No trespassing signs serve to put you on notice that you may be violating someone else's property rights. It does not effect a "screening" necessary to make a "private club" or a "secured" website for SCA protection.
Also, FYI: In states where intent to disposess is required in adverse posession (subjective test states), the PRESENCE of a "no trespassing sign" will allow the adverse posessor to sustain his claim of open, notorious and HOSTILE as a result of the sign. (Whereas without a no trespassing sign, in the same jurisdiction, the claim for quiet title would have failed.)
Your analogy has absolutely nothing at all to do with the 11th circuit's holding.
It's more akin to Dale than anything else. If you *say* you're a private club, but you don't screen applicants in any way shape or form, you are not a private club. Since his website has a "screening process" that is a mere formality, it does not qualify for SCA protection.
Seriously, the number of non-lawyers sounding off in the last three days has gotten on my nerves; there's a lot of misinformation on slashdot (surprise surprise) but it always seems to be worse when it involves the law...
1) In a deposition, you'd have objections raised, but they'd probably be told "answer him anyway, even if he's being rude."
2) In a courtroom, you'd probably be called to sidebar.
3) What makes you think the goal of testimony in a courtroom is to uncover truth? Many times, the goal of testimony is to judge the credibility of a witness, to view the emotional impact, or just to let someone "tell their story." There are process values that have little to do with "truth" -- if all the courts cared about was "truth" we'd have no rules of evidence, no motions to supress, and no inadmissability concerns.
4) Leading questions are permitted for hostile witnesses.
I see this is the second thread in which you've made quasi-legal [I say quasi not out of disrespect, but because you're making arguments that arent grounded in any concrete theory of law] conclusions/statements that I've responded to....if you'd like to chat some time about our legal system, I'd be more than happy to. I propose non-lawyers should strive to keep from making legal conclusions without a proper foundation in the US legal system; many "common sense" notions are wrong. (The American legal system is more focused on rights than it is on truth; the inquisitorial systems used in places like Germany is far more focused on truth.)
Have you studied the law at all? (I mean this in the non-facetious, honest way). 15 U.S. 178 (1817), among other things. What makes you say that the brokers can only take them to arbitration? And if that were true, and if the arbitrators ALWAYS side with mom and pop investor, and the brokers could make a strong showing of that, they could easily have the award overturned in federal court. "We had a webpage explaining the risks" will be enough -- read any of the e-Commerce cases in a first year Contracts textbook. (Gateway, Step-Saver, etc)
i keep tossing everyone at 15 U.S. 178 (1817). (Laidlaw v Organ) The number of people chiming their us $0.02 in this discussion with their personal view of contracts theory is astounding. Vonage will win every single time. This is black letter contract law. Technically, the "purchaser" of the stock made the OFFER TO BUY -- and the underwriters made an acceptance. (Think acceptance by silence, massopoust whip company.) Either under unilateral contract theory or otherwise, vonage wins every time. This entire discussion would be relegated to a footnote in a casebook.
Your comparison to a durable good is a bad analogy and just wrong. A better comparison is to Wheat futures or Tobacco futures. If you agree (in writing) to take delivery of 1000 bushels of wheat tomorrow at 50 cents a bushel and tomorrow morning the price of wheat drops to 10 cents a bushel, you can either a) buy all 1000 bushels of my wheat at 50 cents a bushel, b) have the court order you to pay me 40 * 1000 cents (the difference between the price you agreed to and the market price). This is black letter contract law. You lose. Period. Any US jurisdiction.
For one of the earliest examples of this, look at Laidlaw v Organ 15 U.S. 178 (1817) in which the price differential was caused by the US signing the treaty of Ghent -- which one party knew about and the other did not. The Supreme Court's ruling? Tough.
First, see my earlier post. Laidlaw v Organ 15 U.S. 178 (1817). You purchase wheat futures, the price of wheat goes down, you get screwed. The US signs the treaty of ghent, you also get screwed.
Mutually beneficial is ex ante vs ex post. Ex ante, there was no way of knowing: you made a gamble and lost.
Finally, your "backing out of the car sale" is: You lose.
