#GayMarriage and the Dysfunctions of Modernity (Answering the Stupid Question: How will gays marrying affect your marriage?)

April 1, 2013
(Supreme Court Justice Elena Kagan thought she scored some points when she demanded that the lawyer defending California’s Proposition 8 tell her the exact “harm” gay marriage would cause.) Of course, the point is that we don’t know how such a social experiment will turn out, or what specific “harm” will follow, no more than we know the benefits.Why would same-sex marriage, virtually unknown among human societies, be a “human right,” but polygamy, extensively documented in history and prevalent today all over the world, wouldn’t? Even the ancient Greek celebrator of homoerotic attraction, Plato, called sex between males “against nature.” No more scientifically based are the alleged “studies” that purport to show that children reared by gay couples suffer no adverse effects. As Nelson Lund writes in the Wall Street Journal, professional organizations like the American Psychological Association and the American Academy of Pediatrics claim that scientific research shows no differences between children growing up with gay couples and those raised by heterosexual parents, a claim parroted recently on NPR. But these studies are riddled with compromising flaws such as tiny nonrandom samples, a lack of control groups, and reliance on self-report from gay parents, no more an objective source of information than straight parents’ estimations of their parenting skills. Moreover, the most comprehensive study that did use a large randomized sample found several disadvantages for children raised in a household where parents were involved in a gay relationship. But as Lund reports, this study “has been vociferously attacked on methodological grounds by the same organizations that tout the value of politically congenial research that suffers from more severe methodological shortcomings.”(MORE)
Mothers Abuse Children 3 Times more than Dads – Federal HHS Statistics
(Answering the Stupid Question: how will gays marrying affect your marriage?)Nearly 40% of all births are to unmarried women. The rate in the Hispanic and Black communities is twice that. According to the CDC In 2007, 93% of births to 15–17 year-olds and 82% of births to 18–19 year-olds were nonmarital. Re-defining marriage by polygamy could absorb large numbers of unmarried single mothers. As men marry multiple times, providing male role models to millions of boys lacking that today.

Supreme Court Backs Copyrights for Older Foreign Works

January 19, 2012
Keystone Pictures/Zuma Press

Picasso is among the foreign artists, writers and composers whose works get U.S. copyright protection
under a law upheld Wednesday.

how in the hell do you take works out of the public domain when they are already used fairly and then prosecute people for it?

(WSJ By BRENT KENDALL And JESS BRAVIN) WASHINGTON—The Supreme Court on Wednesday upheld a 1994 law granting copyright protection to a large number of foreign works that had been freely available in the public domain. The ruling was a victory for the movie, music and publishing industries, which argued that granting copyright protections for the foreign works was an important step in securing reciprocal overseas rights for U.S. works. The decision means some musicians and other artists will have to keep paying to use the now-copyrighted foreign works.

Congress enacted the measure to bring the U.S. in compliance with the Berne Convention, an 1886 treaty providing for international recognition of copyrights. The court, by a 6-2 vote, said Congress acted within its powers in granting the protections.
“Congress determined that U.S. interests were best served by our full participation in the dominant system of international copyright protection,” Justice Ruth Bader Ginsburg wrote for the court.
The ruling defeated a challenge by a group of orchestra conductors, performers, educators and others who argued that Congress exceeded its powers by restricting their ability to perform, share and build upon foreign works that once had been free for use.
The Constitution authorizes Congress to grant copyrights “for limited times.” Challengers argued that authority didn’t include the power to take works out of the public domain. They also said the law violated the First Amendment because removal of the works interfered with their freedom of expression.

Google Inc. was the leading company challenging the law, in an echo of the separate battle in Washington over an Internet piracy bill that pits Google against movie studios. The search company, which didn’t respond to a request for comment, said in court papers that the restored copyrights could affect more than a million books it has scanned through its Google Books Library Project.
The ruling followed others in recent years giving Congress broad discretion over the shape of copyright. In 1998, Congress bowed to entertainment industry wishes by extending existing copyrights by 20 years, so they would last 70 years after the author’s death—to 2036, for instance, for Walt Disney. In a 2003 opinion, also by Justice Ginsburg, the court upheld that extension.
[TODO]“Today’s ruling demonstrates that the United States fulfills its international copyright obligations and will remain a world leader in protecting creative works,” Fritz Attaway, chief policy adviser for the Motion Picture Association of America, said.

