Sentencing guidelines - which, by the way, are not mandatory - do nothing to erode the power of the judiciary. Defining the possible range of sentences for an offense is not distinct from defining the offense itself. The notion of a "crime" includes both the proscribed act and the related punishment. It is philosophically unsound to pretend that the idea of a judiciary includes sole control over sentencing, unless you're willing to embrace judges choosing to impose incredible sentences (e.g. death, for theft) when they believe it fair.
All legislation is the Legislature imposing its will upon the Judiciary; without Congress telling the American Judiciary what is legal or illegal, the Judiciary would have nothing to do.
The ABA did a better job controlling the supply of lawyers back before we lost a lawsuit which accused us of what was basically illegal monopoly/trust activities (it's a bit more complicated than that, though).
In short, the ABA had worked to prevent law schools from proliferating to the point it's at today (nearly two hundred law schools!) in order to keep the field from being glutted with unintelligent and uneducated lawyers. Once the ABA was denied the ability to restrict the number of law schools, every crappy school in the country wanted a law school. Law schools typically have enormous cost/benefit ratios, due to the limited start-up cost and high return on investment (i.e. profitability of alumni). While this remained true initially, the crappier schools popping up today are failing at that too, dragging their schools even further down.
You want fewer crappy lawyers? Lobby to allow the ABA to get back to its job of keeping those people out of our field.
My point was just that the terminology is oddly ambiguous: for example, is it still a law but merely unenforced due to being void, or does it actually cease to be a law?
I'm happy for you that you think "it must be considered void", but there is widespread, if not near-universal, dispute about how to regard laws deemed unconstitutional. Everyone agrees that we treat the law as if it never existed (except to preclude similar laws from being written), but legal scholars and philosophers debate the nature of such a "law" with astonishing regularity.
The discussion is entirely academic on this point, however; it is akin to asking whether an unjust law is actually a "law", i.e. whether the definition of "law" includes validity and justice (thus implying that unjust or invalid "laws" are actually not laws at all). I don't think we're disagreeing at all about the practical effect.
This is a decision by the Sixth Circuit Court of Appeals, i.e. the highest federal court in the Sixth Circuit before you reach the Supreme Court of the United States.
It declares this law to be unconstitutional due to overbreadth (to simplify quite a bit), which means that within the Sixth Circuit, this law is unenforceable.
The Supreme Court may then either hear the case (and decide whether or not to affirm on the merits), or it may decline to hear the case (thus not issuing a decision as to the merits).
However, Circuit Courts of Appeal are not binding on the district courts in other circuits (though they are heavily persuasive authority). Thus, the government may prosecute under this law in other circuits, and hope that the district courts there disagree with the Sixth Circuit. Eventually, other Circuit Courts of Appeal may hear this matter and issue their own decisions as to the validity of this law.
Typically, the Supreme Court refuses to hear issues like this until more than one Circuit has issued an opinion on the matter. Even then, they have historically preferred not to hear the issue unless the various Circuits disagree. However, if the Supreme Court rules that the law is unconstitutional, then it is no longer a law, throughout the nation.
As for a state regulating this: States are permitted to provide greater protection to rights, not lesser. Therefor, if a State attempted to regulate speech in a manner that violates the federal constitution, then that State attempt would be equally unconstitutional.
As a final odd point: the philosophical question of whether it is "a law" once it is deemed unconsitutional is actually an unclear point. You can find legal scholars/philosophers who will refer to laws deemed unconstitutional by SCOTUS as invalid, nullified, non-existent, etc.
While I'm not saying you're lying, I'm shocked: in the last week alone, I've seen a half-dozen magistrate R&Rs rejected and outright reversed.
Of course, magistrate rules are binding within their own courts, but you cannot apply a magistrate ruling to a normal district court; all you can do is refer to the district court having adopted the R&R. That's why a magistrate, on their own, is nothing: their power is fully dependent upon their district court agreeing.
Actually, this "court" doesn't set any precedent at all. Magistrate "judges" aren't actually judges: they're Article II employees, created by Congress, who serve at the whim of actual judges, i.e. Article III Judges.
Magistrate Judges cannot actually do anything: their entire power comes from their parent district court's approval.
