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Ninth Circuit Quashes Bush/Obama ‘State Secrets’ Expansion

April 28th, 2009 by Bryan Lieb

Before the Bush administration, the ’state secrets’ doctrine was used to exclude certain bits of evidence from trials if the judge agreed with the Executive Branch that damage to national security could result.

The Bush administration attempted to expand the doctrine so that whole lawsuits could be dismissed on the Executive’s motion, with the Executive as the sole arbiter of whether national security was at risk – even when the complaint was that the Executive’s conduct was illegal.
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School Bullying: Worse Than You Think

April 24th, 2009 by Bryan Lieb

Vicious, incessant bullying in school — primary school, 5th grade in this horrible case — is certainly a massively underestimated problem in this country, even with the substantial attention the issue has received in recent years. I wanted to rebroadcast this CNN story even with whatever meager signal this blog generates, because I think the more people that hear about this, the better — the more likely some significant changes can be instituted.  

On April 16, eleven year-old Jaheem Herrera hanged himself in his closet and was found dead by his mother and young sisters. Jaheem made A’s and B’s in school. He was by any standard a cute kid (CNN photo, left). He had a best friend who sympathized with him over the bullying. He told his mother about it, and she had complained to Dunaire Elementary School administrators many times.

But Jaheem was repetitively called ugly, gay, snitch, and ”virgin” (latched on to by the bullies due to the happenstance that his family was from the Virgin Islands). The verbal abuse was predictably escalated to physical abuse — Jaheem’s 10 year-old sister said that he was choked in the bathroom. The Atlanta Journal Constitution’s extensive reporting on the incident notes:

In the wake of Jaheem’s suicide, other students’ parents have come forward to describe other alleged acts of violence at Dunaire. Some parents said their children were the victims of beatings with buckles and chokings. 

Yet the school was reportedly a model with regard to anti-bullying policy (from the CNN piece):

Allegations of such severe bullying surprises experts familiar with the school district. It’s anti-bullying program was considered exemplary and includes programs to raise awareness and a specially trained liaison. Students are even asked to sign a no-bullying pledge.

Obviously, these policy trappings are not enough. Or badly executed. Or ignored down in the trenches. Conscientious vigilance and monitoring are what is required of the adult administrators and teachers on the scene. It shouldn’t be that difficult to spot and root out this viciousness if adult personnel are not turning a blind eye, taking a ‘boys will be boys’ attitude.

Jaheem Herrera’s case mirrors that of a Massachusetts boy, Carl Walker-Hoover, also eleven, who hanged himself to death after incessant taunting and bullying at school just a week prior to Herrera’s suicide. Walker-Hoover was also repeatedly called “gay,” among other pejoratives.

One expert said that, “Anti-gay language is really the ultimate weapon for a bully who wants to degrade his or her peers.” Needless to say, neither of these pre-pubescent children was actually a homosexual.

My thought on this is that it’s pervasive in our society. According to a study quoted by CNN, 65 percent of teens report they are bullied each year, and most believe adults can’t help them. Now I understand that only extremely rarely does this lead to suicide. But no child should have to endure a hellish environment of incessant verbal abuse (and the ever present threat of physical abuse) at school. An elevated level of motivated vigilance by school personnel – and significant discipline, including removal, of discovered bullies — can go a long way to solve this problem, in addition to standard anti-bullying campaigns.

If you have school-age children, please be sensitive to this issue and be prepared to act. If this sort of abuse can occur right under the nose of the administration at a “model” school, imagine what it’s like in schools that are “just average.”

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Obama Releases Four Bush-OLC Torture Memos

April 17th, 2009 by Bryan Lieb

On April 16, in response to a Freedom of Information Act lawsuit by the American Civil Liberties Union, President Obama ordered the release of four Bush-era Office of Legal Council memos dealing heavily with the techniques and attempted legal rationalization of the “enhanced interrogation program” established by the Bush administration and used on “high value detainees.”

Some high-ranking members of the nation’s intelligence services lobbied Obama not to release the memos, or to do so in heavily redacted form. Obama released the memos almost entirely unredacted, but promised that CIA personnel who had in good faith relied on the executive branch Office of Legal Council’s advice that the techniques were legal, would not be prosecuted. This is widely regarded not to rule out prosecution of those who authorized and ordered the use of the techniques. 

The recently leaked International Committee of the Red Cross torture report (complied by cross-confirmation of prisoner interviews, and portrayed by some critics as prisoners’ tall tales) was confirmed nearly line for line by the Bush OLC memos.

The four memos are available for download (pdf) here.

Many reactions from political and legal commentators on the left and right are collected by The Atlantic’s Andrew Sullivan, here (pt 1) (pt 2) (pt 3):

The redaction (blacking-out) of the memos, where present, is sometimes poorly executed. As I read over the memos last night, i noticed several instances of a year being blacked out, followed immediately by the year being visible in a reference to the same document.

Dafna Linzer at ProPublica spotted a more significant error (or intentional slip?) in the redactions, where the name of ‘ghost detainee’ Hassan Ghul, was inadvertently left visible. Ghul’s whereabouts are unknown since 2004. He was not transferred to Guantanamo Bay with 14 “high value” detainees in 2007 as expected by humanitarian groups.

Read Linzer’s article here.

Clearly, this is a huge legal event, and a political firestorm in the making.

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Iowa Supreme Court Rules On Same-Sex Marriage

April 3rd, 2009 by Bryan Lieb

CNN is reporting a unanimous decision by the Iowa Supreme Court, holding that a state law prohibiting same-sex marriage violates the equal protection clause of the Iowa Constitution. Iowa joins Massachusetts and Connecticut in allowing same-sex marriages. Read the court’s opinion, here. On page 63 of the opinion, the Court takes the unusual step of addressing an argument “left unspoken” by the government, that being religious opposition to same-sex marriage.