Neri v. Retail Marine: If you're backing out of a car purchase the car dealership will get the expected profits without having to mitigate damages since for the purposes of "selling cars" they have a virtually unlimited supply. (Under the UCC, this is probably the case as well)
Written vs. Oral: Price of the car, length of time between agreement/sale and any estoppel claims will determine if you can "get out" via the Statute of Frauds. Most likely not.
YANAL. You are also wrong. The mutually beneficial requirement is ex ante, not ex post. If you don't know what ex ante and ex post mean in this context, please don't post about these things anymore. (Then buy a copy of Barnett's Contracts or Williston's Contracts Treatise and actually learn something.)
If you buy wheat futures and the price of wheat goes down, you're screwed.
Even if the US Government signs the Treaty of Ghent and the other guy doesn't tell you about it, you're screwed! [Laidlaw v. Organ, 15 U.S. 178 (1817)]
I'm working in a building near the apple store; let me tell you, the elevator is not that big of a deal. The staircase is so short, it's very surprising that people use the elevator (save, obviously, the disabled.) Walking down the steps is part of the experience:)
His concern is not the American public; it's garnering support among academia. The question as framed was: "Can ID win the debate?" The answer was "No, because xyz." The debate is not with the american public -- it is among legal scholars and academics. [And no, there aren't sufficient numbers in the american populace to pass constitutional amendments for such things; so let's not even go there.]
I read the slip opinion. Don't read the Oyez summary, read the slip opinion. Ceballos was Deputy DISTRICT ATTORNEY (then promoted to be supervising 3 deputy district attorneys). He is *literally* an officer of the court. The "specific legal definition" of officer of the court applies to Ceballos. You are incorrect; if a Deputy DA is aware of a constitutional violation (a substantive due process violation) on which the prosecution's case is predicated, he is under an ethical obligation to disclose such. Subject to BRADY v MARYLAND (et seq) -- Ceballos was obligated to turn information over to the defense. Read the 9th circuit opinion (by Reinhardt of all people.) The 9th circuit makes it pretty clear: The warrant was pretty easily seen to be based on a lie -- the suppression motion was denied on other grounds) This is not just any paper pusher; Ceballos was an attorney working on the case. There is no such thing as a "legal responsibiltiy not to disclose ifnormation" -- there are certain types of attorney client privilege, but attorneys MUST report fraud, and cannot knowingly engage in fradulent transactions. Technically, a prosecutor that knowingly (with intent) used evidence gathered under a warrant that the prosecutor knew to be in violation of the fourth amendment could be disbarred (depending on the phrasing of the local bar's ethical conduct standards.) ANY attorney in a criminal case with knowledge (or belief) of a constitutional procedural defect is under obligation to report it.
Conceptually, an improper application could have had transposed numbers in a street address or an extra letter in a person's name.
No. This is just flat out wrong. For a warrant to be facially invalid the problems would have to be substantive, not procedural. Do you know anything at all about substantive criminal law, or are you just making wild back-of-the-envelope speculation and "reasonableness" assumptions?
One of the problems here is that Ceballos framed the issue improperly; rather than arguing his own free speech rights, he should have been arguing the chilling effect on self-policing constitutional violations. (And with that argument, he might have gotten a nod from Scalia)
As the 9th circuit points out, Ceballos made an allegation of wrongdoing -- that *is* constitutionally protected and continues to be litigated. The *ONLY* thing at issue in THIS case is the memo he wrote to file; what is at issue in this case is retaliation for using "proper channels." [So you realize: As a result of this holding, Ceballos is not protected if he writes an internal memo saying "we're screwing up, and here's why." If he goes to a newspaper and writes an op ed piece that says "You know, I think our DA's office is screwing up big time, and we need to fix it..." he *IS* protected. and that's whats so ridiculous]
As an officer of the court, he was under an ethical duty to inform the defense (and be called as a witness) to the existence of a facially invalid warrant. The trial court judge denied the motion to suppress on other grounds.
