Another 5-4 Vote!!!

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It is now vividly clear where the interests of the Supreme Court Justices lie, with Big Business!

Our trusty Justices, in a surprising, you guessed it, 5-4, vote overturned a 96-year old law that made it illegal for manufacturers to dictate minimum pricing to retailers. Not only did the four dissenting justices disagree with this ruling, but 37 states, that 74% of the country, also urged the Supreme Court to stay with the old precedent. However, the Court in its infinite wisdom believes anti-trust agreements and the violations thereof should be viewed on a case-by-case basis, “known as a ‘rule of reason,’ to assess their impact on competition.” Herald Tribune

Is it just me or does it appear that with each and every ruling that secretes from the bench of Supreme Court, that much more of what this country stands for is torn down and discarded along with the progress we’ve made? Every case that enters with seemingly a “no brainer,” “hands down” decision, emerges to the shock, dismay, and bewilderment of the masses.

I’m completely disgusted with the proverbial garbage that continues to spew from the pillars of so called “justice;” the pillars that I once held in such high regard and justices with such admiration. The law of Roberts and his cronies sickens me. In a span of a few short weeks the Court has managed to (1) and (2) set women’s rights back one hundred years both in workplace discrimination and abortion issues, (3) compromise the First Amendment - freedom of speech, (4) approve of segregation in public schools, (5) threaten the separation of church and state by allowing efforts to extend more federal funding to faith-based initiatives, (6) further disintegrate anti-trust laws, (7) removed restriction on third-party political ad campaigns, allowing for “buying power” to prevail over elections. These rulings come within barely two weeks of work for the Roberts Court and all by a narrow 5-4 vote. There are 23 in total 5-4 rulings, which speak volumes. CBS News

Congratulations to George W. Bush, he has managed to further divide this country; unfortunately, we well be feeling the effects of this Court for decades to come. Let us hope for no vacancies within the remainder of his term, and if there is that the Senate refuses to entertain the idea of another Bush appointee. Washington Post

Another Blow to the First Amendment

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The U.S. Supreme Court today administered yet another blow towards the diminution of the Constitution with it's ruling against student's free-speech. Official slip opinion.

The case, Morse v. Frederick, a First Amendment free-speech issue, landed on the steps of the Supreme Court on appeal from the appellate courts ruling that the high school principal did in fact violate the student’s constitutional right to free-speech when she ripped down a banner the student unfurled displaying the words “Bong Hits 4 Jesus.” A violation of the student's constitutional right as was firmly established and clearly defined decades prior by the landmark case Tinker v. Des Moines.

The Supreme Court, after hearing oral arguments this past March, has now today decided in an all too familiar 5-4 decision, that student free-speech rights should be based on the message - subject to the interpretation of whomever - and not “the right” to express it. In this case, “because the principal said ‘the phrase was a pro-drug message”’ even though the student “denied that he was advocating for drug use,” the Court believed the principal was justified in her actions. The Court, however, insists that this ruling "goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use." (Associated Press-Texas)

Isn’t that the point of “free speech,” to advocate one’s disagreement/opposition, concurrence, etc., whether in compliance with what another (being/agency) believes is permissible, acceptable? What is “reasonable” and in what context? What if the banner would have said “Get High with Jesus” would that be the equivalent? One “reasonable” mind could interpret the phrase to advocate illegal drug use simply for the use of the words “get high” while another “reasonable” mind could interpret it those same words to mean a “natural” emotional feel of excitement, as in "high on life." Every word or phrase displaying a message is subject to interpretation, is one individual’s interpretation more “reasonable” than another’s, in other words, is a principal’s interpretation, however ignorant it may be, more reasonable than that of a students? And would the establishment of the "reasonableness" of such interpretation of speech be a matter of law or fact?

Cheers ~

The Influence of Words

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Here's one for all my law school criminal litigator friends.

A Nebraska judge, upon motion by the defense in order to "keep the trial fair," has now decided that the use of the words "rape" and "sexual assault" by a witness in a "sexual assault" case are prohibited. It was reasoned that the terms "rape" and "sexual assault" represent conclusions, the attainment of which are the exclusive function of jury, not witnesses, and to permit the use of such terms would “invade[s] the duties of the jury” and “create[s] unfair prejudices for the defendant.”

On the other hand, when the prosecution motioned to have the terms "sex" and "intercourse" banned as well, because such terms are viewed as consensual, the judge denied the motion, and after 13 hours of testimony by the victim, further banned the words “victim” and “assailant.” WorldNetDaily

So, in essence a injured party cannot express in words that she was the victim or that the defendant raped her while the defendant gets to simply say he had intercourse with the women or sex with (her name).

