicans. There are 229 districts with a PVI of +11 or more in favor of one party or the other.* Of those districts, just three are held by a member of the opposite party; slightly over one percent. Essentially, this gerrymander turns 10 seats into near guaranteed wins for Republicans, and a population that is split 50-50 has a congressional delegation that's nearly 80 percent Republican. No actual gerrymander would be as perfect as this hypothetical, but it's just not true that manufacturing huge advantages in representation requires creating vulnerable seats. *PVI is calculated based on how more favorable a district was toward a party than the electorate as a whole was toward the party's presidential candidate. Since the last election was 49R-51D, a district that's 60R-40D is R+11.
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Jul 9, 2014 01:29
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evilweasel posted:It doesn't require creating vulnerable seats. However, if you get greedy, you can shave your margins thin enough that so while they were safe at the beginning, a little demographic shift makes them far more competitive than you planned at the end. That's the key: the decay of the gerrymander as the new census approaches. That's true. Do you know if there's any published research on this? My gut tells me the impact may be relatively small, but I'm not basing that on anything other than my gut.
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Jul 9, 2014 20:00
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ActusRhesus posted:You're right. The dockets of the circuit courts and supreme court are so light, and there are so few petitions for cert that they just hear every case that comes across their desk. There's no scrutiny at all before a case is granted cert. In fact, it's done by coin flip. Okay, maybe you aren't the best person to be talking about this, since you're apparently just making things up now. With very few exceptions, the "circuit courts" are obligated to hear every case that comes across their desk. For the vast majority of cases, once the District Court has made a final decision, the parties have "appeal as a matter of right" to the Court of Appeals, if a party files a notice of appeal, then the Court of Appeals is required to hear the case (it does not necessarily have to grant oral argument, it can affirm or reverse the District Court based solely on the briefs). Once the Court of Appeals has made a decision, then the litigant (generally) does not have any further right of appeal. That's when the petition for cert comes up (or petition for en banc review) both of which are discretionary and may be denied (and usually are denied). That's somewhat irrelevant here, because the 5th Circuit has not made any decision yet, so nobody has filed a petition for cert. Basically, the fact that a case has made it to the Court of Appeals usually means three things; the District Court made a final decision; one or both of the parties didn't like the decision; and that party had enough resources to keep fighting. It says absolutely nothing about the merits of the case.
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Oct 15, 2014 22:52
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ActusRhesus posted:You're right. I was inartful. Cert goes to supremes, but the circuit can still give a one sentence gently caress off per curiam if it's complete bs. Fair enough. And sometimes they use the one sentence even if it isn't complete bs. I've seen the Circuit Court go all the way through oral argument, have what seemed like vigorous debate at oral arguments, sit on the record for months, and then give a one sentence "per curiam, affirmed".
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Oct 15, 2014 23:18
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Discendo Vox posted:An effective takedown of the bill/argument would be a) here are the procedures involved b) here are which clinics are at issue c)here are the clinics only offering procedures that are obviously not within the stated category the bill attaches the admission rights requirement to d) the bill is overinclusive. I know it seems arbitrary, but that's how to dismantle that argument. You have the argument wrong. The argument isn't that the law attaches an admissions requirement to X, but clinic A only does procedure Y, so it shouldn't be covered but is. The argument is that the law attaches an admissions requirement to clinics that provide abortions (and other requirements), the admissions requirement (and the other requirements) are medically unnecessary for clinics that provide abortions and imposed only for the purpose of interfering with the Constitutional right to abortion, therefore the law "has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion” and is unconstitutional. Although the law also appears to have an overbreadth problem, that's not the primary issue in the lawsuit. The lawsuit was decided on the grounds that it put an undue burden on women seeking abortions.
