Before the advent of the Internet, when a person passed away or became incapacitated, family members or the executor of the Will would located the decedent’s personal and financial information in folders other tangible records found throughout the home. Photographs, letters, account information, etc. were all located physically in print. Today, you are more likely to find personal effects on the decedent’s social media accounts, like Facebook. Does your family know your password? In most cases, they do not.

While Facebook has terms of use for these situations, they may not accomplish what the decedent’s desires. As a result, people are now writing what is being called a Social Media Will which outlines the ownership (or deletion) of online information about them after their death. This can also be accomplished through your regular will or trust. As more and more people move their personal and financial information online protecting digital assets is becoming increasingly important. It is not only important for your family – we’ve all heard of cases where a “friend suggestion” of a deceased person pops up reopening the hurt, but also the risk of personal financial information to be obtained by hackers – this is especially likely when the information is no longer being monitored because of the owner’s death.


As I discussed in an earlier blog post, the Health Care Law is not constitutional. Our Constitution provides limits on what the federal government can legislate. The enumerated powers are found in Article 1, Section 8. These are the only areas within which the federal government can legislate. Unfortunately, we are in the situation we are in today (with massive amounts of unconstitutional federal regulations) because the Supreme Court declared the Social Security Act constitutional in three (3) decisions passed down on May 24, 1937. In coming to the conclusion that the Social Security Act was constitutional, it did a complete about-face from over 100 years of rulings. Prior to these 3 decisions on Social Security (Helvering v. Davis, Stewart Machine v. Davis, and Carmichael v. Southern Coal and Coke), the Supreme Court routinely struck down legislation which went beyond the powers granted to the federal government in Article 1, Section 8 of the Constitution.  The Court rejected much of the New Deal and repeatedly held that the federal government did not have the authority under the Constitution to set up social welfare programs, or tax individuals in an effort to get them to comply with a legislative desire. The pre-May 24, 1937 decisions were consistent the intent of the Founding Fathers. The wording of the Constitution makes it clear that the federal government does not have the power to intervene in economic or state matters and the reservation clause (Tenth Amendment) reinforces this limit on the power of the federal government – “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Why did the court change its mind on May 24, 1937? When Roosevelt didn’t get his way concerning his planned expansion of federal power (the “New Deal”) he decided the Supreme Court was too old to make decisions. To relieve them of this burden, he proposed that new Justices should be added for every current Justice over the age of 70. Although this legislation was not passed, it clearly signaled to the Supreme Court (or at least a majority on the Supreme Court) that it had better get in line and support the President’s desire to expand federal power and stamp its approval on the New Deal.

When you read the 3 decisions that came out on that day, you see how ridiculous the arguments are. The Court concluded that the Social Security Act was constitutional because of societal conditions at the time (i.e., the Great Depression). In other words, because the States were unable to handle the issue of the societal ills of the unemployed elderly, the federal government had to step in and provide welfare to them. This is the first time we hear that the Constitution does allow the federal government to spend for the “general welfare” and that the discretion to determine where to draw the line between general welfare and particular welfare rested with Congress, unless the choice is arbitrary or capricious (Helvering). What was formerly an introductory phrase to the list of actual areas in which the federal government could pass laws, was now a new area in itself: general welfare. It is clear from the written opinion in Helvering that Cardoza had to bend over backwards to reach this conclusion. He spends an inordinate amount of time discussing the Great Depression and characterizing unemployment not as a “particular” ill, but a “general” one. In addition, with respect to taxing as a way to get individuals and states to bend to the will of the federal government, the Court indicates that just because the excise taxes were expected to coerce the states into some type of action does not make the tax invalid. The court seems to imply that if the means (taxing in order to coerce the states to adopt conforming regulations) accomplishes a national end (general welfare), then it must be valid (Stewart Machine).

