So if you act without thinking you shouldn't be held accountable?
Or at least as accountable. Thus, the distinction between voluntary manslaughter and premeditated murder. It's the same act with the same result, but with a different mental state.
This is a load of bull. Gore DID win the majority vote
No, he did not. Gore won a plurality of the popular vote, but no candidate won a majority. In fact, no presidential candidate has won a majority of the popular vote since 1988.
People forget that the constitution says nothing about foreign affairs
Not true. The Constitution does speak to who holds power when it comes to foreign affairs.
Art. I, sec. 8, cl. 3, 5: The Congress shall have Power To regulate Commerce with foreign Nations, To coin Money, regulate the Value thereof, and of foreign Coin
Art. I, sec. 9, cl. 8: [N]o Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.
Art. I, sec. 10: No State shall, without the Consent of Congress . . . enter into any Agreement or Compact with another State, or with a foreign Power . . ..
Art. II, sec. 2, cl. 2: [The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls . . . .
Not like that at all. Criminal is different than civil. You have to be in the same state in most cases to collect on a civil judgment. If you're not, it's a huge pain in the ass. All this guy has to do is move out of the state and keep all of his assets out of the state. In most states, in 10 years or so, the judgment will be automatically cancelled unless the winner refiles to continue.
A huge pain in the ass? Yes, the plaintiff gets the judgment in California. But then he goes to a New York court with a certified copy of his California judgment and then -- by virtue of the Constitution's Full Faith and Credit Clause -- the New York court issues a writ of attachment allowing the plaintiff to levy on defendant's New York property. It's an extra step, but it doesn't make the defendant judgment-proof.
Herein lies, I'd argue, at least one reason behind the 4th Amendment to the U.S. Constitution. It basically says to the government, "If you don't have a reason to be looking at John Q. Public, you shouldn't be looking at John Q. Public." These projects constitute a massive fishing expedition, and we're all suspect.
I appreciate the rationale behind your argument, but it is legally wrong. The Fourth Amendment says that the government may not conduct warrantless searches (except where obtaining a warrant first would be unreasonable). Of course, the antecedent question is, "Has there been a search?" And the Supreme Court has held that there is no "search" if you do not have a reasonable expectation of privacy (thus, a search of the garbage cans you leave out for collection is not really a "search" for Fourth Amendment purposes). So, as to information readily available to the John Q. Public, you have no reasonable expectation of privacy, and therefore the government may search it without running afoul of the Fourth Amendment because -- as a legal matter -- there is no "search."
She sounded genuinely shocked when I said "Thank you, I feel it is only fair to inform you that you are in breach of the Telecommunications (Data Protection & Privacy) Regulations 1999 and as such have just been reported to the TPS".
You did put a cover sheet on your TPS Report, right? Didn't you get that memo?
i just have my thai hooker click ACCEPT for me. she's under 18 and not even a citizen, so i'm pretty much in the clear.
not so. she's an agent to whom you have given actual authority. you--as the principal--are therefore responsible for any contracts that she enters on your behalf by clicking "accept."
i know the parent was just joking, but it's amazing how many people think that getting around a contract is just that simple.
Not quite. I haven't R'd the FA yet, but I'm betting the cases were dismissed because the plantiffs "Lacked Standing." That's a legal term for "nobody's done anything wrong to you, so get out of my courtroom."
I'll add another "not quite." Although mootness is sometimes thought of as the requirement that the plaintiff maintain standing throughtout the course of the litigation, mootness really goes to whether the court's resolution of the claim in the plaintiff's favor will provide effective relief. Because the copyright owners have entered into a covenant not to sue, a declaratory judgment in the plaintiffs' favor does nothing.
It's one of the more frustrating aspects of our legal system (to me, anyway) -- the inability to pre-emptively decide issues. Instead, you have to wait until you're actually *sued* for something, and then, if the plantiff drops the suit, you may have to go through it all again in the future the next time they decide to rattle your chain.
