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Old Declaration, New Constitution – all in one weekend!

February 10, 2010 by kimberlyhouser

This past weekend I went to the LBJ Library & Museum on the University of Texas campus to view one of 25 copies of the “Broadside” Declaration of Independence. Because it was on a journey to only six cities, I was excited that Austin was one of them. According to the information provided by the Library, on July 4, 1776, the official printer of Congress, John Dunlap, printed 200 copies of the Declaration to be distributed throughout the colonies.

In doing a little research into repositories of copies of the Declaration and Constitution, I discovered a blog post by Zach Lowe on the Am Law Daily. A hand-written copy of a draft of the Constitution was recently uncovered by Lorianne Updike Toler who is one of the founders of the Constitutional Sources Project. This organization’s purpose is to make the documents relating to our country’s origin available online.

Toler came across this draft while perusing some of the 21 million documents in the Historical Society of Pennsylvania’s collection of documents. This version, previously unacknowledged, was handwritten by James Wilson, one of the drafters of the Constitution. (He was also a signer of the Declaration). It was found on several pieces of paper which had become separated entitled “The Continuation of a Scheme.”

All of these documents are so important to understanding, not just U.S. history, but how momentous in the world’s history this series of event was. It angers me when people say we can only fix our government by fixing the Constitution. There is nothing wrong with the Constitution. We don’t need to fix it; we need to enforce it.

http://amlawdaily.typepad.com/amlawdaily/2010/02/constitution.html

http://www.philly.com/philly/news/nation_world/20100202_Early_draft_of_the_Constitution_found_in_Phila_.html

http://www.consource.org/

Posted in Law | Tagged , , , | Leave a Comment »

Free Credit Report dot Com, Let’s Go!

February 4, 2010 by kimberlyhouser

First let me say that I love those FreeCreditReport.com commercials. I sincerely hope they do not take them off the air. The problem is that the commercial itself does seem to imply that if you go to this website, you will receive a free copy of your credit report. The commercial does not make it clear that when you go to the website and enter your information, you are also agreeing to a monthly charge of $14.95 for a credit monitoring service.

One of the users of the website has now brought a class action suit in a California federal court against Experian, the website owner, claiming false advertising. As my clients and students are well aware, these are the exact types of lawsuits I have been warning website owners about for years.

This may be a hard case to prove because once you are on the FreeCreditReport.com website, the terms seem pretty clear. The website indicates on the landing page that this credit report is provided free to those who agree to try the credit report monitoring program, which program can be cancelled within 9 days. It is not hidden on a separate page, and even includes a statement that this is not the free credit report required by federal law. In addition, although many people are aware of this requirement that credit bureaus must provide a free copy of your credit report on an annual basis, I doubt people are mistaking the catchy commercial for the actual site (www.annualcreditreport.com).

The real problem is that now Experian will have to defend itself in federal court. As with most class actions, Experian will probably have to settle it. I’d really like to see them fight it. Regardless of how it turns out, I hope those commercials continue. http://www.youtube.com/watch?v=7dFbNw3bpKE

Posted in Law | Tagged , , | 1 Comment »

Is a cross a religious symbol or a war memorial?

January 29, 2010 by kimberlyhouser

In Salazar v. Buono, 08-472 (Supreme Court 2008 – not yet decided) the lower court held that the presence of a Christian cross located on land owned by the federal government was an unconstitutional endorsement of religion. The original cross had been erected in 1934 by the Veterans of Foreign Wars in remembrance of those who died. The original case was brought by a former National Park Service employee who felt that displaying the cross on public lands without other religions represented was offensive. In an attempt to get around the Establishment clause issue, Congress declared the cross a national monument and then attempted to exchange the parcel on which it was located for another so that the memorial would not be located on federal property. The lower court disallowed this as well.

Unlike Citizens United (see previous post) where the Supreme Court took a very limited issue and expanded it beyond recognition, in Salazar, the Supreme Court reduced this potentially far-reaching decision and limited their questioning on oral argument to whether the government had the right to exchange the parcel to allow the cross to stay where it was.

While Scalia suggested that the cross was a war memorial, and Alito implied that the Congress’ actions had solved the Establishment Clause issue, the rest of the Justices seemed focused on whether Congress even had the right to exchange the parcels under these circumstances. Had Souter remained on the court, it is likely he would have objected to the war memorial as being a religious symbol. It will be interesting to read the decision when it comes out and see what Sotomayor has to say, if anything.