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Oct 16, 2014 01:19
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Obdicut posted:It's inappropriate to insist that we can't also talk about the subject in common language. I'm not making a legal argument. I'm saying that the current amount of regulation of abortion in Texas is already far more than is medically necessary or helpful. Also, the new regulations that cause clinics to close thus absolutely and definitely raise the risks and hazards for women seeking abortions (whether that risk is from a back-alley abortion, unsafe abortifacients, or just more time before the abortion). Here's where I think some of the confusion is coming in. When a lawyer says a law is "overbroad" they generally mean that it covers cases in which it would be constitutional, but it is written so broadly that it also covers cases in which it is unconstitutional. So, a law that says nobody can own guns is overbroad (post Heller), because while it covers some situations that are probably fine (banning ownership of machine guns) it also covers situations that are not (handguns). When you say "overbroad" I suspect you mean "overly burdensome", which is to say, it impedes a persons ability to exercise their constitutional rights without sufficient justification. A law that says all doctors who perform abortions must also be chess grandmasters is overly burdensome, because it burdens a woman's right to access without sufficient justification. I happen to agree that the Texas law is also overly burdensome, because it imposes medically unnecessary restrictions on the right to receive an abortion, which has the effect of impairing the right without sufficient justification (contrast that with a law that says "abortion providers must be doctors" which burdens access to abortions, but is not overly burdensome, because it provides a significant countervailing medical benefit). Different constitutional rights have different legal standards to determine what is overly burdensome, with abortion law being a bit of a mess, and the standard (from Casey being "has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion." It's probably some form of intermediate scrutiny, but hell if I know. Not my area of law.
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Oct 16, 2014 01:54
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Discendo Vox posted:It's worth noting that Scalia has seniority- any justice removed other than Scalia would result in him operating as chief justice in the interim. Removing Scalia would put Kennedy in the hotseat, which would be potentially beneficial, but there are others I'd like off the bench first. Not sure what you meant to say here, but that's not how the position of Chief Justice works. Chief Justice is a separate position to which a person must be nominated or confirmed. Roberts is Chief Justice, and so long as he is on the bench he remains Chief Justice, regardless of who else might step down or get removed. The only way Scalia would become interim Chief Justice is if Roberts stepped down, leaving the Chief Justice's seat vacant. In that case, Scalia would be Chief until confirmation of a replacement.
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Oct 20, 2014 20:34
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Gaussian posted:But of course he won't recuse himself. And yet it will have absolutely no impact on his decision. Seriously, if there's one justice I trust not to be swayed by politics, it's Thomas - he's too crazy.
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Nov 7, 2014 20:48
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ProperGanderPusher posted:This is true. For you see, the Constitution is like the Torah. The document was literally perfect the section the last signature was added. Subsequent developments have been mere heresies and innovations that taint the original divine message of the document and we should be working like rabbinical scholars to try our best to restore the original intent of the document as conceived by men of unfathomable genius, the likes of whom our nation may never see again. I was going to go on a long originalism rant, but I cut most of it out. There is a serious amount of founder worship connected to originalism, but the academic grounding of originalism isn't that the founders were right, its that they're all we've got. Assuming a law has not been amended, the only people who ever expressed consent to the law through the democratic processes are the people alive at the time of the laws enactment. Those people obviously consented based on their understanding of the law. If you believe that consent of the governed is necessary for the validity of our laws, then we must look back to that original understanding, because that is the only version to which the people have expressed their consent. If the people do not like that understanding, then they should use the democratic process to rescind their consent and adopt a new understanding. To be clear, I'm not an originalist, and I think I disagree with literally every premise of the argument I just wrote, but that's the basic originalist argument summarized. It's not that original intent is best, it's that anything else is non-democratic. Also, while it has roots in formalism, originalism is primarily a political movement aimed primarily at rolling back the progress of the Warren Court.
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Nov 10, 2014 21:38
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Munkeymon posted:Which is the subjective standard? The one that depends on the intent of the speaker. It is "subjective" because it depends on what the speaker actually intended, rather than the "objective" standard of whether a reasonable person would believe the speaker was making a threat.
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Dec 1, 2014 22:23
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The Warszawa posted:In the interest of changing the subject to something, anything else, here are two things: Is there a link to the actual list of 66 super attorneys? I read the SCOTUSBlog article and skimmed the Reuters report, but didn't find a list. Not My Leg fucked around with this message at 21:51 on Dec 8, 2014 |
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Dec 8, 2014 21:45
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Discendo Vox posted:Selective enforcement via the administrative apparatus is a big gap in the constitutional structure of the government- I'm not sure what the long-term solution is. Be a parliamentary democracy?
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Dec 20, 2014 01:14
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twodot posted:Even if they were objectively incorrect about this, no one would have the authority to tell them they are wrong. Over the long term, the executive (with Congress) has the power to tell the court it is wrong, by nominating people who will overturn past precedent. In the short term, Congress has the authority to tell the Court it is wrong by impeaching justices for violating the Constitution. You can say neither is likely, but that's an issue of political will, not lack of authority. Also, just so people don't think I'm saying Congress should do this, I have no informed opinion on the Supreme Court's discretion with respect to original jurisdiction cases.
