Judge Hogan is an Article III Federal judge. This means that he is neither elected nor retained by the Oregon voters, but rather is appointed for life by the President (George H.W. Bush in this case) and confirmed by the Senate. The only way to remove an Article III judge is by impeachment, which has happened before but takes a fair chunk of Congress' attention. Moreover, it would be utterly irresponsible to suggest impeachment is appropriate just because you disagree with one of his decisions.
No, exactly the opposite. You may disagree with the particular law in question, but the Supremacy Clause (Article IV, Clause 2) states:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
However, I do agree with you that the Raich (545 U.S. 1) decision, which held that growing pot in your backyard is interstate commerce, is a bit ridiculous from a logical perspective.
It is worth mentioning that Oregon has a state constitution that protects free speech even more so than the First Amendment to the Federal Constitution. The relevant language is:
"No law shall be passed restraining the free expression of opinion or restricting the right to speak, write or print freely on any subject whatsoever; but every person shall be responsible for the abuse of this right." Article 1, Section 8, OR Constitution.
Although I'm not an expert on Oregon law, I have spoken with a few Oregon Supreme Court justices, and they interpret this language much more broadly than the protections of the First Amendment. So... in practical terms I think that means this law doesn't have much chance since it is very dubious (i.e. not a chance in hell) even under Federal free speech law.
I believe that in most jurisdictions (all?), lawyers are officers of the court and can issue subpoenas for cases they are litigating before the court that have legal force.
According to the DMCA (17 USC 512(k))
(k) Definitions.
(1) Service provider.
(A) As used in subsection (a), the term "service provider" means an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user's choosing, without modification to the content of the material as sent or received.
(B) As used in this section, other than subsection (a), the term "service provider" means a provider of online services or network access, or the operator of facilities therefor, and includes an entity described in subparagraph (A).
So that sounds like an open wireless network would count as a service provider. However, service provider liability is only limited if:
(i) Conditions for eligibility.
(1) Accommodation of technology. The limitations on liability established by this section shall apply to a service provider only if the service provider--
(A) has adopted and reasonably implemented, and informs subscribers and account holders of the service provider's system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider's system or network who are repeat infringers; and
(B) accommodates and does not interfere with standard technical measures.
(2) Definition. As used in this subsection, the term "standard technical measures" means technical measures that are used by copyright owners to identify or protect copyrighted works and--
(A) have been developed pursuant to a broad consensus of copyright owners and service providers in an open, fair, voluntary, multi-industry standards process;
(B) are available to any person on reasonable and nondiscriminatory terms; and
(C) do not impose substantial costs on service providers or substantial burdens on their systems or networks.
So unless you're putting up a warning to everyone who accesses your hotspot you're probably not complying with 512(i)(1)(A). Note also, 512(a) which provides that "conduit" ISPs, i.e. those that don't store data on their servers, but merely are common carriers of information, are not liable for copyright infringing data that moves through their wires. This pretty straight forward interpretation was upheld in Charter Communs., Inc. v. Charter Communs., Inc., 393 F.3d 771, (8th Cir., 2005). Note, however, that the DMCA only applies to copyright violations and doesn't address the child porn case suggested above.
Sorry it took so long to drag this up, I knew I'd read it somewhere, but I didn't think to look in my Criminal Law notes until I did a search of my whole hard drive. The case is Cheek v. United States (1991) 498 US 192.
The basic facts of the case are this: Cheek was an airline pilot and a tax protester. He refused to pay income taxes on his wages from American Airlines because he believed that the 16th amendment did not apply to wage income (among other arguments, but this is the issue that we are discussing here). The IRS charged him with felony tax evasion and the case got all the way up to the supreme court. The particular issue is that of the mental state of a criminal defendant, but no court at any point during the process thought his substantive argument was anything less than frivolous. That said, here is the most on point quotation I could find in the case:
"Cheek asserted in the trial court that he should be acquitted because he believed in good faith that the income tax law is unconstitutional as applied to him and thus could not legally impose any duty upon him of which he should have been aware. Such a submission is unsound, not because Cheek's constitutional arguments are not objectively reasonable or frivolous, which they surely are, but because the Murdock-Pomponio line of cases does not support such a position. " 498 US at 202.
