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.
Posted in Supreme Court | Tagged Buono v. Salazar, War Memorial | Leave a Comment »
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.
Posted in Supreme Court, Uncategorized | Tagged double jeopardy, Renco v. Lett | 3 Comments »
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.
Posted in Supreme Court | Tagged merck, securities fraud, statute of limitations, vioxx | 3 Comments »
In the case of US v. Stevens which was decided this week by the Supreme Court, a federal statute banning the making or sale of animal cruelty videos was declared unconstitutional. The statute at issue was intended to criminalize “crush videos” (which I won’t describe here but depict horrendous animal cruelty). While there are some exceptions to the right of free speech – most notably the one for obscenity – the Court indicated that animal cruelty should not be an additional exception. In other words, the statute attempted to criminalize speech which is protected under the First Amendment.
Despite the free speech analysis in the decision, I think the bigger issue is government encroachment on individual’s rights through the passage of federal criminal laws. Under the Bill of Rights, the federal government does not have police power; it was reserved to the states. Thus, the federal government does not have Constitutional authority to make and enforce criminal laws against its own citizens (except in a few very limited circumstances – such as regarding the military). While the result is right in US v. Stevens; it is for 10th Amendment reasons as opposed to 1st Amendment reasons. I do believe that videos depicting animal cruelty are obscene and the making and distribution thereof should be criminalized, but this should be done at the state level.
This 10th Amendment issue is going to come up more and more frequently now that people are starting to question the extent of federal legislation in this country. I was hoping this opinion would have given us a clue as to how this Court will rule when a 10th Amendment argument is made to it. I imagine it will come up with respect to the federal marijuana laws and the Health Care Reform Bill. I for one will be looking at the wording of future Supreme Court decisions to see if I can determine how they will resolve this issue.
Posted in Supreme Court | Tagged animal cruelty, Supreme Court, us v. stevens | 8 Comments »
If any of you have ever watched Damages on TV you probably wonder where they come up with their plot lines. (If you haven’t seen it, you should – but watch it from the beginning.) I often tell people they wouldn’t believe half of the insane stuff that goes on in lawsuits. Anyway, in a suit against Chevron concerning their alleged polluting of an Ecuadorean rain forest, it was discovered that one of the expert witnesses had filed fraudulent reports with the court. The expert was hired by the plaintiffs to oversee water and soil tests, but had to return to the US before the reports were prepared. In a multi-BILLION dollar suit, the expert witness essentially signed a blank report that he allegedly believed would be filled in with the actual results. Imagine his surprise when although he recalled finding no significant contamination, the reports with his signature on them indicated that the sites were significantly impacted and required remediation. The “mistake” was discovered when the expert’s name was misspelled on his own correspondence with the court. This apparently alerted Chevron’s attorneys that something was not quite right with this expert’s reports. Can you believe that some guy was actually paid to oversee reports in a case of this magnitude and doesn’t even bother to make sure he signs the actual results? Now that I think of it, this sounds more like an episode of the Simpsons.
Posted in Law | Tagged Chevron, Ecuadorean rain forest, expert witness | 16 Comments »
I am very interested in following the Arkansas case of a 16-year-old boy who filed a complaint with the police resulting in a misdemeanor charge of harassment against his mother for making changes on his Facebook account and then changing his password so he could no longer access it. A similar issue has come up a few times in other contexts around here. A friend of mine has a daughter who goes on to his Facebook account and writes flattering comments about herself as though her Dad had posted them. It is very cute – and very obvious. Another friend got angry with her son who had gone on to her Facebook account and deleted all of the pictures she had posted of him because he didn’t like the pictures. His Mom reposted them and changed her password. I felt uncomfortable with this. Should children have the right to prevent photographs of them from being accessible on the internet? In the original case, I should mention that the Arkansas mother does not have custody of her son and removed content from his account because she didn’t like it. The fact that she essentially locked him out of the account by changing his password indicates that she is not very adept at communication. Rather than speaking with him about the appropriateness of the posts, she simply deleted them. Would you go into your teenager’s Facebook account and modify it? Would you change the password to keep him out? Under what circumstances? If you are a teen, would you go into your parent’s Facebook account and make changes or delete photos or references to you that you did not like? From a legal perspective there is something called criminal impersonation (which requirements vary from state to state), but essentially impersonating someone can be a crime under certain circumstances. If someone were to go onto your Facebook account and make changes, how would you respond?