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“Resurrection Clause” in Plea Deal

March 31st, 2009 by Bryan Lieb

A sad testament to the power of indoctrination.

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Cali Justices Unreceptive to Prop 8 Reversal

March 6th, 2009 by Bryan Lieb

The LA Times reports on yesterday’s Prop 8 oral arguments before the California Supreme Court:

The California Supreme Court strongly indicated Thursday it would rule that Proposition 8 validly abolished the right for gays to marry but would allow same-sex couples who wed before the November election to remain legally married.

Court-watchers gleaned the above prediction from the attitudes, questions and statements of the Justices as they interacted with lawyers at the hearing.

The court’s written opinion is expected within 90 days.

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Prop 8 On Trial in California

March 5th, 2009 by Bryan Lieb

Good report at Hullabaloo.

There are three questions at play:

• Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution?

• Does Proposition 8 violate the separation of powers doctrine under the California Constitution?

• If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?

Oral arguments are in progress this morning.

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Subway Platform Safety: A Little Railing Please?

February 20th, 2009 by Bryan Lieb

CNN reports a New York jury awarded $2.33 million to a man who lost his leg after drunkenly falling into the path of an oncoming subway train in Manhattan.

Seems to me a little railing would go a long way here. With the entrances through the barrier synced with the actual doors on the train?

Search: gates or rails at subway stations? 

“Rails at subway stations” was a miss, but I struck gold with “gates on subway platforms.”

So I’m not the first person to think of this. In fact the barriers I am imagining are called either “platform screen doors” or ”platform edge doors” depending on whether or not they extend all the way to the ceiling. There are some nice pics at the above link, and especially here (mouse over these pics to expand). Doubtless these things save numerous lives.

There has been one death attributed to safety doors. But that was in Asia where subway culture resembles a contact sport (click for must-see video).

If you find yourself mourning the absence of handy platform screen doors at your local tube stop, here is a nifty subway station survival guide.

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Jones Day’s Strange War on Links

February 19th, 2009 by Bryan Lieb

I came across a disturbing internet/law story on Slate. Definitely a big issue for online reporting.

Jones Day is an international law firm (2,300+ lawyers). BlockShopper is a real estate news website.

According to the Slate story, Jones Day sued BlockShopper for trademark infringement when BlockShopper reported that two Jones Day lawyers had purchased certain real estate. The heart of Jones Day’s complaint was that Blockshopper had formatted the lawyers’ names with hyperlinks to the lawyers’ bios on the Jones Day website – a type of formatting you see everywhere online (I’m using it in the three hyperlinks above).  

Trademark infringement is when you use someone’s trademark (or something confusingly similar) to sell your own products. Jones Day argued that using the lawyers’ hyperlinked names would make people think Jones Day was associated with BlockShopper. How and why, I am at a loss to explain. Per Slate:

The idea that readers of a real estate news site would somehow be confused by links to Jones Day, on the other hand, shouldn’t have passed the straight-face test. One legal blogger proposed that the attorneys who brought the suit take ethics classes. Paul Alan Levy of Public Citizen described the lawsuit as a “new entry in the contest for ‘grossest abuse of trademark law to suppress speech the plaintiff doesn’t like.’ ” The digital rights groups Public Citizen, Electronic Frontier Foundation, Citizen Media Law Project, and Public Knowledge tried to file a friend-of-the-court brief asking for the case to be dismissed.

Blockshopper fought the law firm for a while – wracking up “six figures” (!!!) in legal bills – but settled after a federal judge denied Blockshopper’s motion for summary judgment. The settlement is even more crazy than the lawsuit. Get this:

[T]he real estate site said it agreed to change how it links to Jones Day. BlockShopper will no longer use the names of Jones Days attorneys as anchor text. Instead, it will use the full and cumbersome URL. In other words, Timpone said, instead of posting “Tiedt is an associate,” the site will write “Tiedt (http://www.jonesday.com/jtiedt/) is an associate.” (The agreement also calls on BlockShopper to say that the lawyer in question is employed at Jones Day and that more information about the attorney is on the firm’s Web site.)

Talk about form over function! It changes nothing. Nothing! But it means the law firm controls how BlockShopper writes about it. What if lots of major companies dictated to news organizations the details of how hyperlinks must be formatted, with no consistent standard? It would be extremely burdensome trying to write a story while keeping all the requirements straight. I don’t think this type of restriction has a chance in court, and it’s too bad the case didn’t go all the way to a verdict. I’ll be interested to see if this sort of thing comes up again any time soon.

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Obama Portraitist Launches Copyright Case

February 10th, 2009 by Bryan Lieb

Artist Shepard Fairey composed a stylized, red-white-and-blue portrait of Barack Obama based on a photograph taken by Mannie Garcia for the Associated Press. The portrait became famous during the 2008 presidential campaign. The AP contacted Fairey, saying Fairey had violated AP’s copyright on the pic, and suggested a deal be cut for AP’s compensation. Fairey said no, claiming the “fair use” exception to copyright infringement, and sued AP in federal court asking for a declaratory judgment that the portrait does not violate AP’s copyright. The photographer, Garcia, now says that the copyright on the photo is his, not AP’s, due to his contract with AP at the time. The New York Times has a good article on the case, here

Lest I be accused of copyright violation and have to raise the Fair Use defense, I’ll just admit the above compilation is an Associated Press image, and the first pic to ever appear on the USLegal Blog. Yay.

You can read all about the Fair Use defense in Wikipedia, and make up your mind. My vote is: fair use, no infringement. Will update when the case concludes.

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