Not to call you a liar outright, but there's a problem with your post: his comments on NPR state quite clearly he's going to RIT in the fall. Either you or he is lying. I know his real name, but I don't know yours. Logic dictates he gets a little more trust, so unless you can verify your story somehow, I'm going to have to say it's unlikely you're telling the truth.
The iphonesimfree.com hack is a software hack, but the one that has dominated the news (by a 17 year old Jersey kid), including NPR shows, etc. is a physical hack involving soldering.
Well, this is nothing new. Most "contracts" are just waiving the consumer's rights. On the other hand, I'm glad somebody finally called them on it, since this is so blatantly obvious.
Actually, 100% of contracts are a waiver of some rights by one or both parties. That's what a contract is: an exchange of negotiated consideration ("consideration" here is a legal term, meaning either detriment or benefit to one or both parties, depending on which jurisdiction you're in).
A few states have laws (often improperly referred to as Good Samaritan laws, e.g. the finale of Seinfeld) that require you to provide assistance to victims of crimes/torts. However, these are the gross minority.
Almost every state places absolutely no burden on anyone to help anyone else, unless they have a pre-existing duty (e.g. you're their caretaker, parent, etc.).
Well, I can only speak for sure about (a) Federal, (b) Common-law and (c) Florida, but while it's true in all three that blank contracts are void (not illegal, the distinction is important), it is not true that unilateral modifications are invalid in all cases.
In general, you're required to provide consideration (a term of art, meaning exchanged benefit/burden in some jurisdictions, but meaning either benefit OR burden in other jurisdictions) for modifications. However, it is permissible in general to allow the other party to modify the contract at some point in the future, within limits. It's a very difficult point to litigate (and I'm not familiar with a robust rule on the issue), and its dealt with on a case-by-case analysis.
As far as service contracts like this are concerned - and this is the same for cell phone companies, DSL, etc. - usually the clause looks like this: "service provider can modify the contract at any time, but such modifications will allow the user a window of [x] days to cancel their contract without penalty".
In other words, the service provider gets affirmation by each user when those users choose to not leave the service upon notice of the modification. This option to cancel early - i.e. to avoid liability for breach - is itself consideration, thus making the modification valid.
"If they cut off someone's Internet access before conviction, so be it. But if they go to court and they are NOT found guilty, don't you think the school may have a lawsuit on their hands if they fail to re-enable the student's access?"
Answer: no, not at all. The standards required for civil actions are uniformly less stringent than for criminal. For example, it is far more difficult to have Person A convicted of murdering Person B, than it is to show that A probably caused B's death and thus shouldn't inherit under B's will.
Moreover, the civil lawsuit by a copyright owner against a file-sharer simply will not involve a "not guilty" determination: this isn't a crime, it's a civil tort. The court will only determine liability, and so even if it finds no liability it will not definitely include any statement of innocence.
Wrong. If a contract contains a clause that reserves the right to modify without re-consent, its entirely possible for that clause (and thus the modifications) to be enforceable (depending on which state you're in). There is absolutely no such thing as a requirement that modifications be "fair": the fact that unconscionable clauses are invalid has nothing to do with fairness at all. The courts simply will not engage in debates about 'fairness' of the sort you're suggesting.
We'd have to look carefully at the U.Kansas TOS before making any such conclusions here.
Incorrect. When State actors (such as the University of Kansas, which is an aspect of the Kansas state government) acts to deprive you of rights, they must respect substantive due process (as opposed to procedural due process, which refers to the need for hearings, etc.). Substantive Due Process essentially protects against arbitrary government action.
However, the students are not a member of any protected class, and this behavior doesn't implicate any protected rights (e.g. religion). As such, its almost certainly true that Kansas need only show a rational relationship between its chosen process and the goals to be accomplished.
The article makes a simple, fundamental pair of mistakes that renders it pointless and redundant: (a) there is a difference between complaining about the transparency of so-called invasions of privacy and complaining about the actual invasions (he does only the former); and (b) there is a difference between keeping information private from the government as opposed to keeping it private from private individuals.
By neglecting these points, he just engages in intellectual puffery. He hasn't argued at all against the "I have nothing to hide" argument, because he hasn't even addressed it. Chicanery.
You're right, it's far more legitimate to sell non-sexual simulations (e.g. typical video games) than to sell sexual simulations. There is clearly something this guy should be ashamed of in the fact that his video games involve sex, whereas Epic's and Id's games don't.