And another "not quite." In the criminal context, under Steffel v. Thompson, if there is no state prosecution pending against you, you may always seek a declaration in federal court that one would be unconstitutional if so brought. But, the plaintiff must demonstrate that there is a "genuine threat of enforcement." I'm pretty sure that declaratory judgments are also available in the civil context as the court did not question the propriety of declaratory relief but rather the procedural requirement of (lack of) mootness.
Is there an express agreement that AARs will not reduce price beyond a stated minimum or is it just "understood" that Apple will not renew AAR contracts with price cutters?
Re:That's how discovery works in litigation
on
SCOrched Earth
·
· Score: 4, Informative
Say I am a fizzy drinks manufacturer. I want to know what Coca-cola's secret formula is. I start a case against them saying that they've copied my formula, and that they have to give me their formula so I can prove it.
Ah, then you'll want to read Coca-Cola Bottling Co. of Shreveport, Inc. v. Coca-Cola Co., 107 F.R.D. 288 (D. Del. 1985). There, the court held that Coca-Cola's secret formula was not immune to discovery once the plaintiffs had made a showing of "relevancy" and "necessity." Of course, this did not mean that Coke's secret would then become a matter of public record. Courts have the power to issue protective orders under Federal Rule of Civil Procedure 26(c) to limit the dissemination of information procured through discovery. The court deferred ruling on the scope of such a protective order until the parties had time to consider and negotiate the issue.
The penalties for downloading music run about 99c/file (You just have to reimburse them for the cost of buying), under Title 17, Chapter 5, S504, b.
Incomplete. You must've missed the very next subsection, which clearly provides: [T]he copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just.
I have absolutely no legal background (that statement goes way beyond IANAL), but I'm sort of thinking that benefitting from a crime must be illegal.
Usually, the perpetrator cannot benefit from his own crime. Thus, if an heir apparent kills his intestate parent, slayer statutes will often prevent the killer from receiving his parent's estate.
The right of the Federal government to tax its citizens was added.
The federal government does not have "rights." It has powers. Those powers come at the expense of rights otherwise reserved by the people. See U.S. Const. amend. X.
An employer firing someone for their (non-business related, private) speech may not be a free speech issue from a constitutional perspective, but it certainly would be a free speech issue from a general perspective.
So, I suppose you believe that anytime your speech has direct adverse consequences, there are "general" free speech issues.
Under that logic, shall I tell my girlfriend that she ought not get mad at me for telling her, "yes, honey, your ass does look fat in those jeans," because her reaction would chill my "general" free speech?
All of that takes time, money, and much much effort. But hey, it's ok because you can site some reference in the original constitution (Where I'm quite sure the founder fathers envisioned it that way.) to where that makes it so.
Here's the thing: Legislatures don't typically pass blatantly unconstitutional laws (folks in the peanut gallery please save your PATRIOT Act jokes). So, courts rely on sufficiently interested parties (and injury in-fact is usually a good proxy for interest) to provide them with perspective on the practical scope and effects of the legislation.
When a court acts issues an advisory opinion, there is great danger that not only will the court lack this proper perspective but also that it will substitute its policy judgments for that of the democratically elected legislature. The separation of powers implications are hopefully apparent.
Are these concerns worth the extra time and money? Reasonable minds may differ, but I tend to think so.
The only reason the supreme court doesn't want to speak out, is to avoid individual justices being labeled as "Liberal" and thereby attracting the attention of the conservative horde. Who would demand the resignation of the justice, and if they were to resign, everybody would be royally screwed. The only difference between Roe V. Wade being the law of the land, and Bush's brand of christian (psychotic) conservatism is ONE VOTE on the supreme court.
Conservatives (and liberals) can "demand the resignation of the justice" all they want, but there is only one constitutional procedure for removing Justices from the Supreme Court, and it is quite onerous. See Art. II, sec. 4.
As for your other assertion that "one vote" is all that is needed to overturn Roe, perhaps you'd like to vote-count Planned Parenthood v. Casey, and rethink your position.