Again from the utilitarian view, what statement is this judge making? Is there no difference in hearing the victim say "he raped me" as opposed to "he forced me to have sex" or "he held me down and had intercourse with me?" The jury will never hear the forbidden words until instruction from the judge before deliberation. Does this ruling cause the “facts” to be played to favor the defendant? Is the prosecution being afforded the ability to adequately conveying the facts to prove its case or will the case “turn on the facts?”

Cheers ~

Product Pricing - Who Should Control it?

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Who should have the right to set product pricing, the manufacturer or the retailer? Well we're soon going to know who the justices of the U.S. Supreme Court think should control pricing.

This case, Leegin Creative Leather Products v. Kay's Kloset, Leegin, a smaller company in an effort to keep up with the big boys attempted requiring it’s retailers to adhere to a minimum price. Kay’s Kloset, on the other hand decided it wasn’t going to comply, selling the products at a 20% discount. Leegin then determined it would no longer allow Kay’s Kloset to sell it’s leather at all and yanked it’s products. And off to court we go.

The issue here is “whether a brand can dictate a minimum price to retailers in a legally binding way” currently prohibited by antitrust laws, which dictates that “all price-fixing agreements are automatically illegal.” In the first round, Kay’s Kloset won to the tune of $3.6 million in damages; next stop, U.S. Supreme Court, where there already appears to be division amongst the ranks of the justices.

Justice Antonin Scalia (conservative) says "We have shown our willingness to update the antitrust law when sound economic doctrine suggests it is necessary," while Justice David Souter (liberal) “questioned whether the court should wade into such waters.”

The significance of this case is that if the Supreme Court decides to overturn the previous ruling, not only will they be upsetting centuries of settled law, but by allowing manufacturers to set prices, such a decision would substantially reduce the autonomy of retailers to move products in their own stores.

In my opinion, to allow manufacturers to “price-fix” not only gives entirely too much control to manufacturers but hurts retailers and consumers alike. Even the higher end retailers such as Bloomingdales, Lord and Taylor, Sax Fifth Avenue, etc., tend to take advantage of end of season sales to unload merchandise, if the manufacture sets a minimum price, what happens when the retailer can’t mover enough of the product? Price competition would essentially become a thing of the past, which is bad news for both retailers a well as consumer.

As my Criminal Law professor would say, what would allowing manufactures the ability to legally “price-fix” do to the floodgates? Think about this from the utilitarian view and from the understanding that while this particular case involves leather products, consumers purchase everything from the most basic necessities (food, clothing, home-care products) to appliances, machine equipment, etc. If it is permissible for clothing manufacturers, it must then follow that manufacturers of other products must be afforded the same power.

The court is on recess until the end of the month, but it will be interesting to see how this shakes out. Read the complete article here

Cheers ~

Dissolution of Same Sex Unions and Child Custody/Visitation

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If two women or two men are joined in a civil union and choose to bring children into the union, if the union is later dissolved, how should child custody and visitation rights be determined?

The Vermont Supreme Court has decided that it should be granted no differently than that of a union “marriage” between a man and a women.

In a case involving two women, one of which is the child’s biological mother, the court awarded physical custody to the biological mother with visitation to the other woman - every other weekend - alternating between Vermont and Virginia. U.S. Supreme Court has refused to hear the case on appeal.

Because the women live in different state, there is a discrepancy as to which court has jurisdiction governing the custody of the five-year old daughter, the case was filed in both Vermont and Virginia, the biological mother still having a case pending in the latter. Read the complete story here

This decision seems to be a monumental step toward acceptance of same sex unions, at least in the state of Vermont. In this case there is a biological parent and the court, while awarding physical custody to that parent, nevertheless saw it fit to grant reasonable visitation to the non-custodial parent, which to me is a stronger statement than had neither parent been the natural parent. What do you think? Will Virginia follow by upholding Vermont's decision and where does this lead us?

Cheers ~

Greetings and Welcome

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Two great loves of my life are the law and discussing, debating and arguing it.

I created this site to give myself and anyone else who wishes to contribute a place to post articles, give opinions and discuss any and all law related topics, issues, happenings, from law school to U.S. Supreme Court decisions and everything in between. If you agree, disagree, would like to discuss, debate or want to share an opinion about anything posted here, please feel free; meanwhile, I hope this site proves to be interesting as well as enlightening.

Cheers ~