The law students are already picking it apart. It's "pretty bad" but only for one class of folks. (Read the dissent's hypo about which school employees are protected and which ones are not)
Did you read the dissent? The suppression motion was denied on other grounds -- i.e. the warrant as originally issued was facially invalid and Ceballos was right. Ceballos was correct... the warrant *was* bad. So it does come back to whistleblowing. Part of his job as an officer of the court is to whistleblow. That's why (as the dissent points out) Ceballos told his superiors he was ethically bound to produce the document to the defense -- because he was aware of fourth amendment violations.
Read the opinion -- the entire opinon. The motion to suppress was denied on/other/ grounds. The warrant was facially invalid for the reasons he cited in his memo. The judge (in what some would call "judicial activism") denied the suppression motion based on other evidence in the record NOT in the warrant affidavit.
Basically, he blew the whistle that the government was using illegal tactics to catch a bad guy. The trial judge threw out the whistleblower by looking at the bad guy and saying "yeah, he's bad, so whatever." At the end of the day, this wasn't an accusatory memo. The majority glosses over the facts because they need to use the rhetoric. One of O'Connor's "totality of the circumstances" eleven pronged tests would have helped nicely here.
He was ethically bound to report his belief and information that the warrant was facially invalid. There is a section in the dissent that replays the back-and-forth concerning the memo he would produce. (Ultimately his redacted memo.) As an officer of the court, he could not let abuse of process (i.e. a falsely obtained warrant) stand.
Read Kyllo. (Not Kelo, which is the New London case you cited) Then get back to me when you understand what "conservative" and "liberal" mean in the supreme court context. Fourth and Fifth amendment law are good examples of where everything you know about "conservative" and "liberal" get shot to hell. (More or less: Scalia generally votes to free the felon, Ginsburg generally votes to lock them up.)
There is nothing at all "funny" about the eminent domain rulings if you understand where the "conservative" moniker comes from.
For 200 years, "social" and "constitutional" conservatives were basically one and the same. This stopped being the case 50 or so years ago, and has only grown profoundly since Reagan. This is not a "no brainer" and one of the dissents hits the nail on the head: A teacher protesting hiring decisions in a school would be protected, but a school HR employee protesting the same decisions would not be.
The high level of intelligence, the possibility of Tay-Sachs. I've loved your post for years. This, however, is the clincher that mandates I friend you.
The towers weren't hit by 707s. The amount of fuel they carried was substantially less, and their size substantially smaller. Not only is your analogy a straw man argument, it's a little offensive to those that died. As a life long new yorker that lost friends on 9/11, I'm rather pissed off that you're attributing their deaths to a "bug."
Please don't compare the poor understandings of aerodynamics and resonance in the early 20th century to one of the more tragic (and deliberate) events of the 21st. No one died on Galloping Gertie. I went to a wedding on Sept 14th 2001 in Manhattan with empty chairs.
Also, small-government leftists only started existing in the last 50 years. Small-government righties are against big government on a process idea - they don't like big govt for the sake of big govt. Small-govt lefties dont like the SUBSTANCE -- i.e. the nsa wiretapping, etc.
This is the issue at hand; the general populace does not understand the "intellectual heart of conservativism." Reagan may have made "government hating" popular, but the rationale behind why will probably never be understood. It was all well and good to say, "Alcohol, Tobacco and Firearms should be a convenience store, not a Federal Bureau" to this group of individuals, but "DOMA is probably unconstitutional" would shock the conscience. (Meanwhile, the more educated among them, notably the Family Research Council, advocate amending the US Constitution to define marriage as one between a man and a woman, because they realize that short of a constitutional amendment, the Federal government really has bullocks to do with marriage.)
When I said "conservatives" I meant social ones -- not actual federalists. My apologies. For two hundred years plus, they meant the same thing, but that is no longer the case. (Ok, there was a brief period around the time of Loving v Virginia in which it was similar, but that's pushing it.)
I don't think most people understand that for 200+ years of this country's history, "social conservatives" and "constitutional conservatives" were on the same page. Although Regan popularized "government hating" -- it's the left that has perfected it as of late. (i.e. anti-stateism) Quite simply put, the "conservatives" that BushCo have put on the court are far more "Federalist" than "Republican" -- this is why some of the justices have drifted towards the left (socially) -- because once sitting on the Supreme Court, they are moved by principles of equity to do the right then when possible -- and often to the surprise of those that supported them. Many in the Republican base were VERY upset with John Roberts for his "freedom-to-drink-hallucenogenic-tea" opinion. It was a ridiculously clear-cut Freedom of Religious Expression (Freedom of Religion) case.