Footnote 7 to Cheek reprints the seventh circuit's position on anti-income tax arguments:
The opinion stated, 882 F.2d 1263, 1268-1269, n. 2 (CA7 1989), as follows:
"For the record, we note that the following beliefs, which are stock arguments of the tax protester movement, have not been, nor ever will be, considered `objectively reasonable' in this circuit:
"(1) the belief that the sixteenth amendment to the constitution was improperly ratified, and therefore never came into being;
"(2) the belief that the sixteenth amendment is unconstitutional generally;
"(3) the belief that the income tax violates the takings clause of the fifth amendment;
"(4) the belief that the tax laws are unconstitutional; [498 U.S. 192, 199]
"(5) the belief that wages are not income, and therefore are not subject to federal income tax laws;
"(6) the belief that filing a tax return violates the privilege against self-incrimination; and
"(7) the belief that Federal Reserve Notes do not constitute cash or income."
That is an old interpretation of the 16th amendment. The current Supreme Court interpretation "income" is in Commissioner v. Glenshaw Glass Co. (348 US 426) Which states that "accessions to wealth, clearly realized, and over which the taxpayers have complete dominion" are properly taxable by the Federal government. The IRS as adopted this definition in the tax code ( 61(a)). In plain terms this means "income" is anything that the government has not expressly exempted from taxation.
You may argue that this was not the original intent of the 16th amendment, and who knows you may be right, but it is the current constitutional interpretation of it by the United States Supreme Court.
But Article 1, Sec. 8, however, does provide for IP rights:
Congress shall have power . . . To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.
So the parent was correct that IP rights are in the constitution, but incorrect that it was the first amendment.
Everyone keeps talking about "precedent." All that this means is that in this particular district (W.D. Oklahoma?) a case with similar facts will likely come out the similar way. Attorneys in other districts can raise this case as persuasive authority. What that means is you tell your judge, "Look, another judge already dealt with this and decided this way. You should too." However such cases are not binding. The only cases, in fact, that are binding are those from appellate courts above the court in question (the relevant Court of Appeals, or the Supreme Court).
As a law student I can categorically say that you are wrong. With only a very few exceptions (sale of land for example) verbal contracts are just as binding as written ones. The only issue is an evidentiary one of proving that the oral contract existed, which can sometimes be a bit difficult.
The rule against perpetuities, in most states, has an exemption for reversions to the original grantor. Furthermore, the original grantor fills in all the gaps created by grants that violate the rule against perpetuities. This means that it would present no bar to a person's estate retaining money even hundreds of years in the future. That said it would likely raise some very interesting legal issues.
Furthermore, many states have recently effectively eviserated the old common law rule against perpetuities so, while it is an interesting and mind bending exercise for first-year law students, there is little real applicability of it today (or so my Property professor told me...)
Deposition is different than testimony in court in terms of relevance. Evidence sought in a deposition does not have to be admissible in court, it must only be reasonably calculated to get at evidence that might be admissible in court.
Just a law student who's Civil Procedure book happened to be open to the Injunctions page when I read this post. And as to the level to get it past day 1? Well there's usually a lot of leeway for the parties to conduct discovery at the beginning of a trial (theoretically anyway) but if the case is ridiculously lopsided a judge can dispose of it before it even goes to a jury (summary judgment). However someone who is actually a lawyer could give you a better sense of what the practical realities of a case like this would be.
Potential for the ultimate success on the merits of the case is one of the factors a judge must consider when granting an injunction. If a judge thinks there's little to no chance of success for the plaintiff, he won't grant an injunction. So, while it is not a final judgment, it is a more important step than you'd imagine. For those curious here are the four elements (in federal court anyway) that a judge is to use: An injunction should be granted if
the plaintiff will suffer irreparable injury if injunctive relief is not granted
the plaintiff will probably prevail on the merits
in balancing the equities, the defendants will not be harmed more than plaintiff is helped by the injunciton
granting the injunction is in the public interest.