In my post I specificly mentioned the Bill of Rights. If that does not have something to do with, "The province of the court is solely to decide the rights of individuals." (Marbury v. Madison.) then I don't know what does.
The Court's statement signifies that it only settles disputes that arise between parties (i.e., individuals in most circumstances). These disputes have to satisfy the "case or controversy" requirement of Article III of the Constitution. To establish a case or controversy the plaintiff must have standing, which requires a (1) concrete, particular (as opposed to generalized) injury, (2) caused by the defendant's actions, (3) that can be redressed by favorable court adjudication.
With the foregoing established, the Supreme Court cannot issue advisory opinions because there are no sufficiently interested parties whose rights are to be decided and thus no "case or controversy."
How many laws would we have today if they were checked before they were put into action by the high court of the land.
I assume you are referring to laws passed in the United States. If so, it is a long-established principle of constitutional law that the Supreme Court (and the inferior federal courts) do not issue advisory opinions. "The province of the court is solely to decide the rights of individuals." Marbury v. Madison.
I'm not familiar with California civil procedure, but if it's similar to federal civil procedure, the next--and most important--step is to certify the "class." If the court certifies the class, it's Settlement City with millions to go to the attorneys and coupons (or some other pittance) to go to the class. If not, game over for the plaintiffs who will then have to pay some serious attorney's fees.
Consider, for example, how the DOJ let Microsoft off the hook, even though it had won critical fact-findings at the district court.
Finally, consider how the DOJ and the states lost vital legal arguments at the Court of Appeals. See, e.g., the Court's discussion of the applicable legal standard to apply with respect to the integration of IE into Windows. See also, the Court's refusal to allow the government plaintiffs to redefine the relevant product market in their attempted monopolization charge with respect to IE.
Then consider whether the settlement was "let[ting] Microsoft off the hook," or just dealing with the reality of the situation.
Slashdot Mirror
So if you act without thinking you shouldn't be held accountable?
Or at least as accountable. Thus, the distinction between voluntary manslaughter and premeditated murder. It's the same act with the same result, but with a different mental state.
This is a load of bull. Gore DID win the majority vote
No, he did not. Gore won a plurality of the popular vote, but no candidate won a majority. In fact, no presidential candidate has won a majority of the popular vote since 1988.
People forget that the constitution says nothing about foreign affairs
.
Not true. The Constitution does speak to who holds power when it comes to foreign affairs.
Art. I, sec. 8, cl. 3, 5: The Congress shall have Power To regulate Commerce with foreign Nations, To coin Money, regulate the Value thereof, and of foreign Coin
Art. I, sec. 9, cl. 8: [N]o Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.
Art. I, sec. 10: No State shall, without the Consent of Congress . . . enter into any Agreement or Compact with another State, or with a foreign Power . . .
Art. II, sec. 2, cl. 2: [The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls . . . .
Not like that at all. Criminal is different than civil. You have to be in the same state in most cases to collect on a civil judgment. If you're not, it's a huge pain in the ass. All this guy has to do is move out of the state and keep all of his assets out of the state. In most states, in 10 years or so, the judgment will be automatically cancelled unless the winner refiles to continue.
A huge pain in the ass? Yes, the plaintiff gets the judgment in California. But then he goes to a New York court with a certified copy of his California judgment and then -- by virtue of the Constitution's Full Faith and Credit Clause -- the New York court issues a writ of attachment allowing the plaintiff to levy on defendant's New York property. It's an extra step, but it doesn't make the defendant judgment-proof.
Herein lies, I'd argue, at least one reason behind the 4th Amendment to the U.S. Constitution. It basically says to the government, "If you don't have a reason to be looking at John Q. Public, you shouldn't be looking at John Q. Public." These projects constitute a massive fishing expedition, and we're all suspect.
I appreciate the rationale behind your argument, but it is legally wrong. The Fourth Amendment says that the government may not conduct warrantless searches (except where obtaining a warrant first would be unreasonable). Of course, the antecedent question is, "Has there been a search?" And the Supreme Court has held that there is no "search" if you do not have a reasonable expectation of privacy (thus, a search of the garbage cans you leave out for collection is not really a "search" for Fourth Amendment purposes). So, as to information readily available to the John Q. Public, you have no reasonable expectation of privacy, and therefore the government may search it without running afoul of the Fourth Amendment because -- as a legal matter -- there is no "search."