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Dec 23, 2014 19:48
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Hot Dog Day #91 posted:I can't wait for those hearings. Appoint a magistrate to hear the case.
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Dec 23, 2014 20:29
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twodot posted:Congress can impeach, but the cases would still have been ignored. The President can appoint, but the cases would still have been ignored (and was ignored for probably multiple decades). My point isn't about likelihood, it's about after the Court decides it doesn't want to hear your case, what recourse you have, which is none. I thought you were talking about the doctrine, not individual cases. If it's just an individual case, then I suppose Congress could still give you the result you wanted, either through legislation or amendment.
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Dec 23, 2014 20:30
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evilweasel posted:What are you thinking would be a legitimate lawsuit against a court itself? I don't really understand what sorts of problems you're thinking this would address so it's hard to give an answer. Judicial taking? I don't think that Stop the Beach Renourishment killed the theory of judicial takings, and I can see a procedural fact pattern where the proper defendant would arguably be the court (although probably not SCOTUS). Not My Leg fucked around with this message at 23:51 on Jan 13, 2015 |
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Jan 13, 2015 23:44
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patentmagus posted:How could you prove lack of due process if the process led to the taking? Takings (in this context) aren't a due process issue, they're a just compensation issue. If the government seizes private property for a public use, it must pay the owner "just compensation" regardless of how much due process preceded the taking. Since the judiciary is part of the government, the takings clause theoretically applies to it, but it takes an odd fact pattern to result in something that could be described as the judiciary taking property for public use. I don't deal with this part of takings law much, so someone else correct me if you know better, but I think the best arguable example would be a decision by a state court that converts well established private property into public property. To make something up that's somewhat comparable to reality. Assume a state supreme court held in 1940 that shorelines were private property, owned by the upland owner, to the point of the median low tide. Then, in 2015, the same court decided it was wrong back in 1940, and the shoreline is actually public property. That would be a governmental action that converted private property into public property without compensation, and therefore, arguably, would be a judicial taking. Not My Leg fucked around with this message at 05:14 on Jan 17, 2015 |
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Jan 17, 2015 01:28
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Adar posted:Again, that's an issue of process. DP should not be an option for present day run of the mill criminal trials in the US both because of the possibility of error and the racial disparities in its application. But it's a stretch to argue that this extends to a Paul Bernardo or a Dzhokar Tsarnaev/McVeigh etc. In practice a "scintilla of doubt" standard would restrict its application to self-proclaimed terrorists who have actively committed murder, serial killers and crimes entirely caught on tape. At that point you're talking about a population of high profile defendants who rarely go to trial other than to plead insanity; the mountain of controversy the death penalty generates largely does not exist in those cases. Your argument relies on an assumption that in the case of people who unquestionably committed the act in question, our criminal justice system is able to flawlessly adjudicate the mental health of those individuals (or you believe that insanity as a defense is not morally required). I do not have any confidence in that position, so even in the case of the people listed, I don't think I could support the death penalty in practice, even though I don't believe that the death penalty is always morally impermissible.
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Jan 19, 2015 19:43
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evilweasel posted:Once a case is settled the Court no longer has jurisdiction as there is no longer a case or controversy. However the Supreme Court doesn't google things and do things on their own: it's the responsibility of the parties to notify the Supreme Court the issue is now mooted and withdraw the appeal, at which point the Supreme Court will cancel arguments. Technically, since the lack of a case or controversy deprives the Supreme Court of subject matter jurisdiction, the court does have a responsibility to dismiss the case on its own, even if the parties never bring up the settlement. In practice, of course, you are right. The parties know they have settled before the court knows, and the court will strike the argument as a matter of course once they are informed of the settlement.
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Feb 3, 2015 18:37
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Discendo Vox posted:I'd think "manner" would pretty clearly include redistricting. I'd also think political question would pretty clearly apply. (I'd also really like a set of five hypothetical conservative justices not to weigh in on how districting can operate). I agree with evilweasel on this one. Manner could be interpreted broadly enough to include redistricting, I'm just not sure why that result is clearly mandated by the language and I find the other interpretation more plausible. Time refers to the dates/times that one may cast votes, place refers to the location that one may cast votes, manner refers to the methods by which one may cast votes. I don't see any reason that manner should be interpreted as broader than that, and certainly no reason it is necessarily broader than that.
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Feb 24, 2015 23:33
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Discendo Vox posted:The implementation of marriage equality is a pretty good indication of why having the judiciary directly involved wouldn't help the situation. How so? That seems like a bit of a non sequitur.