Washington State Code 9A.46.020
(1) A person is guilty of harassment if:
(a) Without lawful authority, the person knowingly threatens:
(i) To cause bodily injury immediately or in the future to the person threatened or to any other person; or
(ii) To cause physical damage to the property of a person other than the actor; or
(iii) To subject the person threatened or any other person to physical confinement or restraint; or
(iv) Maliciously to do any other act which is intended to substantially harm the person threatened or another with respect to his or her physical or mental health or safety; and
(b) The person by words or conduct places the person threatened in reasonable fear that the threat will be carried out. "Words or conduct" includes, in addition to any other form of communication or conduct, the sending of an electronic communication.
It is possible that Florida law would apply given that Thompson lives in Florida. I haven't yet looked into that, but I may if I get curious. However it is pretty clear to me that this is a spurious claim based on the Washington state definition of "harassment."
IANAL, but I am a law student. Thompson certainly can back out of such an offer. What he made was a legal offer and as the offeror he is master of the offer such that he can revoke it at any time up until it has been accepted. What "accepted" means can vary from situtation to situation, but in this case the offer expressly sought performance (it was a unilateral contract, or would have been had it ever been fulfilled) so "acceptance" would have been creating the game. There are plenty of exceptions that could conceivably be applied if someone had sunk a lot of money into developing a game based on his promise, but at this point those conisderations aren't relevant because they didn't happen.
So long answer to a short question. Summary: He's perfectly entitled to withdraw his offer
That sounds just like the philosophy or Epicurious, or if you prefer Latin to Greek then Lucretius' De Rerum Natura (Latin | English) parroted it pretty well. Note that epicurianism (contrary to modern stereotype) is not hedonism, true it advocates the maximization of pleasure, but it advises that the best way to do that is to live a life of moderation and to avoid all pain. Pleasure is the abscence of pain. Or something like that. I don't know that I agree with it, but it is interesting to thinka bout.
That's sort of what I was getting at with my question. Definitely that describes a bad government, but not (necesarially) a Fascist one. Especially not if you use a capital "F," but then that's really splitting hairs.
Slashdot Mirror
Judge Hogan is an Article III Federal judge. This means that he is neither elected nor retained by the Oregon voters, but rather is appointed for life by the President (George H.W. Bush in this case) and confirmed by the Senate. The only way to remove an Article III judge is by impeachment, which has happened before but takes a fair chunk of Congress' attention. Moreover, it would be utterly irresponsible to suggest impeachment is appropriate just because you disagree with one of his decisions.
However, I do agree with you that the Raich (545 U.S. 1) decision, which held that growing pot in your backyard is interstate commerce, is a bit ridiculous from a logical perspective.
I believe that in most jurisdictions (all?), lawyers are officers of the court and can issue subpoenas for cases they are litigating before the court that have legal force.
Sorry it took so long to drag this up, I knew I'd read it somewhere, but I didn't think to look in my Criminal Law notes until I did a search of my whole hard drive. The case is Cheek v. United States (1991) 498 US 192.
The basic facts of the case are this: Cheek was an airline pilot and a tax protester. He refused to pay income taxes on his wages from American Airlines because he believed that the 16th amendment did not apply to wage income (among other arguments, but this is the issue that we are discussing here). The IRS charged him with felony tax evasion and the case got all the way up to the supreme court. The particular issue is that of the mental state of a criminal defendant, but no court at any point during the process thought his substantive argument was anything less than frivolous. That said, here is the most on point quotation I could find in the case:
Footnote 7 to Cheek reprints the seventh circuit's position on anti-income tax arguments:
That is an old interpretation of the 16th amendment. The current Supreme Court interpretation "income" is in Commissioner v. Glenshaw Glass Co. (348 US 426) Which states that "accessions to wealth, clearly realized, and over which the taxpayers have complete dominion" are properly taxable by the Federal government. The IRS as adopted this definition in the tax code ( 61(a)). In plain terms this means "income" is anything that the government has not expressly exempted from taxation.
You may argue that this was not the original intent of the 16th amendment, and who knows you may be right, but it is the current constitutional interpretation of it by the United States Supreme Court.
err, that would be "its plural."
"consensus" is a fourth declension noun (in Latin) so it's plural, properly, is "consensus." No change. Who knows what it is in English though.
Everyone keeps talking about "precedent." All that this means is that in this particular district (W.D. Oklahoma?) a case with similar facts will likely come out the similar way. Attorneys in other districts can raise this case as persuasive authority. What that means is you tell your judge, "Look, another judge already dealt with this and decided this way. You should too." However such cases are not binding. The only cases, in fact, that are binding are those from appellate courts above the court in question (the relevant Court of Appeals, or the Supreme Court).