Not so sure on Alito yet, but with Roberts, I assure you the "right" got far more (less) than they bargained for.
Right, but the problem is more akin to this: Polo is a demanding sport. Riding horses is taxing and requires concentration and effort. Like all swimmers, Polo players must be able to hold their breath.
"intellectual property" does not confer a "bundle of rights" in the way that traditional "Lockean" property does. A copyright is not property. (You can have a property interest in a copyright itself, i.e. you can sell the right; but copyright itself is not "property" in the traditional self. It's a right.)
A good example: The traditional "fair use" provisions mandate open access to most (if not all) copyrighted material for educational purposes. To have such access to traditional property would require a public easement, which would be a per se taking and therefore compensable under the Fifth amendment. The right to exclude from "copyright" does not exist in an unfettered way the way it does for your home.
Slashdot Mirror
No trespassing signs serve to put you on notice that you may be violating someone else's property rights. It does not effect a "screening" necessary to make a "private club" or a "secured" website for SCA protection.
Also, FYI: In states where intent to disposess is required in adverse posession (subjective test states), the PRESENCE of a "no trespassing sign" will allow the adverse posessor to sustain his claim of open, notorious and HOSTILE as a result of the sign. (Whereas without a no trespassing sign, in the same jurisdiction, the claim for quiet title would have failed.)
Your analogy has absolutely nothing at all to do with the 11th circuit's holding.
It's more akin to Dale than anything else. If you *say* you're a private club, but you don't screen applicants in any way shape or form, you are not a private club. Since his website has a "screening process" that is a mere formality, it does not qualify for SCA protection.
Seriously, the number of non-lawyers sounding off in the last three days has gotten on my nerves; there's a lot of misinformation on slashdot (surprise surprise) but it always seems to be worse when it involves the law...
party on, wayne.
A few things:
1) In a deposition, you'd have objections raised, but they'd probably be told "answer him anyway, even if he's being rude."
2) In a courtroom, you'd probably be called to sidebar.
3) What makes you think the goal of testimony in a courtroom is to uncover truth? Many times, the goal of testimony is to judge the credibility of a witness, to view the emotional impact, or just to let someone "tell their story." There are process values that have little to do with "truth" -- if all the courts cared about was "truth" we'd have no rules of evidence, no motions to supress, and no inadmissability concerns.
4) Leading questions are permitted for hostile witnesses.
I see this is the second thread in which you've made quasi-legal [I say quasi not out of disrespect, but because you're making arguments that arent grounded in any concrete theory of law] conclusions/statements that I've responded to....if you'd like to chat some time about our legal system, I'd be more than happy to. I propose non-lawyers should strive to keep from making legal conclusions without a proper foundation in the US legal system; many "common sense" notions are wrong. (The American legal system is more focused on rights than it is on truth; the inquisitorial systems used in places like Germany is far more focused on truth.)
Have you studied the law at all? (I mean this in the non-facetious, honest way). 15 U.S. 178 (1817), among other things. What makes you say that the brokers can only take them to arbitration? And if that were true, and if the arbitrators ALWAYS side with mom and pop investor, and the brokers could make a strong showing of that, they could easily have the award overturned in federal court. "We had a webpage explaining the risks" will be enough -- read any of the e-Commerce cases in a first year Contracts textbook. (Gateway, Step-Saver, etc)
i keep tossing everyone at 15 U.S. 178 (1817). (Laidlaw v Organ) The number of people chiming their us $0.02 in this discussion with their personal view of contracts theory is astounding. Vonage will win every single time. This is black letter contract law. Technically, the "purchaser" of the stock made the OFFER TO BUY -- and the underwriters made an acceptance. (Think acceptance by silence, massopoust whip company.) Either under unilateral contract theory or otherwise, vonage wins every time. This entire discussion would be relegated to a footnote in a casebook.