And yes, I'm fully aware Second Life isn't really a game: my point is that the sex-simulators he's selling are, themselves, games.
Well, it should be obvious, but (a) what are the essential rights, and (b) how long-term can security be before it stops being "temporary"?
Re (a): I think we'd all agree on life, but what about speech (I think so), assembly (also true)? More difficulty, what about privacy? Our Founders didn't even think there needed to be a Constitutional right to privacy, mentioning it neither in the Constitution nor the Bill of rights. How about this "right to not be molested on a public street", is that an essential right? Or is it a liberty, granted at the whim of government, until it is no longer viable?
Re (b): Is anything that's not permanent temporary? If so, isn't the quote kind of meaningless? There's almost no such thing as "permanent security", because that only exists when you exterminate your enemies, or possess such overwhelming power that you can intercept any possible assault or invasion. More plausibly, all security is temporary because that's the human condition.
I find it disgusting how much the US government has invaded our actual rights - imprisoning people with Habeas, for example - but I also find it ridiculous how many people think that they're having an "essential right" violated by having to wait a little longer in line at the airport.
(1) We prohibit practicing the law without a license for precisely the same reason we prohibit plumbing or electrical wiring without a license: to protect people from those miscreants who would take advantage by providing sub-quality service. This is no different from requiring medical licenses. In fact the need to protect is greater: defective legal practice burdens the entire jurisdiction with legal costs, etc.
(2) Lawyers didn't lobby to get un-licensed legal practice a crime: it's been illegal under the common law since England to do the professions without a license. Various jurisdictions encoded the common law as Statute at various times out of momentum as much as anything else.
(3) Do you have this same concern - as I noted in (1) - about other licensed fields? Do you think it's unreasonable to requires licenses for plumbing, wiring, medicine, driving, etc.?
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This is nothing but shibboleth.
Sentencing guidelines - which, by the way, are not mandatory - do nothing to erode the power of the judiciary. Defining the possible range of sentences for an offense is not distinct from defining the offense itself. The notion of a "crime" includes both the proscribed act and the related punishment. It is philosophically unsound to pretend that the idea of a judiciary includes sole control over sentencing, unless you're willing to embrace judges choosing to impose incredible sentences (e.g. death, for theft) when they believe it fair.
All legislation is the Legislature imposing its will upon the Judiciary; without Congress telling the American Judiciary what is legal or illegal, the Judiciary would have nothing to do.
The ABA did a better job controlling the supply of lawyers back before we lost a lawsuit which accused us of what was basically illegal monopoly/trust activities (it's a bit more complicated than that, though).
In short, the ABA had worked to prevent law schools from proliferating to the point it's at today (nearly two hundred law schools!) in order to keep the field from being glutted with unintelligent and uneducated lawyers. Once the ABA was denied the ability to restrict the number of law schools, every crappy school in the country wanted a law school. Law schools typically have enormous cost/benefit ratios, due to the limited start-up cost and high return on investment (i.e. profitability of alumni). While this remained true initially, the crappier schools popping up today are failing at that too, dragging their schools even further down.
You want fewer crappy lawyers? Lobby to allow the ABA to get back to its job of keeping those people out of our field.
My point was just that the terminology is oddly ambiguous: for example, is it still a law but merely unenforced due to being void, or does it actually cease to be a law?
I'm happy for you that you think "it must be considered void", but there is widespread, if not near-universal, dispute about how to regard laws deemed unconstitutional. Everyone agrees that we treat the law as if it never existed (except to preclude similar laws from being written), but legal scholars and philosophers debate the nature of such a "law" with astonishing regularity.
The discussion is entirely academic on this point, however; it is akin to asking whether an unjust law is actually a "law", i.e. whether the definition of "law" includes validity and justice (thus implying that unjust or invalid "laws" are actually not laws at all). I don't think we're disagreeing at all about the practical effect.
So, did you just not read all the posts already on the page explaining that you've misunderstood the court's decision?
This is a decision by the Sixth Circuit Court of Appeals, i.e. the highest federal court in the Sixth Circuit before you reach the Supreme Court of the United States.
It declares this law to be unconstitutional due to overbreadth (to simplify quite a bit), which means that within the Sixth Circuit, this law is unenforceable.