...and yet I can be sued when a burglar hurts himself on my property.
not really. you may have a duty to avoid willful, wanton conduct (in some jurisdictions), but generally you owe no duty of care to trespassers.
She sounded genuinely shocked when I said "Thank you, I feel it is only fair to inform you that you are in breach of the Telecommunications (Data Protection & Privacy) Regulations 1999 and as such have just been reported to the TPS".
You did put a cover sheet on your TPS Report, right? Didn't you get that memo?
i just have my thai hooker click ACCEPT for me. she's under 18 and not even a citizen, so i'm pretty much in the clear.
not so. she's an agent to whom you have given actual authority. you--as the principal--are therefore responsible for any contracts that she enters on your behalf by clicking "accept."
i know the parent was just joking, but it's amazing how many people think that getting around a contract is just that simple.
Not quite. I haven't R'd the FA yet, but I'm betting the cases were dismissed because the plantiffs "Lacked Standing." That's a legal term for "nobody's done anything wrong to you, so get out of my courtroom."
I'll add another "not quite." Although mootness is sometimes thought of as the requirement that the plaintiff maintain standing throughtout the course of the litigation, mootness really goes to whether the court's resolution of the claim in the plaintiff's favor will provide effective relief. Because the copyright owners have entered into a covenant not to sue, a declaratory judgment in the plaintiffs' favor does nothing.
It's one of the more frustrating aspects of our legal system (to me, anyway) -- the inability to pre-emptively decide issues. Instead, you have to wait until you're actually *sued* for something, and then, if the plantiff drops the suit, you may have to go through it all again in the future the next time they decide to rattle your chain.
And another "not quite." In the criminal context, under Steffel v. Thompson, if there is no state prosecution pending against you, you may always seek a declaration in federal court that one would be unconstitutional if so brought. But, the plaintiff must demonstrate that there is a "genuine threat of enforcement." I'm pretty sure that declaratory judgments are also available in the civil context as the court did not question the propriety of declaratory relief but rather the procedural requirement of (lack of) mootness.
Is there an express agreement that AARs will not reduce price beyond a stated minimum or is it just "understood" that Apple will not renew AAR contracts with price cutters?
Say I am a fizzy drinks manufacturer. I want to know what Coca-cola's secret formula is. I start a case against them saying that they've copied my formula, and that they have to give me their formula so I can prove it.
Ah, then you'll want to read Coca-Cola Bottling Co. of Shreveport, Inc. v. Coca-Cola Co., 107 F.R.D. 288 (D. Del. 1985). There, the court held that Coca-Cola's secret formula was not immune to discovery once the plaintiffs had made a showing of "relevancy" and "necessity." Of course, this did not mean that Coke's secret would then become a matter of public record. Courts have the power to issue protective orders under Federal Rule of Civil Procedure 26(c) to limit the dissemination of information procured through discovery. The court deferred ruling on the scope of such a protective order until the parties had time to consider and negotiate the issue.
Check out 17 U.S.C. 504(c)(1). Therein lies the answer.
The penalties for downloading music run about 99c/file (You just have to reimburse them for the cost of buying), under Title 17, Chapter 5, S504, b.
Incomplete. You must've missed the very next subsection, which clearly provides: [T]he copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just.
I have absolutely no legal background (that statement goes way beyond IANAL), but I'm sort of thinking that benefitting from a crime must be illegal.
Usually, the perpetrator cannot benefit from his own crime. Thus, if an heir apparent kills his intestate parent, slayer statutes will often prevent the killer from receiving his parent's estate.
I seem to recall from his days as senator from Michigan that he does go by Spence quite often.
The right of the Federal government to tax its citizens was added.
The federal government does not have "rights." It has powers. Those powers come at the expense of rights otherwise reserved by the people. See U.S. Const. amend. X.