Your comparison to a durable good is a bad analogy and just wrong. A better comparison is to Wheat futures or Tobacco futures. If you agree (in writing) to take delivery of 1000 bushels of wheat tomorrow at 50 cents a bushel and tomorrow morning the price of wheat drops to 10 cents a bushel, you can either a) buy all 1000 bushels of my wheat at 50 cents a bushel, b) have the court order you to pay me 40 * 1000 cents (the difference between the price you agreed to and the market price). This is black letter contract law. You lose. Period. Any US jurisdiction.
For one of the earliest examples of this, look at Laidlaw v Organ 15 U.S. 178 (1817) in which the price differential was caused by the US signing the treaty of Ghent -- which one party knew about and the other did not. The Supreme Court's ruling? Tough.
First, see my earlier post. Laidlaw v Organ 15 U.S. 178 (1817). You purchase wheat futures, the price of wheat goes down, you get screwed. The US signs the treaty of ghent, you also get screwed.
Mutually beneficial is ex ante vs ex post. Ex ante, there was no way of knowing: you made a gamble and lost.
Finally, your "backing out of the car sale" is: You lose.
Neri v. Retail Marine: If you're backing out of a car purchase the car dealership will get the expected profits without having to mitigate damages since for the purposes of "selling cars" they have a virtually unlimited supply. (Under the UCC, this is probably the case as well)
Written vs. Oral: Price of the car, length of time between agreement/sale and any estoppel claims will determine if you can "get out" via the Statute of Frauds. Most likely not.
YANAL. You are also wrong. The mutually beneficial requirement is ex ante, not ex post. If you don't know what ex ante and ex post mean in this context, please don't post about these things anymore. (Then buy a copy of Barnett's Contracts or Williston's Contracts Treatise and actually learn something.)
If you buy wheat futures and the price of wheat goes down, you're screwed.
Even if the US Government signs the Treaty of Ghent and the other guy doesn't tell you about it, you're screwed! [Laidlaw v. Organ, 15 U.S. 178 (1817)]
I'm working in a building near the apple store; let me tell you, the elevator is not that big of a deal. The staircase is so short, it's very surprising that people use the elevator (save, obviously, the disabled.) Walking down the steps is part of the experience :)
His concern is not the American public; it's garnering support among academia. The question as framed was: "Can ID win the debate?" The answer was "No, because xyz." The debate is not with the american public -- it is among legal scholars and academics. [And no, there aren't sufficient numbers in the american populace to pass constitutional amendments for such things; so let's not even go there.]
As an officer of the court, he was under an ethical duty to inform the defense (and be called as a witness) to the existence of a facially invalid warrant. The trial court judge denied the motion to suppress on other grounds.
The law students are already picking it apart. It's "pretty bad" but only for one class of folks. (Read the dissent's hypo about which school employees are protected and which ones are not)
For another take on ID, check out:
p ring/ask.php
http://www.law.harvard.edu/alumni/bulletin/2006/s
(An Evangelical Christian sounding off about the ID/evolution debate and the problems for evangelicals)
Did you read the dissent? The suppression motion was denied on other grounds -- i.e. the warrant as originally issued was facially invalid and Ceballos was right. Ceballos was correct ... the warrant *was* bad. So it does come back to whistleblowing. Part of his job as an officer of the court is to whistleblow. That's why (as the dissent points out) Ceballos told his superiors he was ethically bound to produce the document to the defense -- because he was aware of fourth amendment violations.
Read the opinion -- the entire opinon. The motion to suppress was denied on /other/ grounds. The warrant was facially invalid for the reasons he cited in his memo. The judge (in what some would call "judicial activism") denied the suppression motion based on other evidence in the record NOT in the warrant affidavit.
Basically, he blew the whistle that the government was using illegal tactics to catch a bad guy. The trial judge threw out the whistleblower by looking at the bad guy and saying "yeah, he's bad, so whatever." At the end of the day, this wasn't an accusatory memo. The majority glosses over the facts because they need to use the rhetoric. One of O'Connor's "totality of the circumstances" eleven pronged tests would have helped nicely here.
He was ethically bound to report his belief and information that the warrant was facially invalid. There is a section in the dissent that replays the back-and-forth concerning the memo he would produce. (Ultimately his redacted memo.) As an officer of the court, he could not let abuse of process (i.e. a falsely obtained warrant) stand.
