May It Please The Court
Quote of the Day - You will find that the State is the kind of organization which, though it does big things badly, does small things badly, too.
If Only It Worked That Way For EveryoneThe State of California is busy dodging bullets. Stop for a second and read the intro to that court opinion.
Yes, you read it right: we didn't receive the money needed to pay your judgment, so we're not going to pay you, and we don't have to because we're the state.
You may have won, but ultimately, you lose.
Newsweek: Anonymously Reporting The News?Newsweek has had a bit of an accountability problem lately. Regardless of the weekly magazine's demands of others for accountability, it still attempts to rely on anonymous sources.
Let's take a look at it from a legal perspective. I wouldn't stand a snowball's chance in hell in winning a case if I relied on an anonymous source for testimony. Can any lawyer rely on anonymous sources? Sure.
But even they're restricted. Sometimes search warrants will issue, sometimes not. Judges evaluate the prosecutors' reliance on anonymous sources before the deciding to grant the prosecutors' request for a search warrant. The key, however, is the system of checks and balances, a key missing from the fourth estate.
There are no such restrictions, apparently. The issue with the lack of any system of checks and balances in the media is troublesome. Our basic foundation for government rests solidly on those two precepts.
So why won't journalists create checks and balances? Would we get better news if reporters' stories that relied on anonymous sources had to be vetted by an independent evaluator?
Let The Merlot FlowIn light of today’s Supreme Court decision, wine lovers everywhere are raising their glasses to toast the impending opening of the floodgates of interstate wine shipments. My email box has been continually filling with news and special offers from wineries, retailers, and friends. Many just excited with the possibilities and others looking to ship to the new-promised lands as soon as tomorrow (although I think that may be jumping the gun).
The ruling prohibits from discriminating against out-of-state shipments to consumers. However, the ruling itself does not actually force states to allow out-of-state shipments. It limits itself to preventing states from enforcing different standards between intrastate and interstate shipments. Presumably, a state could choose to ban both types of shipments and be in line with the law. My guess is that the majority of states will elect to open their borders, just as Texas did days ago.
Having worked in the wine business for a small producer, I couldn’t be happier with the Court’s decision. The ugly maze of states in which we could directly ship and those that were verboten was staggering and in a constant state of flux. Hopefully, this ruling will encourage states which have previously forbidden out-of-state shipments to open their borders rather than eliminate intrastate shipping as well. After all, there are now commercial wineries in all 50 states and for many of the smallest wineries in less-known states, if intrastate shipments are prohibited in order to avoid allowing interstate shipments, many of these wineries are likely to fold. It certainly wouldn’t be a popular position in the state house to tell your constituents that they can no longer ship their wines from Long Island to Manhattan just to keep California wineries from shipping their wines directly to Park Avenue.
So tonight, raise your glass, toast the Commerce Clause and think about the wonderful world of wine that the Supreme Court has opened up to you!
All Others Pay CashYou've seen the emails. Almost spam, but they're most likely from a well-meaning friend who cites all of the places that you can see the terms "In God We Trust," perhaps in favor, perhaps against.
Apart from my father's profession as a minister, it doesn't matter to me. But it does matter to the Fourth Circuit. They decided that a County building in North Carolina could still display the phrase above the doorway.
The Court determined that the phrase is not an unconstitutional infringement of the mandate separating church and state. The three-judge panel thought the term was more patriotic rather than religious.
Will this case head to the Supreme Court? Maybe not. The Supreme Court is more likely to make a preemptive ruling. They decided to hear two of the Ten Commandments cases, and those decisions will come first. Once we know the ruling in those cases, we may know whether this Country's government still trusts in God.
Contest: What Makes America Great?If no one brought a gun into a courthouse, then would there be any need to carry heat?
If politicians wouldn't blame so-called "activist judges," then would people be incited to act against the judiciary?
These are tough questions that demand tough answers.
Let's look at it from the basics. Government was formed by the people and for the people. The Constitution created three separate, but equal, branches of government.
One of those branches was deemed independent of the other two. Here's what the Constitution provides: the judiciary is accountable to the political branches by giving the political branches the powers to nominate and confirm federal judges and impeach and remove federal judges for high crimes and misdemeanors.
That's it. Plain and simple. Sure, there are some other checks and balances such as funding and overseeing court operations, but beyond that, the judiciary is independent. There is only one way to get a federal judge out of office.
Congress and its members have tried to change that independence, not only legislatively, but also politically.
Sure, judges issue unpopular decisions. Let's look at a few:
Plessy v. Ferguson
Grovey v. Townsend
Brown v. Board of Education (overruled Plessy v. Ferguson and ended segregation)
Engel v. Vitale
Gideon v. Wainright
New York Times v. Sullivan
Griswold v. Connecticut
Miranda v. Arizona
U.S. v. O'Brien
Tinker v. Des Moines Independent Community School District
Branzburg v. Hayes
Roe v. Wade
U.S. v. Lopez
You can skip through those opinions and get a flavor for the intensity of the issues on both sides of the coin. We all disagree with some of those decisions. Each of these historical decisions were very unpopular at the time they were issued. Decisions that are being made today are equally unpopular.
That's my point. We now take the results of these decisions for granted. Who doesn't know their Miranda rights?