An employer firing someone for their (non-business related, private) speech may not be a free speech issue from a constitutional perspective, but it certainly would be a free speech issue from a general perspective.
So, I suppose you believe that anytime your speech has direct adverse consequences, there are "general" free speech issues.
Under that logic, shall I tell my girlfriend that she ought not get mad at me for telling her, "yes, honey, your ass does look fat in those jeans," because her reaction would chill my "general" free speech?
Actually, the briefs weren't drafted in crayon--that memorandum was just another example of Judge Kent bullying from the bench.
All of that takes time, money, and much much effort. But hey, it's ok because you can site some reference in the original constitution (Where I'm quite sure the founder fathers envisioned it that way.) to where that makes it so.
Here's the thing: Legislatures don't typically pass blatantly unconstitutional laws (folks in the peanut gallery please save your PATRIOT Act jokes). So, courts rely on sufficiently interested parties (and injury in-fact is usually a good proxy for interest) to provide them with perspective on the practical scope and effects of the legislation.
When a court acts issues an advisory opinion, there is great danger that not only will the court lack this proper perspective but also that it will substitute its policy judgments for that of the democratically elected legislature. The separation of powers implications are hopefully apparent.
Are these concerns worth the extra time and money? Reasonable minds may differ, but I tend to think so.
The only reason the supreme court doesn't want to speak out, is to avoid individual justices being labeled as "Liberal" and thereby attracting the attention of the conservative horde. Who would demand the resignation of the justice, and if they were to resign, everybody would be royally screwed. The only difference between Roe V. Wade being the law of the land, and Bush's brand of christian (psychotic) conservatism is ONE VOTE on the supreme court.
Conservatives (and liberals) can "demand the resignation of the justice" all they want, but there is only one constitutional procedure for removing Justices from the Supreme Court, and it is quite onerous. See Art. II, sec. 4.
As for your other assertion that "one vote" is all that is needed to overturn Roe, perhaps you'd like to vote-count Planned Parenthood v. Casey, and rethink your position.
In my post I specificly mentioned the Bill of Rights. If that does not have something to do with, "The province of the court is solely to decide the rights of individuals." (Marbury v. Madison.) then I don't know what does.
The Court's statement signifies that it only settles disputes that arise between parties (i.e., individuals in most circumstances). These disputes have to satisfy the "case or controversy" requirement of Article III of the Constitution. To establish a case or controversy the plaintiff must have standing, which requires a (1) concrete, particular (as opposed to generalized) injury, (2) caused by the defendant's actions, (3) that can be redressed by favorable court adjudication.
With the foregoing established, the Supreme Court cannot issue advisory opinions because there are no sufficiently interested parties whose rights are to be decided and thus no "case or controversy."
How many laws would we have today if they were checked before they were put into action by the high court of the land.
I assume you are referring to laws passed in the United States. If so, it is a long-established principle of constitutional law that the Supreme Court (and the inferior federal courts) do not issue advisory opinions. "The province of the court is solely to decide the rights of individuals." Marbury v. Madison.
I'm not familiar with California civil procedure, but if it's similar to federal civil procedure, the next--and most important--step is to certify the "class." If the court certifies the class, it's Settlement City with millions to go to the attorneys and coupons (or some other pittance) to go to the class. If not, game over for the plaintiffs who will then have to pay some serious attorney's fees.
Isn't it about time for some class action reform?
err, "finally" and "then" are transposed.
and i even used preview. so embarrassing.
Consider, for example, how the DOJ let Microsoft off the hook, even though it had won critical fact-findings at the district court.
Finally, consider how the DOJ and the states lost vital legal arguments at the Court of Appeals. See, e.g., the Court's discussion of the applicable legal standard to apply with respect to the integration of IE into Windows. See also, the Court's refusal to allow the government plaintiffs to redefine the relevant product market in their attempted monopolization charge with respect to IE.
Then consider whether the settlement was "let[ting] Microsoft off the hook," or just dealing with the reality of the situation.