It is my fervent hope that our current Supreme Court will correct this long line of holdings by explaining how the actual wording of Article 1, Section 8 and the reservation clause (contained in the 10th Amendment) provide a limit on federal government. In addition, they have an opportunity to reclaim the true meaning of the word “commerce” in the Constitution as Judge Roger Vinson of Federal District Court in Pensacola, Florida did in his very well-worded decision striking down the Health Care Law.

Earlier this year, an Akron Ohio Mom (Kelly William-Bolar) was ordered to jail for allegedly “falsifying documents” that permitted her daughters to attend a school in the next district over. Not fined, jailed! She used her father’s address for residency purposes because she did not want her daughters attending a presumably dangerous school which, according to a CNN report, had “only met 4 of the 26 standards of the Ohio Department of Education Report Card.” She wanted her daughters to receive a quality education in a safe environment, and knew that would not happen in the school located closest to her home.

There are so many thing wrong with this decision, I don’t know where to begin.

1. According to the school’s superintendent, Brain Poe, “If you’re paying taxes on a home here… those dollars need to stay home with our students.” What if you are not paying taxes on a home, what if you live in an apartment in his district? Does that mean apartment dwellers are ineligible to attend his schools? Does it mean that if you do not have school-age children you do not have to pay the portion fo the property taxes attributable to the schools in your district? Seriously Poe?

2. The Mom was alleged to have “defrauded” the school district out of $30,000. If the schools are equal throughout the state, why would this one cost $30,000 more than the one that her daughters were to attend by law? This doesn’t make any sense.

3. Why are school districts who claim to be so desperate for money hiring private investigators to torment private citizens? Is there no right of privacy left in the United States? This school, a governmental agency, was spying on a private citizen. Didn’t the Judge in this case even remember that this Mom has a Constitutional right to privacy and certainly not to be spied on by the government. Doesn’t the School District have liability here for a warrantless search and privacy violations?  

4. The Supreme Court of Ohio has declared the way public schools there are financed is unconstitutional FOUR times. Does this case not prove that schools in poor neighborhoods are NOT equal to those in wealthier districts? How is this equal treatment under the law?

5. Finally, I can’t believe how obtuse this Judge was. First the Honorable Patricia Cosgrove indicates that SHE must follow the law as written and send this woman to jail for violating the law and then sends a letter to the State Department of Education indicating that William-Bolar’s teaching certificate should not be pulled. In other words, don’t uphold the law like I did. She actually has the nerve to tell another branch of government to break the law because of extenuating circumstances. If Cosgrove had been thinking when she handed down the sentence, she would have followed the intent of the law and taking into consideration the equities of the case.

Did she not see the irony of sending that letter? Worse yet, did she forget the Constitutional rights of this Mom?

On March 15, 2011, the FTC reported that it entered into the first settlement agreement under the new FTC Guidelines prohibiting fake reviews. Essentially, the Guidelines provide that when someone posts a positive review of a service or product and that person is either connected to the seller receives some sort of compensation for the positive review, the “material connection” between the reviewer and the seller of the product or service must be disclosed. In this case, Legacy Learning, a company which provides guitar lessons on DVDs, had an affiliate review program which compensated bloggers and other online publishers for posting positive reviews about its program. The company agreed to pay a $250,000 penalty for its actions.

I wonder if the FTC is monitoring amazon.com. I was just reading recently about an author who was artificially inflating his sales ratings by buying his own book and posting fake positive reviews. Not only is this morally reprehensible, but it also violates the “new” FTC Guidelines which went into effect in December 2009. I wonder how many businesses engage in this conduct – posting fake reviews on sites like angieslist.com and urbanspoon.com?

