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An Appeal-Resistant Recognition of Fundamental Rights

August 9, 2010 Leave a comment

Summary:

  • Judge Vaughn Walker of the Northern District of California recently ruled that the U.S. Constitution gives same-sex couples the right to marry.
  • The opinion rested first on the Due Process Clause, finding that marriage is a fundamental right and concluding that our contemporary understanding of marriage encompasses same-sex marriage.
  • The opinion also rested on the Equal Protections Clause and rejected all proffered state interests in limiting same-sex marriage as irrational.
  • Importantly, the opinion relied not on conclusions of law but instead on appeal-resistant findings of fact.
  • Though a backlash to granting same-sex marriage rights is possible, the lack of legitimate state interests makes the backlash less likely when compared to the backlash against abortion rights.

This article is by Keith Southam, a 3L from Chicago-Kent.

Proponents of same-sex marriage scored a major victory recently in the federal Proposition 8 case.  Perry v. Schwarzenegger.  No. C 09-2292 VRW (N.D. Cal. Aug. 5, 2010).  In the opinion, Judge Vaughn Walker concludes that the United States Constitution guarantees same-sex couples the right to marry.  His decision is remarkable because of what it concluded, what it did not conclude, and its prospects going forward.

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Miranda’s “Right to Remain Silent”” Doesn’t Mean Remain Silent

The Supreme Court of the United States recently decided a case that is counterintuitive at first glance.  In order for a suspect to invoke their right to remain silent and end any interrogation, they must verbally say that they are going to remain quiet.  While this may seem like a drastic change, it may also be viewed as an alignment with a suspect’s other 5th Amendment right to attorney which must be verbally invoked in order for an interrogation to cease.  This 5-4 decision is in favor of the police and allows officers conducting interrogations to continue those interrogations until they are explicitly told by the suspect that he/she wants to remain silent.  There is less chance for error that a police officer will interpret a suspects silence one way while the suspect himself will interpret it another way, resulting in a question of admissibility of anything divulged during an interrogation.  However, this decision runs counter to Miranda, so it is anyone’s guess as to the overall impact moving forward.  To learn more, please read 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.

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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.

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“Completely Evil Social Network”

The Chicago Tribune published a story today about a new website that is being developed by an entrepreneur in San Francisco called “Unvarnished”. The website is meant to take on other social networks, such as Linkedin and Facebook, but operates like Yelp with one huge difference: Unvarnished is a place for people to post reviews of professionals, not restaurants.

It is not well populated yet, but the reviews so far are scathing. One commentator said that Unvarnished is a “[c]lean, well-lighted place for defamation.” Apparently, the posted comments are not fact checked nor are they verified by any means at all, leaving one’s professional reputation extremely vulnerable.

This brings up a number of increasingly important legal points. First, judges and attorneys are going to need to keep up with the way technology works. When defamation claims are filed based on internet postings or content, and they inevitably will, judges cannot expect to rely on making comparisons to physical guest books or graffiti on a wall. Metaphorically comparing internet technology to real life does not work. A great example is document retention programs on huge international networks and data farms versus filing closets; these cannot be directly compared when making discovery rulings.

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Constitutionality of the Individual Mandate to Buy Health Insurance

March 24, 2010 Leave a comment

The attorneys general of thirteen states have filed a complaint in the Northern District of Florida challenging the constitutionality of the newly enacted health care reform bill.[1] While the complaint launches a variety of challenges against the bill, many based on notions of state sovereignty, the most interesting argument focuses on whether the Commerce Clause empowers Congress to require all Americans to obtain health insurance.

The Patient Protection and Affordable Care Act, signed by President Obama on March 23, requires all individuals to purchase health insurance if it is affordable and if the individual does not fall into any exception.[2] According to the attorneys general, the individual mandate to buy insurance exceeds the scope of Congress’s power under the Commerce Clause. This argument may have seemed laughable a mere twenty years ago; however, recent Supreme Court decisions limiting the scope of the Commerce Clause, coupled with an activist conservative majority on the Court, may breathe life into this seemingly inane argument.

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