Civil Disobedience Heroes
By Scott F. Pearce, Esq. | August 26, 2008
One day today’s tree-sitters and other environmental activists are going to end up being commemorated on US Postage stamps. For more than 20 years, some of the oldest redwood trees in Humboldt County, California have been at the heart of one of the most contentious battles between citizens and Corporate America.
The result of this fight is tremendous news, both for the trees and for industry. The activists put their lives on the line to defend the environment. They held on long enough for business to evolve to the point where it now sees the value of these trees beyond short-term profit.
This story has received lots of local coverage in Humboldt County. Here is a story with a good time line of events (starting in the 1860’s). For other Humboldt County coverage, look here, here, and here. The LA Times also had an elaborate story about these events.
Topics: Modest Interest | No Comments »
Sarbanes-Oxley in Court
By Scott F. Pearce, Esq. | August 25, 2008
Sarbanes-Oxley is the most important federal business regulation law to pass during the Bush administration. Earlier this year, I reported on a case that proves this law is both necessary and effective. An insurance company, AIG, had to take a writedown of almost five billion dollars as a result of auditing and reporting mandated by Sarbanes-Oxley.
A legal challenge to this law is making its way through the courts. The Free Enterprise Fund is fighting the law, and so far the law is winning.
To put it mildly, The Free Enterprise Fund is a fanatic front-group for big business. This group feels the power of the government is righteous only when it protects the strong from the weak. Despite this, their argument against the law is interesting. Basically, the plaintiff contends that Sarbanes-Oxley violates the separation of powers because it gives to the Securities Exchange Commission authority that can’t be taken away from the President.
I advocate the re-regulation of big business. At the same time, I this re-regulation must be done according to the Constitution. Personally, I think the appellate court got it right - but I recognize that the plaintiff’s arguments are not unworthy of careful consideration. It will be interesting to see whether or not the US Supreme Court decides to have a look at the issues presented. My guess is that they will take the case.
As always, I advise you to think about these issues for yourself. Check out the appellate decision, and don’t forget to study the dissent. This is highly technical, but if you’re into it you’ll be rewarded. While you’re at it, have a look at these other reports about the case: 1 2 3 4
Topics: Securities Law | 1 Comment »
US vs. Nazario
By Scott F. Pearce, Esq. | August 22, 2008
Jose Luis Nazario is being prosecuted in civilian court for crimes allegedly committed while serving as an active-duty US Marine. The Military Extraterritorial Jurisdiction Act was designed for prosecuting US mercenary forces - who are not subject to the military courts.
This case should not be in the civilian courts. Although I have publically opposed the Iraq war from the start, I would not want to handle this case. How is it that the government has chosen to prosecute this one front-line soldier for deaths that occurred during one of the most violent battles of this dreadful war? What are they going to do, get Iraqi insurgents to testify in court in front of an American jury?
Wouldn’t it be better to prosecute Bush and Blair and Cheney and the others? They have squandered and stolen trillions of dollars and murdered millions of innocents around the world. One of the many tragedies of this criminal war is the extent to which we’re squandering the lives of some of the best and brightest of the social classes who serve in the US Armed forces.
Follow this story here here here and here.
Topics: Criminal Law & Procedure, International Law | No Comments »
Hall v. Nalco
By Scott F. Pearce, Esq. | August 19, 2008
Cheryl Hall was fired for missing work to undergo fertility treatments. The 7th Circuit just agreed that she has stated a claim for gender discrimination under Title VII of the Civil Rights Act, as amended by the Pregnancy Discrimination Act of 1978. Read the decision here - free registration may be required.
This is an interesting case. Joanna Grossman wrote a good piece for FindLaw. A law firm blog has some sarcastic observations about the 7th Circuit decision, while another firm is more objective in its analysis.
Topics: Employment | No Comments »
Lesbian Insemination Case Followup
By Scott F. Pearce, Esq. | August 19, 2008
I discussed this case back in May. It involves a lesbian who was denied medical treatment at a fertility clinic because of her sexual orientation. The doctors argued that both the federal and the state Constitutional guarantees of the free exercise of religion and free speech should override the California anti-discrimination law. The California Supreme Court agreed with the plaintiff. Their decision was unanimous, unlike their recent decision legalizing same-sex marriage.