The District Court in Florida recently declared the new Health Care Law unconstitutional. Of course, this decision will still need to be appealed to the Court of Appeals and the Supreme Court, but the Judge carefully outlined the reasons for his declaration in the written opinion. Although I would have listed a few more reasons, I was impressed with some of the rationales he listed. I especially liked the fact that he went back to the actual language in the Constitution as it was intended when written. I know that is not the popular way to interpret the Constitution, but it does make sense. To summarize: Interstate commerce means interstate trade. Trade means the movement of goods in exchange for money. Insurance does in no way fall within this category. Insurance is a service, not a physical product which can travel in a truck on I-35 between Texas and Illinois. Basically, despite all of the reasons you may have heard about why this law is unconstitutional, the best one is the simplest one: it is not authorized under Section 1 Article 8 – the section which grants Congress the power to pass laws. The powers in this Article were enumerated in order to LIMIT federal government. As you can imagine this was a huge concern to our founding fathers.
There has been some talk of repealing the Health Care Act, but I hope this doesn’t happen. I would like to see the Supreme Court rule on this issue. If they do interpret the Constitution the way it was intended, they will find that Congress did not have the authority to pass this Act and it would open the door for States to bring other lawsuits concerning federal laws outside the purview of Article 1, Section 8, of the Constitution. I can envision California taking on the establishment of the DEA, for example, or the passing of laws that criminalized the possession of marijuana and made it a federal offense under the Commerce Clause. (Remember, police power is reserved to the States so the only way these laws could be passed and these agencies established was through a tenuous connection to interstate commerce. Of course, the commerce clause wasn’t intended to criminalize trade. Well, at least the sale of marijuana would fall under the definition of trade. The problem is that on the one hand Congress wants to force citizens to buy the services of for-profit corporations and on the other wants to prevent citizens from purchasing a plant. Neither type of law is authorized in the Constitution. Of course, our founding fathers were not averse to marijuana – it is believed that George Washington grew hemp on his farm.)
The bottom line is that the federal government has gotten out of control of the people. It is no longer acting as a government for the people, but rather as a government for more government. Congress is passing laws in areas beyond what the Constitution permits. This is not a right v. left issue or a liberal v. conservative issue. It is simply a matter of whether or not the States are going to permit the Federal government to continue down this road. It is up to us as citizens to elect state officials who will stand up to federal encroachment. The best way to get our country back and our economy out of the gutter is to vote. Vote in your state elections – they really matter.

The Supreme Court has decided in American Needle v. the NFL, No. 08-661, that the National Football League Properties (NFLP) which was formed to develop, license, and market fan gear was not a single entity for antitrust purposes. In other words, the 32 teams could be violating anti-trust laws by licensing fan gear solely to Reebok in restraint of trade, which could have the effect of dampening competition. This case was brought by a small hat manufacturer whose license to sell football hats was not renewed when the NFLP gave Reebok the business for all 32 teams. This case was sent back to the trial court for further argument. As I wrote previously, Drew Brees argued very strongly against the NFLP being considered a single entity because of the potential for the NFLP getting around antitrust laws with respect to free agency, not just in the selling of hats. This seems to be the right decision as 32 teams which in fact compete with each other not just on the field, but also for fans, could carry a lot of clout in awarding contracts. By giving one license out to manufacturer fan gear, they prevented other manufacturers from competing with Reebok and keeping the prices down for all fans. Obviously, the NFLP has an interest in monitoring the licenses, as they receive royalties from these manufacturers, but it serves no purpose to limit the manufacturing and distribution to one entity.

Another case I recently commented on has been decided. The Arkansas Mom who made comments on her son’s Facebook page as though he had made them and then changed his password so he could no longer access his account was convicted of misdemeanor harassment on May 27, 2010. The Judge ordered the Mom to pay a $435 fine and attend anger-management and parenting classes. The comments on my previous post seemed to indicate that most felt it was not ok for parents to add or delete content from their children’s facebook account. Given that this mother in particular did not have custody of her son, used profanity with him and on his page, and changed his password; I stick with my first impression that this mother has problems with communication. I have a daughter with a Facebook account. When I see something on there that I think may present an issue, I call her attention to it and explain how others may view it. I leave it up to her whether or not to remove or change it, but the important part is I talk to her about it. Children sometime make decisions or post things impulsively and then forget about them. Most children will understand if you explain to them why their posting may not be appropriate. If this mother had truly wanted to “exercise supervision over her son’s Internet activities” as she claimed, there are a lot better ways to do it. I am happy this Judge explained to this woman why her actions were so inappropriate – he parented her well.

