May It Please The Court
Quote of the Day - Our constitution protects aliens, drunks and U.S. Senators.
Do You Have A Constitutional Right To Get Drunk On Private Property?We've had a lot of talk about the constitution lately, but we're about to have one more discussion. Do you have a constitutional right to get drunk on private property?
The government can take your property, but what about the circumstance where you're drunk on your property? Can they take you?
That's what happened to twenty-five-year-old Eric Laverriere last New Year's Eve. He started the night at a friend's house, and was invited to spend the rest of the night there. Until, that is, the cops arrived. Apparently, someone had thrown champagne and beer bottles at a passing police cruiser, Waltham Police claimed.
Right. We've all done some pretty dumb things after a few drinks, but throw bottles at a cruiser?
The police paid the party a visit, and after discovering an allegedly inebriated Laverriere, they invoked the Massachusetts Protective Custody law, Mass. Gen. Laws ch. 111B, § 8 and invited him back to the drunk tank.
I've checked the Constitution, and it doesn't mention anything about drinking or getting drunk. It does, perhaps not surprisingly, protect Senators and Representatives from arrest while in Session (Art. I, § 6). So, our Congresspeople can get drunk on the floor of the House or Senate and they can't be arrested, but heaven help you if you're in Waltham. I don't know.
Maybe Mr. Laverriere is claiming he has the right to pursue life, liberty and happiness. Seriously, though, I'm not far off. His lawsuit claims a constitutional right of "privacy and liberty right founded in the Due Process Clause of the Fourteenth Amendment to the US Constitution."
Not everyone agrees, however. What say you?
Reporters Go To Jail, But Where Are The Standards?Is it a matter of black and white or shades of gray? When is it acceptable to breach a pledge of confidentiality for a reporter?
For a lawyer, it's easy. Never. We have the Rules of Professional Conduct and consequences if we do. Like not practicing law.
Reporters, on the other hand, have no such hard-and-fast rules, and there's no ticket necessary to "practice" journalism. There may be consequences, but Time to give in on occasion.
Reporters and lawyers had an off-air discussion at the Legal Talk Network that we should have taped and podcast, but unfortunately, the discussion got going before the tape recorder did. The consensus of the discussion included speculation that perhaps it would be best if reporters had hard and fast guidelines, along with the requirement for a journalistic license. After all, we license doctors, lawyers, veterinarians and a host of other professions, all for the public good, health, safety and welfare.
Should reporters be licensed and subject to a set of written ethical rules?
I Am A Lawyer, I Play One On TV And BTW, Do You Want To Be On The Supreme Court?This guy will soon be asking that question. If you think I'm kidding, just ask President Bush.
Star of small and big screen, former Senator Fred Dalton Thompson will guide President Bush's Supreme Court nomination through Congress.
As a former member of the Judiciary Committee, Thompson stands in a unique position as a former insider to ensure the nominee has a head start instead of a disaster. Once we know who the judicial nomination will be, Thompson will be the man behind the scenes.
Let's just hope Senator Thompson doesn't look to a co-worker first. Really, though, while everyone's prognosticating, the list has been short since 2001, and really hasn't changed much.
All we have to do now is wait, and hope the process is civil and without filibuster. As Senator Thompson said as Admiral Josh Painter in the The Hunt For Red October, "This business will get out of control! It will get out of control and we'll be lucky to live through it!"
Will life imitate art?
Kelo Fallout: Attackers Point to History As A LessonYou didn't think it would end here. Is the Supreme Court the final word? Will it take a constitutional amendment, as Nancy Pelosi has claimed?
Weeeelllll, yes and no. To change the actual Kelo v. New London decision, yes. To prevent it from happening again, no.
Believe it or not, we actually do have three branches of government, and one that is trying to blunt the SCOTUS takings decision. While Congress can't directly overrule the Supreme Court, it can pass laws to change Kelo. Indeed, here's the first shot at it - Congressman Phil Gringrey's bill was passed by the House last Thursday in an attempt to bypass the Kelo decision. It goes to the Senate next.
Some attackers point to the lesson from 1781 when Benedict Arnold burned down much of New London. Arnold attacked his former neighbors and killed 150 colonial militiamen at Fort Griswold, not far from Mrs. Suzette Kelo's home near Fort Trumbull.