Posted in Uncategorized | Tagged Facebook, harassment, privacy | 13 Comments »
You’ve probably seen the barrage of commercials for the BRCA (pronounced “brack”) test for women. It tests for the BRCA gene which indicates that a woman is 3 to 7 times more likely than the rest of the population to develop breast cancer. Last week a New York federal court invalidated the patent held by Myriad Genetics for this BRCA gene. Essentially, by establishing ownership of the gene through the US Patent and Trademark Office, Myriad has successfully prevented all others from testing for this mutation in the human body since 1996. The fact that the patents were granted for genes and gene mutations in the first place is very questionable. The ACLU sued Myriad Genetics on behalf of several patients and research scientists because the company’s ownership of two gene mutations resulted in women being unable to obtain a second opinion because only Myriad could perform the test. It also prevented scientists from further studying the gene. This decision puts other patents on genes in jeopardy (the ACLU estimates that some 2000 patents are currently held by private corporations on human genes). Although it is likely that this decision will be appealed, as Myriad is making $3,500 – $4,000 a pop on the test, in my opinion equity requires that genes and gene mutations be excluded from protection so that women may receive proper testing before undergoing radical preventative surgery. Corporations have no business owning any portions of the human body for any reason.
Posted in Uncategorized | 8 Comments »
New technology has made its way into campaign ads. A group that wants to “counter-balance” Meg Whitmans’ financial advantage in the California Governor race has come out with an advertisement using a computer-generated avatar for Meg named “Meg-a-tar.” Meg is the former CEO of Ebay. Although the avatar is not flattering and speaks poorly about Meg Whitman, I’m not sure if it will hurt her campaign or bring about more interest in her campaign among younger voters. On the other hand, this creation may breach Meg’s right of publicity. Every person has the right to control the use of his or her own likeness, especially for commercial purposes. These cases usually arise in product endorsement situations, but one could make the argument that only Meg Whitman has the right to create and publish a Meg-a-tar to endorse her own candidacy and that it is actually a breach of this right to use a Meg-a-tar without her consent. I don’t think I would want a Kim-a-tar out there espousing rhetoric that I did not approve. Let me know if you’ve seen the clip, and if so, how do you think Meg should respond?
Posted in Law | Tagged California governor, meg whitman, meg-a-tar, right of publicity | 4 Comments »
Disney acquired Marvel Entertainment last year for quite a chunk of change. One of the most important assets of Marvel is its superhero collection, many of which were developed by Jack Kirby who has since passed away. The heirs of Kirby sent out a notice of copyright termination under Section 304(c) of the Copyright Act to both Marvel and Disney to have the copyrights in their father’s work revert to them. The Copyright Act permits the heirs to terminate the copyrights effective 56 years after the establishment of the copyright – which apparently occurred between 1958 and 1963 when the comics were originally published. On the west coast, Kirby’s children have asked the court for a declaratory judgment acknowledging the validity of the termination notices, spelling out the profit sharing going forward on any co-owned works, the return of their father’s original artwork, and to give their father credit for the movies based on his creations (The Incredible Hulk and X-Men Origins) in the case of Kirby v. Marvel, et. al. SACV10-00289 CJC (C.D. Cal. 2010). On the east coast, in the case of Marvel v. Kirby, 2010-cv-141, (S.D. NY 2010), Marvel is suing the heirs to have the notices declared invalid. Although Marvel claims that its relationship with Jack Kirby was a “work-for-hire,” the heirs allege that Kirby worked out of his home without a written agreement. If this is true, the relationship was most definitely not a work for hire situation. A work-for-hire requires either an actual employment relationship or a written agreement transferring the ownership in works created by an independent contractor. Since Marvel could have easily disposed of both cases by presenting a copy of such a written agreement or proof of employment, one can assume that they are unable to document their position. Since I can’t imagine that Disney was unaware of the ability of Kirby’s heirs to terminate the copyright, my guess is that as a part of the $4.3 billion dollar transaction, Marvel agreed to indemnify Disney for these claims by Kirby’s heirs. (To indemnify means that Marvel will defend Disney at Marvel’s cost and be responsible for any damage award against Disney). This is why Marvel filed the suit instead of Disney. Regardless, the Kirby children have requested a jury trial. When the jury hears how much Marvel made off of Kirby’s work, someone will need to get their checkbook out. Something tells me it won’t be Disney.
Posted in Law, Uncategorized | Tagged copyright, disney, kirby, marvel | 13 Comments »
In the eyes of the law 