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Feb 25, 2015 02:32
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ActusRhesus posted:I think "agenda" is too broad to really effectively answer your question. Plus, there are other complexities to consider. For example, as a prosecutor my "agenda" should theoretically be to make sure convictions are affirmed. However, I consistently agree with Scalia's 4th Amendment opinions which are largely pro-defendant...because even though I prefer people be convicted for crimes they commit, I also don't think it's that hard to get a goddamn warrant. For me, it really varies from case to case and issue to issue which justice I prefer. I think Vahakyla means you can assume that the justice will support your agenda no matter what. The question is, if you assume the person you pick will always agree with you, who would be best at convincing others to come along. I don't know who I would pick, but I know it definitely wouldn't be Thomas. I probably also wouldn't pick Alito. I don't think I'd pick Breyer either. I don't have enough of an impression of Kagan or Sotomayor to judge how influential they might be. Roberts strikes me as a good deal maker. RBG is awesome and I assume people are convinced by her awesomeness. Scalia is probably better at landing rhetorical jabs than dragging people to his position, but he would be one I would consider (again, assuming he would magically become left-wing Scalia for me). E: I kicked Kennedy off the Court. He's actually an obvious choice, because he is often the deciding vote. Doesn't matter if he doesn't convince anyone else if you already have 4 other votes. From that perspective, it would probably be better to just take the most reliable conservative vote and turn him into a liberal. That basically swings the court to 3-1-5 on most ideological issues. Not My Leg fucked around with this message at 00:14 on Apr 3, 2015 |
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Apr 3, 2015 00:11
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Mr. Nice! posted:That happens sometimes when the court wants to punt a particular issue that it doesn't have a good grasp on. Now all the lower courts can play around with whatever standard works best and eventually another case will come back up that has a better standard in place for them to rule on. It may also be that the justices could all agree that negligence wasn't enough, but they couldn't get five justices to agree on what the standard should be. Given that deciding the actual standard would probably require deciding the First Amendment issues, the justices may have decided that it made more sense to write a limited opinion that everyone could agree on than have a confusing mess of conflicting non-majority opinions. If the Supreme Court's opinion is likely to create a circuit conflict, they might as well not issue the opinion and see if the circuits can avoid a conflict left to their own devices.
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Jun 1, 2015 17:37
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Willa Rogers posted:Obdicut, I answered your post in the PPACA thread. Obdicut, do I actually have to go read the PPACA thread or can I just assume this is Willa being Willa?
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Jun 5, 2015 20:43
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mdemone posted:I don't know nothin' about this case, but as the parent of a toddler, Just to clarify, the case wasn't about whether a three year old can serve as a witness, it was about whether the toddler's out of court statement (that he was abused) could be admitted in court, without requiring the toddler to actually appear in court as a witness and be cross examined (which is usually required by the confrontation clause). The court unanimously held that it could be, basically because the statement was not testimonial, so the child was not a witness, and therefore the statement did not implicate the confrontation clause. As others have pointed out, there's a great slapfight between Scalia's concurrance (joined by RBG) and Alito's majority. Basically, Alito hates Crawford v. Washington, and repeatedly tries to undermine it throughout his opinion (and this isn't the first time he's made his disagreement known). Scalia takes him to task. Scalia posted:I write separately, however, to protest the Court’s shoveling of fresh dirt upon the Sixth Amendment right of confrontation so recently rescued from the grave in Crawford v. Washington.
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Jun 18, 2015 18:47
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Beamed posted:Am I understanding right that Ginsburg won't release any opinions now, as they're released in reverse seniority? Or is that on a per-day, not per-year, basis? For the year, opinions are released on the first announcement day after the opinion is finalized. On each announcement day, the opinions that are ready are presented in order of reverse seniority, with the Chief Justice always going last, regardless of his time on the bench. Aside from the announcements, there's also some effort by the court to balance workloads on a monthly basis, with each justice generally writing at least one majority opinion for each month (based on when the case was argued, not when the opinion is announced). Right now, for example, the only opinion remaining from the court's January sitting is Texas Department of Housing and Community Affairs v. The Inclusive Communities Project and Justice Kennedy is the only Justice without a majority opinion from January. That means it's a decent bet (but not certain) that Kennedy will be writing that opinion. That's better for supporters of disparate impact analysis than the alternative, because before the opinions were announced today, the other likely possibility was Justice Thomas (but he got the sign case from January).
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Jun 18, 2015 19:35
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