Expect the unexpected
12/20/12
By Erin Geiger Smith
The Supreme Court could never strike down a law as
unconstitutional if the measure weren't challenged in the high
court. So when a law is passed that someone finds legally
questionable, opponents sometimes go in search of a case to test
that law. In some cases, they even create the kerfuffle
themselves.
In light of challenges to the Defense of Marriage Act and
California's Proposition 8 that are headed to the Supreme Court,
Stephen Wemiel brings us a SCOTUSblog column on these so-called
test cases. Such litigation doesn't always go so well for the
challengers, Wemiel writes. A case in point: Plessy v.
Ferguson, the famous Supreme Court challenge brought by groups
arguing for equality of the races but which ended up creating
the principle of "separate but equal."
The article walks through several other historical examples
that any Supreme Court buff will enjoy. Reuters' own Joan Biskupic penned a special report early this month on another
test case, where former stockbroker Edward Blum is responsible
for ushering this year's blockbuster affirmative action cases
though the judicial system to the high court.
Straight talk
12/20/12
By Suhrith Parthasarathy
The talk show host Charlie Rose and his production company
have settled a class action brought by a former intern who
claimed that her unpaid internship violated labor laws (hat tip:
Politico). Lucy Bickerton, who worked for Rose between June and
August 2007, said she regularly put in 25-hour weeks without
wages, and in March 2012 she sued the talk show host in state
court in New York.
On Thursday, Bickerton's lawyers told the court that Rose
and his production company will pay up to $250,000 in a deal.
According to The New York Times, the settlement calls for 189
interns to receive $1,110 each, reflecting a $110-per-week
salary for ten weeks, approximately the length of a school
semester. It stipulates, however, that neither Rose nor the
production company has admitted any liability or wrongdoing and
that the deal is solely to avoid costs and disruption arising
from the litigation.
Similar cases have been filed recently. In February, as Reuters reported, a former intern at Harper's Bazaar sued its
publisher, Hearst Corporation, claiming that her unpaid
internships violated labor laws. The case is pending trial in
district court in New York.
Pin heads
12/20/12
By Caitlin Tremblay
A pin that "Hunger Games" heroine Katniss Everdeen uses as a
good luck charm in the blockbuster film is causing a headache
for Lionsgate Entertainment, reports The Hollywood Reporter. The
pin, which features a bird with an arrow in its beak, appeared
on the cover of the original book and has become a symbol of the
"Hunger Games" movie franchise. It even shows up on the movie
poster for the next filmic installment, "Catching Fire."
Turns out, a company called Yagoozon allegedly has been
selling counterfeit versions of the charm, much to the chagrin
of Lionsgate. The studio has sued Yagoozon in California federal
court, claiming it doesn't have a license to sell the pin.
Yagoozon says it tried to buy pins from licensed merchandiser
National Entertainment Collectibles Association but was turned
down. Yagoozon's chief financial officer even sent a threatening
letter to the NECA alleging antitrust violations for not selling
his company "Hunger Games" merch.
The Hollywood Reporter has side-by-side photos of the
original pin and the fake. They look similar, right down to the
packaging. In this lawsuit, the odds don't seem to be in
Yagoozon's favor.
Bork remembered
12/20/12
By Dan Brillman
Judge Robert Bork's death on Wednesday is proving to be a
Rorschach test for legal talking heads, who are weighing in on
the controversial judge. Many accounts recall that Bork was
mostly famous for being rejected as a Supreme Court nominee in
1987 and that he gave rise to the verb "to bork" (to obstruct
someone by systematically defaming or vilifying them, according
to the Oxford English Dictionary). But after that, all bets are
off.
Seventh Circuit Court of Appeals Judge Richard Posner
praises Bork as "probably the best qualified nominee for the
Supreme Court in the last 71 years" but concedes that the U.S.
Senate was right to have rejected his nomination, given Bork's
extreme politics. "I wouldn't criticize people who believe that
quality has to be traded off against social consequences of
Supreme Court appointments," Posner says.
