Congratulations to Chicago Kent School of Law

Just a quick post to congratulate a friend of mine on a national moot court win. Elaine Wyder-Harshman and I both worked for the Illinois Attorney General's Office last summer. The title link goes to the story. Congratulations again Elaine, and good luck to Kent at this years Vanderbilt competition, they should look for strong competition from us here at Valparaiso University School of Law.

Don't forget to read The Divide Destroying Democracy.

Diminishing Rights of Detainees...

Last term, the United States Supreme Court determined that detainees held by the military during war time had a right to due process in the American legal system to challenge their detainment. This allowed the detainee to petition the Federal District Court through a Writ of Habeas Corpus. The title link goes to a story about how the Senate just passed a bill that would circumvent this decision, effectively obliterating any due process rights detainees may have had. In order for this particular statute to avoid violating the Constitution, it has to be made under Congress's power to limit the jurisdiction of the federal courts. While this highlights the tension between the politics of the executive/legislative branches and the judiciary, the larger problem is the willingness of lawmakers to limit the rights of those with the fictional title of "enemy combatant." This title works in a particularly negative way. Its not a term acknowledged by international human rights treaties. This means that permanent detention is not within the restrictions of the Geneva Convetion. While a moment of rhetorical brilliance, do we really want to allow our government to violate human rights by changing the definition of who may be a detainee?

Don't forget to read "The Divide Destroying Democracy."

More on Gay Marriage Bans...

The title link goes to a blog by John Ichikawa. I came to it through a post by another blogger, Wesaturtle, whom I became exposed to via Fazed. Now that the circle is complete, lets get to the point. Jonathan's blog post deals with a law just passed in Texas banning gay marriage. The language of the Texas state Constitutional Amendment indicate on their face that it bans all marriage. I posted a comment to his post detailing how this probably isn't the case. the language indicates that marriage is constitutionally defined in Texas as between a man and a woman. The following subsection states explicitly that no governmental entity in Texas may acknowledge a marriage that does not fit the definition in the prior subsection. This goes back to my repeated rebuke of limitations on definitions of marriage. Under cases like Loving v. Virginia and Lawrence v. Texas, its more likely than not that a future panel on the United States Supreme Court could invalidate these restrictions under due process and equal protection.

Please don't forget to read "The Divide Destroying Democracy" and promote my use of alliterations as titles.

The Divide Destroying Democracy

The Grey Area this month takes a philosophical swipe at the bipartisan party structure in American politics. Ideally, political parties help express specific ideas through the political process. Unfortunately, the structure of the parties is doing a disservice to the goal of allowing more citizens express their political beliefs.

I Don't Know Why but This Bothers Me...

The article in the title link informs the American Public that its President currently wages war against individuals it calls political enemies. What is even more interesting is that these so-called enemies are American Citizens, and the executive keeps files on each one of them. This process started when Bush was Governor of Texas. Sounds more like Gestapo politics to me. I was unaware that having an adverse political opinion these days could land you on the political enemy combatants list...

DRM IS EVIL!

This blog makes no bones about the fact that I can't stand DRM (digital rights management). The only thing worse is when the government backs DRM with legislation already struck down by the Courts as unconstitutional. Unfortunately, the Broadcast Flag legislation is back. Ladies and gentlemen, this is an attemtp to restrict information flow to the American people. This is asinine. Call or write your congressman. Please!

Proof That No Good Deed Goes Unpunished...

Wired News is running a story about a group of animal rights activists that is suing the proprieter of the Altamont Wind Farm because of the environmental hazards its poses to avian ecosystems. Everyone has seen the Altamont Wind Farm in a green energy commercial, usually through some cinematic footage flying over the turbines of the giant wind generators. While the wind farm is hearlded by many as the greatest experiment in green energy ever conducted, some of the animal friendly oppose the full operation of the farm because of its desparate impact on migritory birds whose flight path goes through the wind farm. The large blades of the generators are responsible for an increasing number of avian deats each year.

This is one of those stories you can't help but scofe at. Apparently the hippies don't have anyone else to annoy with frivolous lawsuits, so now they have taken aim at one another. Conversely, this could be the begining of seeing green energy as viable corporate production equal to, or supplanting, utilities dependent upon non-renewable resources. While I hope its the latter, what stands out in this story is the fact that like minds have now decided to sue one another. This situation also demonstrates that there are very few things modern man can do to preserve the environment without impacting mother nature in some other adverse way.

Following up on open documents

A while ago, there was quite a to-do over the Massachusetts legal system choosing to go to open document formats. The title link goes to an article responding to criticisms by Microsoft boosters. In this particular harangue, I want to throw out a constitutional ideal. Open document formats are available free to the public through the open source licensing scheme and the general public license scheme. This could equal a brave move by the state of Massachusetts to allow access to the courts by anyone with a computer and an internet connection. OpenOffice.Org allows anyone to use a full suite of programs to create documents. Now, these documents are admissible for court filings in Massachusetts. Allowing the everyman to participate in the legal system breaks down the walls and opens the doors Kafka contemplated as the bar to many individuals from influencing the legal system.

Abstracting Booker

This column was printed in the October 12, 2005, issue of the Valparaiso University School of Law newspaper, "The Forum."

Last term, the United States Supreme Court considered the Booker case. This opinion dealt with the sentencing scheme in criminal cases. More specifically, the confusion that has resulted in the Court's decision to declare the standing sentencing scheme unconstitutional. The coming terms will tell how this decision will affect the federal criminal justice system in the future.

Not So Free Information

It boils down to limiting the use of broadcast information by embedding it with a tag. The Broadcast Flag is a function of lobbiests jockeying for legislation that would allow the MPAA and RIAA to increase the strength of their relentless campaign against the average individual, freedom of information, and the interests of free speech. As the linked article above indicates, the federal courts have already demonstrated that the flag exceeds the constitutional power of the FCC to mandate that every television be capable of interpreting the flag. Interestingly enough, the legislation is coming before Congress for a mandate by the federal government.

Increases in personal technology allows the everyman to do much more than she or he could before. This includes record media transmissions. The first major manifestation was Napster. Now, advancements in video recording hardware and software have allowed access to video content in the same way. The Broadcast Flag aims to prevent this by limiting what information may or may not be recorded. Oddly, it only works with high definition television. Entities standing to benefit from this legislation could include the MPAA, the RIAA, any electronics manufacturer (your 3 year old HDTV will now be obsolete), Comcast (specifically their On-Demand business), and DVD rental establishments. It hurts the average person and the non-corporate visual and musical artists, and will annoy TIVO users. Why should the everyman be interested in this legislation? It will significantly inhibit your ability to exercise free speech by requiring a form of government intervention to determine whether or not you actually have a right to speak. It gives big business the ability to control what is said, who says it, and what method it is disseminated. Contact your Senators and tell them to prevent the creation of the broadcast flag.