Read Kyllo. (Not Kelo, which is the New London case you cited) Then get back to me when you understand what "conservative" and "liberal" mean in the supreme court context. Fourth and Fifth amendment law are good examples of where everything you know about "conservative" and "liberal" get shot to hell. (More or less: Scalia generally votes to free the felon, Ginsburg generally votes to lock them up.)
There is nothing at all "funny" about the eminent domain rulings if you understand where the "conservative" moniker comes from.
For 200 years, "social" and "constitutional" conservatives were basically one and the same. This stopped being the case 50 or so years ago, and has only grown profoundly since Reagan. This is not a "no brainer" and one of the dissents hits the nail on the head: A teacher protesting hiring decisions in a school would be protected, but a school HR employee protesting the same decisions would not be.
The high level of intelligence, the possibility of Tay-Sachs. I've loved your post for years. This, however, is the clincher that mandates I friend you.
Hoboken.
Priceless.
The towers weren't hit by 707s. The amount of fuel they carried was substantially less, and their size substantially smaller. Not only is your analogy a straw man argument, it's a little offensive to those that died. As a life long new yorker that lost friends on 9/11, I'm rather pissed off that you're attributing their deaths to a "bug."
Please don't compare the poor understandings of aerodynamics and resonance in the early 20th century to one of the more tragic (and deliberate) events of the 21st. No one died on Galloping Gertie. I went to a wedding on Sept 14th 2001 in Manhattan with empty chairs.
Also, small-government leftists only started existing in the last 50 years. Small-government righties are against big government on a process idea - they don't like big govt for the sake of big govt. Small-govt lefties dont like the SUBSTANCE -- i.e. the nsa wiretapping, etc.
This is the issue at hand; the general populace does not understand the "intellectual heart of conservativism." Reagan may have made "government hating" popular, but the rationale behind why will probably never be understood. It was all well and good to say, "Alcohol, Tobacco and Firearms should be a convenience store, not a Federal Bureau" to this group of individuals, but "DOMA is probably unconstitutional" would shock the conscience. (Meanwhile, the more educated among them, notably the Family Research Council, advocate amending the US Constitution to define marriage as one between a man and a woman, because they realize that short of a constitutional amendment, the Federal government really has bullocks to do with marriage.)
When I said "conservatives" I meant social ones -- not actual federalists. My apologies. For two hundred years plus, they meant the same thing, but that is no longer the case. (Ok, there was a brief period around the time of Loving v Virginia in which it was similar, but that's pushing it.)
I for one, am just fine with Roberts.
I don't think most people understand that for 200+ years of this country's history, "social conservatives" and "constitutional conservatives" were on the same page. Although Regan popularized "government hating" -- it's the left that has perfected it as of late. (i.e. anti-stateism) Quite simply put, the "conservatives" that BushCo have put on the court are far more "Federalist" than "Republican" -- this is why some of the justices have drifted towards the left (socially) -- because once sitting on the Supreme Court, they are moved by principles of equity to do the right then when possible -- and often to the surprise of those that supported them. Many in the Republican base were VERY upset with John Roberts for his "freedom-to-drink-hallucenogenic-tea" opinion. It was a ridiculously clear-cut Freedom of Religious Expression (Freedom of Religion) case.
Not so sure on Alito yet, but with Roberts, I assure you the "right" got far more (less) than they bargained for.
Right, but the problem is more akin to this: Polo is a demanding sport. Riding horses is taxing and requires concentration and effort. Like all swimmers, Polo players must be able to hold their breath.
"intellectual property" does not confer a "bundle of rights" in the way that traditional "Lockean" property does. A copyright is not property. (You can have a property interest in a copyright itself, i.e. you can sell the right; but copyright itself is not "property" in the traditional self. It's a right.)
A good example: The traditional "fair use" provisions mandate open access to most (if not all) copyrighted material for educational purposes. To have such access to traditional property would require a public easement, which would be a per se taking and therefore compensable under the Fifth amendment. The right to exclude from "copyright" does not exist in an unfettered way the way it does for your home.