Jeffrey Toobin opens his observations in The New Yorker more
caustically, writing that Bork "was an unrepentant reactionary
who was on the wrong side of every major legal controversy of
the twentieth century. The fifty-eight senators who voted
against Bork honored themselves, and the Constitution." Toobin
goes even deeper in his disdain, calling Bork's role in
Watergate's so-called Saturday Night Massacre an "enduring
shame."
Federalist Society co-founder Steven Calabresi in the
National Review positions the jurist as one of the godfathers of
originalist thought. Bork "laid the intellectual groundwork for
the philosophies of Justices Antonin Scalia and Clarence
Thomas," writes Calabresi, who was a student of the judge's at
Yale Law School. He also lauds his former prof's "integrity" in
holding the Justice Department together during Watergate.
In The Daily Beast, Paul Campos takes the opportunity to
bash Scalia's originalist philosophy as a cover for a rampant
conservative activist agenda. Isn't it good, Campos says, we
have one Scalia and not two?
Some commentators, including Randy Barnett at Volokh and
Ramesh Ponnuru at the National Review, have homed in on a
comment Bork made about the Ninth Amendment during his
confirmation hearings. In describing the amendment, which
addresses the rights of U.S. citizens that aren't laid out
specifically in the Constitution, Bork controversially used an
ink blot metaphor and suggested the amendment was useless: "
(I)f you had an amendment that says 'Congress shall make no' and
then there is an ink blot ... I do not think the court can make
up what might be under the ink blot," Bork told the judiciary.
Can't get enough Bork? C-Span has a collection of speeches
and interviews, including a video of his fateful Senate
confirmation hearing.
Greek tragedy
12/20/12
By Eileen Daspin
In a move that reflects a tougher approach to fraternity
hazing rituals, the police in DeKalb, Illinois, issued arrest
warrants this week for 22 students in the death of David
Bogenberger, a student at Northern Illinois University, reports
The New York Times. Bogenberger died in November after consuming
about 20 alcoholic drinks in two hours during a Pi Kappa Alpha
party in which he and other pledges were required to drink cups
of liquor and answer questions about the fraternity's history.
"This wasn't just a spontaneous party, it wasn't something that
kind of happened through the course of the night," Lt. Jason
Leverton of the DeKalb police told the Times. "It was very much
preplanned, it was predetermined that the goal here was to get
the pledges extremely intoxicated."
Five fraternity leaders were charged with felony hazing
charges, which carry a sentence of one to three years in prison
and a $25,000 fine. Seventeen other Pi Kappa Alpha members were
also charged with misdemeanors. According to the newspaper, the
arrests "amount to one of the largest numbers of people to be
criminally charged in a single college hazing episode,
reflecting recent efforts by the police and prosecutors around
the country to enforce anti-hazing laws more aggressively."
Movie, movie
12/20/12
By Erin Geiger Smith
Just seen a movie on Netflix or iTunes that you want to
share with a friend online? Until now that's been almost
impossible, thanks to a 1988 law preventing companies from
disclosing a customer's video-watching history. If a law
approved by the House of Representatives on Tuesday makes it
through the Senate, however, video-streaming services will be
allowed to get a user's consent to share that information.
As Mashable points out, the applicable 1988 law, the Video
Privacy Protection Act, came about after a news outlet obtained
the video-rental history of U.S. Supreme Court nominee Robert
Bork, leading to a public outcry over what many perceived to be
an invasion of privacy. (See Summary Judgments, No. 4, whichdiscusses the history of the act.) The VPPA prevents on-demand
services from letting users share what they're watching with
friends online, although the amendment would change that, at
least once the company had gotten your consent.
The man who inspired the VPPA, Bork, died on Wednesday at
the age of 85, as Reuters reported. His Supreme Court nomination
was rejected, although his hearings are often pointed to as the
start of what has become a highly contentious judicial
confirmation process.
Summary Judgments for December 19
Summary Judgments for December 18
Summary Judgments for December 17
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