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Supreme Court rules that Bribing Political Candidates is now legal!

January 22, 2010 by kimberlyhouser

In a 5-4 decision the United States Supreme Court has made bribing political candidates legal.  Locally, when a developer is denied approval to build another subdivision, now corporate headquarters can turn around and fund the election of someone who will vote for it.  Nationally, the awarding of federal contracts to campaign supporters will no longer go on under the table with risks of ethics violations and possible criminal charges, now it can be done out in the open.    

 The case at issue is Citizens United v. the Federal Election Commission, No. 08-205.  This case involves a negative movie about Hilary Clinton that was released during the primaries.  Citizens United, who produced the film, lost a case against the FEC which had prevented them from showing the film on a cable TV channel and from advertising the movie on TV. The lower court found that the McCain-Feingold campaign finance laws did apply to the movie.  Although the case went to the Supreme Court on these narrow grounds, mainly whether the campaign finance laws were meant to apply to documentary-style movies, the Court took the unusual step of holding a second set of arguments to address whether two previous campaign finance law cases should be overruled.  Although this case is sad for many reasons, I am especially sad that former-Justice Sandra Day O’Connor was not able to guide the court to a more palatable result.   Essentially, the majority threw out campaign finance laws and decided that the federal government can no longer ban corporations from spending money on political campaigns.

 Justice Kennedy stated in the majority opinion: “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in free speech.”  Hold on, Emily Litella, since when is a corporation an “association of citizens.”  The last time I checked, they were state-chartered entities organized for the purpose of operating a business, making a profit, and sheltering the organizers of the business from personal liability.  I don’t think anyone would mistake one for an “associations of citizens.”  This decision is a travesty on a number of levels, but as I discussed with my classes today, corporations are not humans.  Thomas Jefferson stated: “A bill of rights is what the people are entitled to against every government on earth, .  .  .”  These rights are human rights, essential to our type of government.  They should not be cheapened by their extension to corporations.  (I do understand that corporations have been given “rights” over the years by the Supreme Court, starting with Santa Clara County v. Southern Pacific Railroad Company.  I just don’t agree with that line of decisions.  And while I agree with Stevens’s Dissent in Citizens, I don’t agree with his adherence to the “corporations are people too” position.) 

This case is not just about campaign finance laws; it is about the power that corporations have amassed over the years.  Do you really want Xe Services, LLC, f/k/a Blackwater, choosing your next President?   When my students ask me, why doesn’t anybody do anything about this stuff?  I tell them, we are like frogs in a pot of water that has slowly been turned to boiling.  The changes happen so gradually, that we don’t know we are cooked until it is too late.  Let’s notice this change.  Let’s do something about it.

Posted in Supreme Court | Tagged , , , , | 14 Comments »

Bloggers and the new FTC Guide

January 20, 2010 by kimberlyhouser

The FTC updated its Guide Concerning the Use of Endorsements and Testimonials in Advertising effective December 1, 2009, which concerns testimonials and endorsements on websites and blogs. Going forward, if you (or a user on your blog or website) represent results from the use of a product or service as typical when that is not the case, you will need to also disclose the results that most consumers can expect. This is different from the previous FTC Guide which allowed advertisers to use extremely positive results in a testimonial as long as they included the disclaimer such as “these results are not typical.” In addition, the revised Guide also requires that the relationship between a supplier of the product or services and the endorser to be disclosed. For example, if a blogger recommends a product on their blog that they received for free or were paid to discuss on their blog, the blogger is required to disclose this information in the blog. Similarly, if an employee recommends a product or service on a discussion board or blog, the employee is required to disclose that he or she is employed by the manufacturer or supplier of the service. The revised Guide seems to indicate that both endorsers and advertisers could be liable under the FTC Act for statements they make in an endorsement. This would include false or unsubstantiated statements and the failure to disclose a material connection between the advertiser and endorser. With respect to making statements about your or someone else’s products or services, honesty and full disclosure are the best policies. 

[This is an excerpt from my book coming out this year titled: The Legal Internet Guide for Small Businesses and Bloggers, which is an easy-to-understand question-and-answer legal guide for those blogging and doing business on the internet.]

Posted in Law | Tagged , , , | 2 Comments »

Will someone please decide whether software can be patented?