Have a look at the decision for yourself. While you at it, check out the plaintiff’s opening brief, the defendants’ answer brief and the amicus brief filed by the ACLU. The first three of these resources are links from a group called Advocates for Faith and Freedom, which supported the doctors’ side of this case.
You can read more about this interesting case here here here and here.
Topics: Civil Liberties | No Comments »
ADA and the Bar Exam
By Scott F. Pearce, Esq. | August 18, 2008
The Americans With Disabilities Act requires special accommodations be given to students with learning disabilities when they take tests. The question is, what accommodations are appropriate? This is a scientific question and sometimes reasonable people can differ about both the diagnosis and the accommodations.
The West Virginia Law Examiners gave a bar candidate three days and a private room to complete a two-day bar exam. After he failed the exam by 17 points, he sued the examiners because they didn’t give him four days.
In this video, I don’t pretend to be able to judge the validity of the candidate’s claim, but it’s not hard to see that the authorities in West Virginia might have some problems in court.
See some coverage of this issue here here here and here.
Topics: Civil Liberties, Education | No Comments »
Open Source Copyright Infringement
By Scott F. Pearce, Esq. | August 17, 2008
The Federal Circuit Court of Appeals has held that somebody who publishes open-source software can enforce any limits he or she chooses to set on its use. The case is called Jacobsen v. Katzer.
Read the decision for yourself. I think this it’s good news. When a person dedicates intellectual property to the creative commons, he or she ought to be place reasonable limits on its use. Read some informed analysis at this link.
Topics: Intellectual Property | 2 Comments »
The 2nd Amendment in the 8th Circuit
By Scott F. Pearce, Esq. | August 16, 2008
Justice Scalia’s highly controvercial majority opinion in District of Columbia v. Heller was prominent in a recent decision of the 8th Circuit, called US v. Fincher.
Hollis Wayne Fincher, the defendant in the 8th Circuit case, had been convicted of being wrongfully in possession of a machine gun and a sawed-off shotgun. Mr. Fincher argued that, since he was a member of a citizen’s militia, he should have been allowed to argue the Second Amendment to the jury.
The 8th Circuit upheld Mr. Fincher’s convictions. This shows that Justice Scalia’s decision was not the death knell for sensible gun control in the United States. Scalia wrote that blanket handgun bans violate the Second Amendment. There’s a strong consensus that private citizens should not be allowed to possess military weapons.
Topics: 2nd Amendment | No Comments »
Corporate Taxes & Economic Justice
By Scott F. Pearce, Esq. | August 14, 2008
The Government Accountability Office just published a study that compares corporate taxes of US and foreign cororations. It finds that 28% of big US corporations don’t pay income taxes.
Raising corporate taxes might not raise government revenue. Check out this paper. It includes IRS data that shows how much corporate tax revenue declined as a result of businesses switching to “pass-through” business entities such as LLC’s, LLP’s, and S-corporations.
Count me among those who disapprove of big disparities between rich and poor. For what it’s worth, I think economic injustice is wrong. On a less-philosophical level, I think it’s bad for the health of our economic system. We’re going to have to do a lot more than tinker around with the tax code to fix what’s wrong with the economy.
Topics: Securities Law, Tax Policy | No Comments »
GPS & the Fourth Amendment
By Scott F. Pearce, Esq. | August 14, 2008
Since 1967, the US Supreme Court has acknowledged that the 4th Amendment will have to evolve with the advances in technology. The case law is getting interesting.
US v. Garcia is a 2007 case from the 7th Circuit. Follow the link and have a look at the decision for yourself. You can read a Harvard Law Review article about the issues here. I think the court’s reasoning is sensible and scholarly, although I would have used it to reach the opposite result in the instant case. Here’s a recent Washington Post article on GPS and the 4th Amendment.
Topics: 4th Amendment | 1 Comment »