Without independence, judges are not free to decide the issues as they see them. Even the judiciary disagrees with itself (Brown v. Board of Education overruled Plessy v. Ferguson) on occasion.
But if we allow politicians, religious leaders, atheists, liberals, conservatives, democrats, republicans, mothers, fathers and even you and me to interfere with that independence, we don't have a Constitution.
That's what makes America great. Let's keep it that way, and let the judicial system do its job - the job they were assigned under the Constitution.
Globalization And The World's GameWith finals over and summer school not yet in session, I have finally had a chance to catch up on some much needed rest as well as the news from around the globe. For those who have read my posts before, you know that I am a big sports fan and nothing could be bigger than my love for soccer. I enjoy both playing and watching a match whenever possible so it was with great interest that I see that Malcolm Glazer has increased his bid for a controlling share in Manchester United, of the English Premier League, arguably the most famous club in all of sports. We’re talking on the level of the Lakers, Yankees, and Dallas Cowboys all rolled into one. The proposed takeover is fascinating both from the fan and business standpoints.
The takeover bid fascinates me because of the adamant opposition from the United faithful. Perhaps the fans see something in Glazer that I don’t (and I probably don’t as an Arsenal supporter) that makes them especially apprehensive. The supporters express concern that he has no “football” knowledge and that all he cares about is the mighty marketing dollars that the club generates. I would also guess its a big hit to the ego that an American would control the team.
It may be true that Glazer lacks “football” knowledge, but I urge the United Fans to look at his track record with the Tampa Bay Buccaneers. Prior to Glazer’s ownership, the Bucs were perennial losers in the NFL. After his purchase, Tampa Bay won its first Super Bowl. Glazer accomplished this feat by hiring people that know the game to take care of on-the-field decisions and investing in players. He didn’t make himself head coach or starting quarterback. If the team hadn’t won, would it have been a good investment? No, winners make money and Glazer is a smart guy who likes to make money. After all, I doubt the United investment is a $1.5 billion dollar hobby horse. If Manchester United doesn’t win, his investment doesn’t perform and the ever-growing Manchester United fan base stalls. My bet? Glazer hires the best coaches and players available so that he produces a winner. Not to mention he has only to raise this team from a third-place finish this year and not the bottom of the table (although to United Fans, third place behind Chelsea and Arsenal might as well be last place).
As for an American grabbing control of the most famous English club in the world, how is it different from the line-up that the team currently fields? The squad includes an American, Argentine, Dutchman, Frenchman, and Norwegian, among other nationalities. The players were chosen not based on their nationality but on their ability to win. There is no reason to think that Glazer thinks of anything but winning even if he is from this side of the pond. If the United supporters need any more reassurance, they need only look at Chelsea and their billionaire Russian owner.
If my German car is assembled in South Carolina, what’s wrong with my British football being assembled by an American?
An Unbearable Copyright: Coverage For ClothesMuch as designers may like, the U.S. Copyright Office won't issue copyrights for useful articles. High on the list of useful articles is clothing.
For one company, copyrighting clothing is very important - for stuffed bears.
How do they avoid the "useful article" designation? Well, most people don't consider toys "useful," so presumably, clothing for toys isn't "useful" either.
At least that's the determination made by Judge Christopher Conner in the Boyd's bears lawsuit against one of its competitors, The Bearington Collection. According to Boyd's, Bearington was copying the clothing designs used on the Boyd's bears. Bearington argued that since the USPTO wouldn't issue copyrights for clothing, it could copy the clothes used on Boyd's bears.
Judge Conner disagreed (for a second time), ruling in favor of Boyd's, and against Bearington. But the ruling isn't one that everyone can rely on. Judge Conner said we'd have to look at whether clothing was useful on a "case-by-case" basis. As he said at the very end of his opinion, "clothing for copyrighted bears doesn't ... serve any useful purpose ... it is not a useful article."
Just don't tell Barbie. She's wearing Benneton this year.
Step Right Up And Win A Big Prize As A State EmployeeHow would you like to get a grant for 90% of the cost to build your house? Or, perhaps somewhat more likely, plant your garden? Well, don't get too excited. It's not really likely at all.
Unless, that is, you own land. Lots of land. With trees on it. That need management.
Let me first get my biases out of the way. I was born on the East coast, grew up and went to high school on the East Coast, college on the East coast, and worked on the East coast. There, trees just grow. They don't need "management." But, as a transplant to California, I've learned that things are a bit different out here.
Here, apparently, trees need to be managed. In fact, they need so much management that the State will pay up to 90% of the cost to manage trees on private land.
What a boondoggle! Let's rush out and buy land with trees on it so we can get paid, too.
Admittedly, not too many people know about this deal, and frankly I wouldn't have either, except that a state employee applied for the grant, and the Department of Forestry, bless their hearts, asked the Attorney General if they could give the money to a state employee (see Opinion 04-701, to be posted soon).
The AG ruled yes, the state could give money to a state employee to manage trees. The AG noted that the landowner / state employee has no official involvement in evaluating and awarding grant applications and is not employed by the department, and none of his work affects the Department of Forestry.
I thought the rule would be something like entering a sweepstakes - employees of the company aren't eligible.
What was I thinking? It's the State of California Sweepstakes!