January 16, 2010 by kimberlyhouser

 The U.S. Supreme Court recently heard arguments in the case of Bilski v. Kappos No. 08-964 (Supreme Court 2009). This decision could help determine whether software can be patented. The question in the lower court was whether a process can be patented. The lower court expanded its inquiry to whether or not software can be patented. Although this Federal Court did not rule that software cannot be patented, it apparently overruled the State Street decision. In State Street Bank & Trust v. Signature Financial Group, 149 F.3d 1368 (1998), the court determined that software programs that “transform data” are patentable subject matter even when there is no physical transformation of an article. The State Street court held that software or other processes that yield a “useful, concrete and tangible result” should be considered patentable and this rule has been followed, more or less, by the Patent Office ever since.

In Bilski the lower court indicated that the “useful, concrete and tangible result” inquiry should no longer be used to determine whether a process can be patented. Because this was the inquiry used to grant many software patents in the past, the Federal Court’s decision has called into question the validity of these existing software patents. The new test stated for determining that a process is patentable is if “(1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing.”  The lower court ruling did not explain whether a software process operating on a computer is considered to be tied to a “particular machine or apparatus.”  If a computer is not deemed to be a particular machine, then many existing software process patent claims could be in jeopardy.  

The Supreme Court also took up the question of whether the lower court’s new “machine-or-transformation” test for patent eligibility, which eliminates patent protection for many business methods, including software, contradicts the clear Congressional intent that patents protect “method[s] of doing or conducting business” in 35 U.S.C. § 273. During the arguments some of the Justices seemed to imply that siding with Bilski could open the door too wide for further patent applications, while other Justices felt the new test was too limiting. Regardless of how the decision comes out, at some point either the courts or the legislature need to clear up the confusion surrounding the ability to patent business process and computer software.

Posted in Law, Supreme Court | Tagged , | 1 Comment »

The NFL and antitrust, again?

January 12, 2010 by kimberlyhouser

I have to admit, I wasn’t really following this case until I read a very articulate editorial by Drew Brees, a Quarterback for the New Orleans Saints and former Austinite, in the Austin American Statesman (1-11-10 – page A7). Apparently the Supreme Court will be hearing American Needle v. NFL, Supreme Court Docket No. 08-661; an antitrust case brought by an Illinois manufacturer of hats who lost its antitrust claim in the Federal Court of Appeals in Illinois (7th Circuit). The antitrust claim arose from the NFL’s granting an exclusive license to Reebok to manufacture NFL fan products such as hats, jackets and the like. As the Illinois company, American Needle, pointed out, the effective monopoly has in fact increased prices for such fan gear since Reebok was awarded the contract in 2001, and has prevented smaller companies from getting into the market. The Supreme Court will decide if the NFL should be considered one entity (in which case there is no monopoly because you can’t have a monopoly with yourself) or 32 separate entities (in which case they could be found to be conspiring to restrain trade in the fan product area). What Mr. Brees pointed out was that this ruling could also affect the NFL’s ability to monopolize other areas. Apparently the NFL made the unusual request to the Supreme Court that it rule the NFL is one entity for purposes other than just fan gear. The result which Mr. Brees fears is that such a ruling could effectively overrule the 1993 decision in McNeil v. NFL, 790 F. Supp. 871, 896-97 (D.Minn. 1992), a previous antitrust lawsuit against the NFL, which paved the way for free agency among football players. Depending on how far the Supreme Court goes, the decision in the American Needle case could have ramifications for free agency, ticket prices, and, of course, fan gear, in other sports as well.

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Steal from the poor and give to the rich?

January 8, 2010 by kimberlyhouser

On December 11, 2009, a Motion to Reargue Appeal was filed in the New York Court of Appeals (highest court in New York – like a Supreme Court in other states) in the case of Goldstein v. New York State Urban Development Corporation, No. 178 (November 24, 2009) which decision had upheld the condemnation of a number of residential and commercial properties in order to make way for a private corporation to develop the land for high-end residential purposes as well as the building of a sports stadium. The condemned property was claimed to be “blighted” in a study introduced as evidence in the case (which label the residents and business owners who live there would most certainly take issue). The court indicated that the condemnation was permitted under New York law under the guise of economic development. You will remember that the 5th Amendment of the U.S. Constitution states that private property cannot be taken by the government for public use without just compensation. The 14th Amendment expands this limitation to state and local governments. Typically, this power of condemnation may only be exercised through delegation from the appropriate legislature to either an agency (for public parks, etc.) or a private corporation (for purposes of providing a public service, such as utilities or transportation).  What worries me, besides the very poorly worded opinion in Goldstein, is that the New York Court of Appeals seems to be taking the much-maligned approach in Kelo v. City of New London, 545 U.S. 469 (2005) a step further away from the Constitution.