Just wanted to clarify.
As a law student I can categorically say that you are wrong. With only a very few exceptions (sale of land for example) verbal contracts are just as binding as written ones. The only issue is an evidentiary one of proving that the oral contract existed, which can sometimes be a bit difficult.
But then the question the law will have to address if that ever happens is: was he really dead?
The rule against perpetuities, in most states, has an exemption for reversions to the original grantor. Furthermore, the original grantor fills in all the gaps created by grants that violate the rule against perpetuities. This means that it would present no bar to a person's estate retaining money even hundreds of years in the future. That said it would likely raise some very interesting legal issues.
Furthermore, many states have recently effectively eviserated the old common law rule against perpetuities so, while it is an interesting and mind bending exercise for first-year law students, there is little real applicability of it today (or so my Property professor told me...)
Deposition is different than testimony in court in terms of relevance. Evidence sought in a deposition does not have to be admissible in court, it must only be reasonably calculated to get at evidence that might be admissible in court.
They'll get sued, and then discovery requests will request their computers/opperations manuals and then it'll come out.
I like that brief of Fuentes... I wonder if that gloss will fly on my civpro exam next week? :)
All your Google base are belong to us!
Just a law student who's Civil Procedure book happened to be open to the Injunctions page when I read this post. And as to the level to get it past day 1? Well there's usually a lot of leeway for the parties to conduct discovery at the beginning of a trial (theoretically anyway) but if the case is ridiculously lopsided a judge can dispose of it before it even goes to a jury (summary judgment). However someone who is actually a lawyer could give you a better sense of what the practical realities of a case like this would be.
- the plaintiff will suffer irreparable injury if injunctive relief is not granted
- the plaintiff will probably prevail on the merits
- in balancing the equities, the defendants will not be harmed more than plaintiff is helped by the injunciton
- granting the injunction is in the public interest.
Taken from 526 F.2d 46.Washington State Code 9A.46.020 (1) A person is guilty of harassment if: (a) Without lawful authority, the person knowingly threatens: (i) To cause bodily injury immediately or in the future to the person threatened or to any other person; or (ii) To cause physical damage to the property of a person other than the actor; or (iii) To subject the person threatened or any other person to physical confinement or restraint; or (iv) Maliciously to do any other act which is intended to substantially harm the person threatened or another with respect to his or her physical or mental health or safety; and (b) The person by words or conduct places the person threatened in reasonable fear that the threat will be carried out. "Words or conduct" includes, in addition to any other form of communication or conduct, the sending of an electronic communication. It is possible that Florida law would apply given that Thompson lives in Florida. I haven't yet looked into that, but I may if I get curious. However it is pretty clear to me that this is a spurious claim based on the Washington state definition of "harassment."
IANAL, but I am a law student. Thompson certainly can back out of such an offer. What he made was a legal offer and as the offeror he is master of the offer such that he can revoke it at any time up until it has been accepted. What "accepted" means can vary from situtation to situation, but in this case the offer expressly sought performance (it was a unilateral contract, or would have been had it ever been fulfilled) so "acceptance" would have been creating the game. There are plenty of exceptions that could conceivably be applied if someone had sunk a lot of money into developing a game based on his promise, but at this point those conisderations aren't relevant because they didn't happen.
So long answer to a short question. Summary: He's perfectly entitled to withdraw his offer
That sounds just like the philosophy or Epicurious, or if you prefer Latin to Greek then Lucretius' De Rerum Natura (Latin | English) parroted it pretty well. Note that epicurianism (contrary to modern stereotype) is not hedonism, true it advocates the maximization of pleasure, but it advises that the best way to do that is to live a life of moderation and to avoid all pain. Pleasure is the abscence of pain. Or something like that. I don't know that I agree with it, but it is interesting to thinka bout.
Does Netscape have anything on Firefox/Thunderbird anymore? Why not just go with the Mozilla apps instead?
That's sort of what I was getting at with my question. Definitely that describes a bad government, but not (necesarially) a Fascist one. Especially not if you use a capital "F," but then that's really splitting hairs.