They find some sympathy in the Court itself. In his dissent, Justice Clarence Thomas said, "Something has gone seriously awry with this Court's interpretation of the Constitution." There are those who want change the decision, and they're asking others to join in.
There are others who don't think the sky is falling.
Happy Independence Day.
Hat tip: Chris Muir's July 4, 2005 cartoon.
How High Is Your Interest (Rate)?You can manage your debt if you know how, according to MasterCard. If you don't, it can be disastrous in many ways, including bad credit. My grandfather had a rock-solid credit policy: if you can't pay cash, don't buy it.
Those days, though, have come and gone.
Some say that there's no upper limit to the interest rates credit cards can charge. On the other side of the coin, rates might not be high enough.
You do have choices, however. Just be careful which ones you make.
Will The Internet Fracture Along Geopolitical Lines?While we were watching the light pomp and circumstance of SDOC's resignation yesterday, the rest of the internet world's heads turned around once.
The National Telecommunications and Information Association announced that the United States is not about to give up control of the internet backbone that makes this country great. An about-face from prior pronouncements, NTIA (and you thought you'd heard of every government agency once you found out about the blacked-out NSA) said "no go" to the rest of the world that wanted 13 key internet computers turned over to ICANN.
In just four paragraphs, a new record, the Interstate Commerce Commission (NTIA is a sub-agency) turned the internet world on its head.
What does it mean? For the short term, practically nothing to you and me. It's not even a blip on your computer screen. In the long run, however, the political ramifications could fracture the internet into pieces. Since ICANN controls domain names and we've all agreed to standardized domain names, it appears now that any country could withdraw, potentially isolating itself from the rest of the world. The effect would wall off entire countries from the rest of the internet. They could converse internally, but not with the rest of the world.
Time will tell, but it seems like an unlikely doomsday prediction.
In the meantime, kids across the world can enjoy the newest domain name, courtesy of the United States. At least for the time being.
Balancing The Environment And Business
Farmers v. FishCalifornia ranchers, farmers and loggers sued the California Fish and Game Commission this week over the state’s protection of Coho salmon in northern California rivers. The suit claims that the CFGC lacked adequate information before listing the Coho as endangered and threatened and that the state regulations are duplicative of federal regulations.
Here’s my question: From a moral or ideological standpoint, when do we elect to enact protections for species that can’t speak for themselves? Do we wait for proof beyond a reasonable doubt that the species is endangered or clear and convincing evidence of threat or even a lower standard? Which party should bear the burden?
One possibility, although controversial, is to adopt a "precautionary approach" which among other purposes aims to ensure the sustainability of species while the threat is determined. The precautionary approach shifts the burden to the party whose activity may cause harm to prove that serious harm will not occur.1 The precautionary approach also resolves differences over the quality or quantity of research and data in favor of the conservation measure.2
Transferring the burden of proof to the ranchers and farmers to prove that their activities don’t harm the Coho seems to go against a certain intrinsic notion of fairness inherent in our adversarial legal system. Although “innocent until proven guilty” is a criminal mantra, I suggest such ideals influence other realms as well. A precautionary approach leaves the ranchers and farmers in a position which they are likely ill-suited to overcome. They now have to prove that their activities are harmless, while the state never had to prove actual harm.
This imbalance leaves me torn on a personal level. I like to think of myself as concerned about the environment and one who makes reasonable efforts to protect it. Plus, have you ever had fresh-grilled coho salmon with a great bottle of pinot noir? One of life’s great combinations. Admittedly, I come from a family of farmers (as well as a lawyer) and live in farm country. It's difficult to imagine placing such a burden on the backbone of our nation’s food supply.
What’s a farm boy who loves salmon supposed to do?
1 David Freestone, The Conservation of Marine Ecosystems Under International Law, in International Law and the Conservation of Biological Diversity 106 (Michael Bowman & Catherine Redgwell eds. 1996); Marcos A. Orellana, The Law on Highly Migratory Fisk Stocks: ITLOS Jurisprudence in Context, 34 Golden Gate U.L. Rev. 459, 461 (2004).
2 Tim Eichenberg & Mitchell Shapson, The Promise of Johannesburg: Fisheries and the World Summit on Sustainable Development, 34 Golden Gate U. L. Rev. 587, 609 (2004).