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9th Circuit Dismisses Case Challenging Extraordinary Rendition

September 9, 2010 Leave a comment

On Wednesday, the 9th Circuit dismissed a case brought against a Boeing subsidiary for its alleged role in the CIA’s extraordinary rendition program. Five individuals arrested shortly after 9/11 brought the case against Jeppesen Dataplan Inc., alleging that the Boeing subsidiary conspired with the CIA to render them to foreign countries where they were tortured. Shortly after the suit was filed, the federal government stepped in asserting that the case must be dismissed to prevent the disclosure of state secrets. The sharply divided court of appeals issued a 6-5 en banc decision upholding the government’s assertion of the state secrets privilege. The court dismissed the case in its entirety, preventing the plaintiffs from proceeding with evidence that would not encroach upon state secrets. Ben Wizner, the ACLU attorney who represents the five men, plans to appeal to the Supreme Court.

“If this decision stands, the United States will have closed its courts to torture victims while extending complete immunity to its torturers,” Wizner said.

If the Supreme Court takes the case, all eyes will be on Justice Kennedy. Since Justice O’Connor retired in 2006, Justice Kennedy has been the primary swing vote on the Court. I will not try to predict how the Court might decide this issue, but there is a strong likelihood that the decision will come down to Justice Kennedy’s vote. I would not be surprised to see the Court take a middle position, allowing the plaintiffs’ suit to proceed but excluding all evidence that can be fairly characterized as a state secret.

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Property: Conveyance Interpreter

September 1, 2010 Leave a comment

I ran across the “Conveyance Interpreter” at Legal Blog Watch. What is the conveyance interpreter you ask? Well, for anyone who has suffered through the misery of trying to decipher complicated conveyances in Property, the conveyance interpreter may be a godsend. The conveyance interpreter, created by Prof. Shawn Bayern of Florida State College of Law, translates those complicated conveyances for you, explaining the property interests created in the conveyance and mapping out exactly how the conveyance works.

Here’s a simple conveyance I asked the interpreter to translate: “To A for life, then to B.”
And here is what the conveyance interpreter spat out:
simple conveyance

1Ls might find this handy next spring, but don’t forget to actually learn conveyances because the interpreter isn’t going to take your finals for you.

“Innocent” File Sharer Petitions SCOTUS for Writ of Cert

Every law student is familiar with the latin phrase “ignorantia juris non excusat” or “ignorance of the law does not excuse.” Well, the Supreme Court may review a modern twist on this age old maxim if it takes up Whitney Harper’s appeal in Maverick Recording Co. v. Harper. As a teenager, Harper used LimeWire to download 37 of the plaintiffs’ copyrighted songs. The plaintiffs asked the district court to impose at least the minimum statutory fine of $750 per song, for a total of $27,750 in damages. However, Harper asserted that her liability was limited to $200 per song because she was an “innocent infringer” under the Copyright Act which provides

“where the infringer sustains the burden of proving . . . that [she] was not aware and had no reason to believe that . . . her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200.”

In essence, the innocent infringer exception allows a defendant to assert ignorance of a copyright as a defense to the minimum statutory penalties. Harper claimed that she did not know she violated anyone’s copyright because she believed she was streaming the music as if LimeWire were internet radio. The district court, persuaded by Harper, capped her liability at $200 per violation. However, the 5th Circuit reversed, awarding the plaintiffs’ $27,750 in damages. The 5th Circuit held that Harper could not avail herself of the innocent infringer exception because the CDs of the songs Harper downloaded contained a copyright warning. So, even though the digital copy of the song did not include a copyright warning, the CD supposedly put Harper on notice that the songs were copyrighted. You can read Harper’s petition for writ of certiorari here.

Public Safety Exception to Miranda Used for Terror Suspects

Justin Elliot over at Talking Points Memo reports on the Obama administration’s use of an exception to Miranda that’s being used in an effort to gain admissible evidence during interrogations of terror suspects before the suspects are read the Miranda warning. TPM reports:

Federal agents questioned both Faisal Shahzad, the man accused of planting a makeshift bomb in Times Square, and Umar Abdulmutallab, the failed Christmas Day bomber, under the so-called public safety exception to the Miranda rule for substantial periods before informing the men of their right to remain silent, and to an attorney.

While the “public safety exception” is grounded in a 1984 Supreme Court decision, the Obama administration’s reliance on the exception in an attempt to obtain admissible evidence over hours of pre-Miranda interrogation appears to be unprecedented.

Read more…

America’s War on Drugs

The video below captures everything that is wrong with America’s war on drugs. A SWAT team bursts into the home of a Columbia, MO family, shooting the family’s two dogs in front of young children… all over an insignificant amount of marijuana that led to misdemeanor possession charges.

*The video contains graphic language and content

SCOTUS Strikes Down Law Banning Videos Depicting Animal Cruelty

April 21, 2010 2 comments

In an 8-1 decision, the Supreme Court yesterday struck down a federal law that criminalized the commercial creation, sale, or possession of video depictions of animal cruelty. The law defined “depiction of animal cruelty” as any video in which “a living animal is intentionally maimed, mutilated, tortured, wounded, or killed, if such conduct is illegal under Federal law [or State law].” Violations of the law were punishable by up to 5 years in prison.

The law was challenged on First Amendment grounds by Robert J. Stevens, a distributor of films that depicted dog fights in Japan and the U.S. Dog fighting is prohibited in all 50 states and by federal law. Stevens sold videos of dog fights through his website and was prosecuted on three counts of violating the act. In federal district court, Stevens was found guilty and sentenced to 37 months in prison.

Read more…

President Obama Orders Hospital Visitation Rights for Same-Sex Partners

April 16, 2010 Leave a comment

President Obama has ordered the Department of Health and Human Services (HHS) to formulate rules that would extend hospital visitation rights to same-sex partners. The new rules would apply to all hospitals receiving Medicare and Medicaid reimbursements, which nearly all hospitals do. The regulations would require hospitals to allow patients to decide who may visit them and prohibit hospitals from discriminating on a variety of characteristics, including sexual orientation. If adopted, the regulations would negate the policies of many hospital that restrict visitation rights to immediate family members. For more on this new policy, you can read the Presidential Memorandum to HHS here.

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