In Kelo, a U.S. Supreme Court case, a bare majority of 5 Justices — Stevens, Kennedy, Souter, Ginsberg, and Breyer, ruled that private property could be taken for redevelopment by a private corporation when new jobs and taxes are created.  O’Connor, Rehnquist, Scalia, and Thomas dissented.  Kelo had further expanded the holdings in two previous cases, Berman v. Parker, 348 U.S. 26 (1954) and Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), which allowed condemnation to eliminate “blight.”  The pathetic end to this matter outside of the court is that in November 2009, Pfizer, the private corporation whose promises prompted the condemnation action, announced that not only would it not be developing the property, but that it would be closing the existing New London facility.  Thus, the promised jobs and taxes that were the stated reason for people being removed from their land will never come about anyway.  Talk about adding insult to injury.

In response to Kelo, in 2006, an executive order was issued limiting the federal government’s use of condemnation proceedings  “…for the purpose of benefiting the general public and not merely for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken.”  Although this only applied to federal proceedings, many states did change their condemnation laws to follow more closely the Executive Order than the Kelo Supreme Court ruling.  Obviously, New York was not one of them.

If this Goldstein case does make its way to the U.S. Supreme Court, what would be interesting to see is whether Souter’s replacement, Sotomayor, sides with the previous dissent making way for an effective reversal of Kelo?  I have no doubt that the framers of the “takings” clause of the Constitution did not intend it to be used to force landowners off their land for the benefit of private corporations.  What will Sotomayor do if given the chance?

Posted in Law, Supreme Court | Tagged , , , | 1 Comment »

Is blogging better than going to court?

January 3, 2010 by kimberlyhouser

On December 30, 2009, the 9th Circuit (US District Court – Northern California) issued an opinion in the case of Birdsong, Waggoner, et. Al. v. Apple, Inc., No. 08-16641 (DC No. 5:06-CV-02280-JW) finding that even though the iPod’s ear buds can project sounds into the ears of up to 115 decibels, the plaintiffs in this case were not in fact injured (i.e., did not suffer hearing loss themselves) and thus did not have standing to sue. In addition, the court noted that the iPods did not cause hearing loss while using ear buds unless the volume was turned up significantly. Because the iPods could be used without turning the volume up (an obviously unsafe use), the decision to dismiss the class action suit was upheld. Although the plaintiffs claim that they were seeking to have Apple adopt safer features, the court was correct in indicating that filing a class action suit was not the best way to go about this. Perhaps the Plaintiffs could learn something from Jeff Jarvis who posted his issues with Dell in 2005 on his blog buzzmachine.com. Apparently, this tactic worked. Dell responded with its own direct2dell.com blog and worked to resolve its customer service issues. What we are seeing, and which should really be acknowledged for its power, is that blogging CAN be used successfully to resolve issues that a mere decade ago could only garner national attention by going to court. A blog with a wide readership has enormous potential to affect positive corporate and societal change. I believe this trend with be proven out in the years to come. Not only is blogging a faster way to reach your target audience, it is much cheaper than going to court.

Posted in Law | Tagged , , | 6 Comments »

Police – take note: you can no longer Taser anyone you want

December 31, 2009 by kimberlyhouser

On December 28, 2009, the 9th Circuit (US District Court – Southern California) issued an opinion in the case of Carl Bryan v. Brian McPherson; Coronado Police Department; and City of Coronado, No. 08-55622 (DC No. 3:06-CV-01487-LAB CAB) finding a police officer used excessive force when Tasering a young man who was stopped for not wearing a seatbelt.  The officer, without warning, Tasered the unarmed young man in the back from 15 – 25 feet away.  As I’m sure you are aware there have been a number of cases in the recent press regarding police officers Tasering everyone from little girls to tiny Grandmas.  Finally, a court recognizes that police officers can’t Taser someone out of anger – there has to be an actual threat to the officer.  Hopefully, police departments across the nation will take note of this finding of excessive force in violation of the Fourth Amendment.

Posted in Law | 6 Comments »

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