An Appeal-Resistant Recognition of Fundamental Rights

August 9, 2010 Leave a comment


  • 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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Elena Kagan 112th Supreme Court Justice

August 5, 2010 Leave a comment

The Senate confirmed Elena Kagan to become the fourth woman ever to sit on the Supreme Court bench and marks the first time there have been three female Supreme Court justices at one time. 63 yea, 37 nay.

For more information, click here.

Categories: General

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.

“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.

The NFL is not a Single Entity

May 24, 2010 2 comments

The Supreme Court of the United States ruled that the NFL is not a single entity for any matters. Despite the fact that the NFL is one of the more centralist leagues, in that it attempts to share profits and package rights more so than other leagues, the Court has decided that no league consisting of separately owned teams is a single entity. That baseball is allowed antitrust freedom is an aberration and is limited to baseball. See the opinion here.

The NFL and other leagues are allowed to package their TV rights and sell them off as one entity because of the Sports Broadcasting Act. This act of Congress allows the leagues to avoid antitrust liability for the limited purpose of selling TV rights. MLB is allowed to conspire and act as a single entity even though it clearly is not. The MLB does not even need to pretend to be a single entity because of its broad antitrust immunity. The Court has always been reluctant to expand antitrust immunity to other leagues or to even expand the MLB’s immunity, leaving it up to Congress to repeal or expand immunity. However, since the NFL teams had begun to work together and act as one entity, it appeared that the Court would have valid legal grounds to justify a holding that the NFL is a single entity. Read more…

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