The Supreme Court may then either hear the case (and decide whether or not to affirm on the merits), or it may decline to hear the case (thus not issuing a decision as to the merits).
However, Circuit Courts of Appeal are not binding on the district courts in other circuits (though they are heavily persuasive authority). Thus, the government may prosecute under this law in other circuits, and hope that the district courts there disagree with the Sixth Circuit. Eventually, other Circuit Courts of Appeal may hear this matter and issue their own decisions as to the validity of this law.
Typically, the Supreme Court refuses to hear issues like this until more than one Circuit has issued an opinion on the matter. Even then, they have historically preferred not to hear the issue unless the various Circuits disagree. However, if the Supreme Court rules that the law is unconstitutional, then it is no longer a law, throughout the nation.
As for a state regulating this: States are permitted to provide greater protection to rights, not lesser. Therefor, if a State attempted to regulate speech in a manner that violates the federal constitution, then that State attempt would be equally unconstitutional.
As a final odd point: the philosophical question of whether it is "a law" once it is deemed unconsitutional is actually an unclear point. You can find legal scholars/philosophers who will refer to laws deemed unconstitutional by SCOTUS as invalid, nullified, non-existent, etc.
While I'm not saying you're lying, I'm shocked: in the last week alone, I've seen a half-dozen magistrate R&Rs rejected and outright reversed.
Of course, magistrate rules are binding within their own courts, but you cannot apply a magistrate ruling to a normal district court; all you can do is refer to the district court having adopted the R&R. That's why a magistrate, on their own, is nothing: their power is fully dependent upon their district court agreeing.
Actually, this "court" doesn't set any precedent at all. Magistrate "judges" aren't actually judges: they're Article II employees, created by Congress, who serve at the whim of actual judges, i.e. Article III Judges.
Magistrate Judges cannot actually do anything: their entire power comes from their parent district court's approval.
Not to call you a liar outright, but there's a problem with your post: his comments on NPR state quite clearly he's going to RIT in the fall. Either you or he is lying. I know his real name, but I don't know yours. Logic dictates he gets a little more trust, so unless you can verify your story somehow, I'm going to have to say it's unlikely you're telling the truth.
The iphonesimfree.com hack is a software hack, but the one that has dominated the news (by a 17 year old Jersey kid), including NPR shows, etc. is a physical hack involving soldering.
Please provide a single example of a contract where neither party waives one of their rights.
Actually, 100% of contracts are a waiver of some rights by one or both parties. That's what a contract is: an exchange of negotiated consideration ("consideration" here is a legal term, meaning either detriment or benefit to one or both parties, depending on which jurisdiction you're in).
A few states have laws (often improperly referred to as Good Samaritan laws, e.g. the finale of Seinfeld) that require you to provide assistance to victims of crimes/torts. However, these are the gross minority.
Almost every state places absolutely no burden on anyone to help anyone else, unless they have a pre-existing duty (e.g. you're their caretaker, parent, etc.).
Well, I can only speak for sure about (a) Federal, (b) Common-law and (c) Florida, but while it's true in all three that blank contracts are void (not illegal, the distinction is important), it is not true that unilateral modifications are invalid in all cases.
In general, you're required to provide consideration (a term of art, meaning exchanged benefit/burden in some jurisdictions, but meaning either benefit OR burden in other jurisdictions) for modifications. However, it is permissible in general to allow the other party to modify the contract at some point in the future, within limits. It's a very difficult point to litigate (and I'm not familiar with a robust rule on the issue), and its dealt with on a case-by-case analysis.
As far as service contracts like this are concerned - and this is the same for cell phone companies, DSL, etc. - usually the clause looks like this: "service provider can modify the contract at any time, but such modifications will allow the user a window of [x] days to cancel their contract without penalty".
In other words, the service provider gets affirmation by each user when those users choose to not leave the service upon notice of the modification. This option to cancel early - i.e. to avoid liability for breach - is itself consideration, thus making the modification valid.
Plain and simple: almost definitely not, unless the contract provided for it.
Usually, these services have contractual provisions to boot the users for any reason the admins want.
"If they cut off someone's Internet access before conviction, so be it. But if they go to court and they are NOT found guilty, don't you think the school may have a lawsuit on their hands if they fail to re-enable the student's access?"