Earlier this year I commented on the case of Buono v. Salazar, SC 08-427 4-28-10 (the WWI Memorial case). It seemed from questions at oral argument that only Alito and Scalia were for reversing this case. However, the Court in a 5-4 split did recently reverse the lower court’s decision and allowed the monument to remain. It indicated that the lower court erred in invalidating the statute which allowed the transfer of land so that the monument would be transferred to private property. The Justices’ positions were as follows: Kennedy, J., wrote the majority opinion. Roberts filed a concurring opinion. Alito filed a concurring opinion in part. Scalia filed his own concurring opinion which Thomas joined. Stevens filed a dissenting opinion. Ginsburg and Sotomayor joined Stevens, and Breyer filed his own dissenting opinion.  I was very interested in seeing how Sotomayor would rule, but since she simply joined in the dissent, the only thing we can be sure of is that she felt the establishment clause had been violated.

The Court ruled that the “[p]lacement of the cross on Government-owned land was not an attempt to set the imprimatur of the state on a particular creed. Rather, those who erected the cross intended simply to honor our Nation’s fallen soldiers.”  In addition, the cross has served as a memorial for almost 70 years. The court indicated that the statute should not have been invalidated because it was a legitimate solution to the problem of taking down a monument dedicated to those who died in WWI. The statute simply allowed the monument to remain by permitting a land transfer to the Veterans’ of Foreign Wars who initially installed the monument back in 1934.

In his dissent, Stevens essentially stated that the cross was a purely “sectarian message” and that the monument violated the establishment clause and the statute transferring it to private property was an “unambiguous endorsement of a sectarian message.” Given that 6 out of 9 Justices wrote their own opinions, it seems that this issue has not been clearly decided, but since they were only ruling on a statute, rather than all religious themed memorials, it does not seem that this case will have much impact on future issues.

In the Supreme Court case of Renco V. Lett, No. 09-338 (decided May 3, 2010) the Court held that no double jeopardy occurred when the defendant was retried on a murder charge after his first trial resulted in a hung jury. Despite the short amount of time the jury spent deliberating (4 hours), seven questions were sent to the Judge. It seems that the defendant was trying to indicate that because the Judge did not force the jury to go back and deliberate until they reached a verdict, the benefit of the doubt should go to him. In other words, he believed that the jury would have dismissed the case or decided on a guilty verdict for a lesser charge if they had been forced to deliberate more. The flaw here is that he didn’t object to the hung jury at the first trial, but at the second – where the jury found him guilty in less than 4 hours. It seems the Supreme Court was correct in affirming the Michigan State Supreme Court’s determination that the defendant’s rights were not violated and double jeopardy had not occurred.

In the Supreme Court case of Merck v. Reynolds, No. 08-905 (U.S.), the court affirmed the lower court’s holding that the statute of limitations did not begin running when questions about the side effects of Vioxx came to light. The plaintiffs, who owned Merck stock, sued Merck, the maker of Vioxx, for failing to properly inform or, alternatively, concealing from its investors the serious risks associated with the use of Vioxx. Apparently it doubled the risk for heart attacks, strokes, and death in those who took it for more than 18 months which Merck allegedly knew back in 2001. (Vioxx was withdrawn from the market by Merck in 2004).

The Supreme Court ruled that in general the 2-year statute of limitations for securities fraud does begin to run until the plaintiff actually discovers or reasonably should have discovered that the defendant had committed fraud. This ruling will permit the Merck investors to continue their securities fraud suit in federal court. It is a significant rule given all of the recent allegations of fraud in the private sector. It essentially prevents companies from running out the statute of limitations by concealing its fraud after problems begin to go public. This will allow investor suits to be brought in situations where the actual fraud does not come out until after problems with the subject product or service are made public. It would be unfair to force plaintiffs to file at the first sign of trouble, especially without having access to all of the facts that the defendant corporation has.