Answer: no, not at all. The standards required for civil actions are uniformly less stringent than for criminal. For example, it is far more difficult to have Person A convicted of murdering Person B, than it is to show that A probably caused B's death and thus shouldn't inherit under B's will.
Moreover, the civil lawsuit by a copyright owner against a file-sharer simply will not involve a "not guilty" determination: this isn't a crime, it's a civil tort. The court will only determine liability, and so even if it finds no liability it will not definitely include any statement of innocence.
Wrong. If a contract contains a clause that reserves the right to modify without re-consent, its entirely possible for that clause (and thus the modifications) to be enforceable (depending on which state you're in). There is absolutely no such thing as a requirement that modifications be "fair": the fact that unconscionable clauses are invalid has nothing to do with fairness at all. The courts simply will not engage in debates about 'fairness' of the sort you're suggesting.
We'd have to look carefully at the U.Kansas TOS before making any such conclusions here.
Incorrect. When State actors (such as the University of Kansas, which is an aspect of the Kansas state government) acts to deprive you of rights, they must respect substantive due process (as opposed to procedural due process, which refers to the need for hearings, etc.). Substantive Due Process essentially protects against arbitrary government action.
However, the students are not a member of any protected class, and this behavior doesn't implicate any protected rights (e.g. religion). As such, its almost certainly true that Kansas need only show a rational relationship between its chosen process and the goals to be accomplished.
The article makes a simple, fundamental pair of mistakes that renders it pointless and redundant: (a) there is a difference between complaining about the transparency of so-called invasions of privacy and complaining about the actual invasions (he does only the former); and (b) there is a difference between keeping information private from the government as opposed to keeping it private from private individuals.
By neglecting these points, he just engages in intellectual puffery. He hasn't argued at all against the "I have nothing to hide" argument, because he hasn't even addressed it. Chicanery.
Yeah, good luck getting a court (jury or judge) to agree with you on that.
You're right, it's far more legitimate to sell non-sexual simulations (e.g. typical video games) than to sell sexual simulations. There is clearly something this guy should be ashamed of in the fact that his video games involve sex, whereas Epic's and Id's games don't.
And yes, I'm fully aware Second Life isn't really a game: my point is that the sex-simulators he's selling are, themselves, games.
Well, since Libby didn't accept a pardon, but rather a commutation of his sentence, that's kind of a moot point, isn't it?
Commuting a sentence is, by definition, selective, in that the President reduces the sentence to an unrestricted degree.
Well, it should be obvious, but (a) what are the essential rights, and (b) how long-term can security be before it stops being "temporary"?
Re (a): I think we'd all agree on life, but what about speech (I think so), assembly (also true)? More difficulty, what about privacy? Our Founders didn't even think there needed to be a Constitutional right to privacy, mentioning it neither in the Constitution nor the Bill of rights. How about this "right to not be molested on a public street", is that an essential right? Or is it a liberty, granted at the whim of government, until it is no longer viable?
Re (b): Is anything that's not permanent temporary? If so, isn't the quote kind of meaningless? There's almost no such thing as "permanent security", because that only exists when you exterminate your enemies, or possess such overwhelming power that you can intercept any possible assault or invasion. More plausibly, all security is temporary because that's the human condition.
I find it disgusting how much the US government has invaded our actual rights - imprisoning people with Habeas, for example - but I also find it ridiculous how many people think that they're having an "essential right" violated by having to wait a little longer in line at the airport.
I think Spore was delayed until 2008.
You're wrong for several reasons.
(1) We prohibit practicing the law without a license for precisely the same reason we prohibit plumbing or electrical wiring without a license: to protect people from those miscreants who would take advantage by providing sub-quality service. This is no different from requiring medical licenses. In fact the need to protect is greater: defective legal practice burdens the entire jurisdiction with legal costs, etc.
(2) Lawyers didn't lobby to get un-licensed legal practice a crime: it's been illegal under the common law since England to do the professions without a license. Various jurisdictions encoded the common law as Statute at various times out of momentum as much as anything else.
(3) Do you have this same concern - as I noted in (1) - about other licensed fields? Do you think it's unreasonable to requires licenses for plumbing, wiring, medicine, driving, etc.?