Ruth Bader Ginsburg

Among the foreign works removed from the public domain were symphonies by Russian composers Sergei Prokofiev and Dmitri Shostakovich, writings by J.R.R. Tolkien and George Orwell, and paintings by Pablo Picasso.
The number of works that qualified for copyright restoration probably numbered in the millions, the U.S. Copyright Office has estimated.
Justice Stephen Breyer, joined by Justice Samuel Alito, dissented from the court’s ruling, saying the law “inhibits an important pre-existing flow of information” and is at odds with the purpose of granting copyrights: to provide incentives for creators to produce new works. Instead, the law “bestows monetary rewards only on owners of old works,” wrote Justice Breyer.
Orchestra conductor Lawrence Golan, the lead plaintiff in the case, said the law has limited the ability of smaller-budget orchestras to perform some popular foreign pieces, such as “Peter and the Wolf,” that used to be free.
Now orchestras, on average, must pay about $800 per performance of Prokofiev’s children’s classic, Mr. Golan said in an interview. “The price of the licensing fees or rental fees for playing these pieces will be cost-prohibitive,” he said.
The 1994 law granted copyrights to foreign works that never received American protection because they were published in countries that previously lacked copyright relations with the U.S. It also restored protections for foreign works that were in the public domain because they hadn’t complied with technical requirements of U.S. copyright law.
Some foreign works were denied U.S. rights for 50 or 60 years, said Eric Schwartz, a former government copyright attorney who negotiated international copyright agreements. “Some of the families of the creators are trying to get back some of the money they were denied,” he said.
Another copyright attorney, Lloyd Jassin, said that taking “a work out of the public domain in the U.S.—in this case a book published abroad between 1923 and 1989—will have an impact. It’s in effect a tax for independent publishers who might have been seeking to publish a work formerly in the public domain. A rich public domain allows for greater access to older works—and at a much lower cost.”
Justice Elena Kagan, who was a Justice Department official during earlier stages of the litigation, did not take part in the case.
The case is Golan v. Holder, 10-545.
—Jeffrey A. Trachtenberg contributed to this article.
Write to Brent Kendall at brent.kendall@dowjones.com and Jess Bravin at jess.bravin@wsj.com

Jerusalem gets its day in court and the judges could be biased.

October 3, 2011
A very odd situation for a country to define another countries borders when a binding treaty regarding British mandate still would be in conflict with any actions the president makes even if found to be legal, which it is not. Clearly the meaning of our legal documents is demanding when the word “SHALL” is used, but even with such bias it would still be in direct opposition to U.S. treaties. This should be open and shut, but the judges have bias in their way

Jerusalem is getting its day in court in Washington DC. During the term that opens today, the Supreme Court will hear oral arguments in the case of Zivotofsky v. Clinton, in which the parents of Menachem Binyamin Zivotofsky argue that their son’s place of birth should be listed as “Jerusalem, Israel” on his American passport. Here’s a rather lengthy and well-done summary of the case.

The State Department​ refuses to comply with a provision in a congressional statute, the Foreign Relations Authorization Act for Fiscal Year 2003, which requires the State Department to record a Jerusalem-born U.S. citizen’s place of birth as “Israel” if requested to do so by the citizen or his or her legal guardian. This particular instance of dereliction of the president’s constitutional duty to “take care that the laws be faithfully executed” began during the Bush administration and is continuing apace during the Obama administration. An estimated 50,000 individuals, who were born in Jerusalem but are considered American citizens because of their parents’ American citizenship, are affected.
Now a case challenging the State Department’s refusal to comply with the law is going to the Supreme Court, against the wishes of the Obama administration. The Supreme Court directed the parties in the case of Zivotofsky v. Clinton to address the broad question of whether the law “impermissibly infringes the president’s power to recognize foreign sovereigns.” After losing its argument that the Supreme Court should not hear the case at all, Secretary of State Hillary Clinton’s State Department filed a brief last month with the Supreme Court sharply attacking the Jerusalem-related portion of the Foreign Relations Authorization Act that Clinton had voted in favor of while serving as New York’s junior senator.
The Obama administration brief makes unprecedentedly broad claims of exclusive presidential power. And it also misrepresents the Obama administration’s stance toward the final status of Jerusalem as one of neutrality, which it claims would be undermined by the Foreign Relations Authorization Act’s passport requirement.
The truth is that the Obama administration is not neutral. It has conflated the Palestinians’ claims to “East Jerusalem” with their claims to West Bank territory. By failing to distinguish between the building of Jewish residences within Jerusalem versus settlements on West Bank territory, the Obama administration has sided with the Palestinians against Israel on a critical issue.
As Israeli Prime Minister Benjamin Netanyahu said, “Jerusalem is not a settlement. It’s our capital.” He has history on his side. Jews have been living in Jerusalem continuously for more than three millennia. In more recent times, they have constituted the largest single group of inhabitants there since at least the 1840s.
Whatever the reason for the Obama administration’s embrace of the Palestinians’ claims, it should not be entitled to disregard the law on the books concerning the issuance of passports and substitute its own arbitrary edicts.
Contrary to the Obama administration’s assertion of exclusive power with regard to the issuance of passports, Congress’ constitutional power to regulate the conditions for issuing passports has long been recognized by the Supreme Court. True, the Supreme Court has said in the past that when there is broad rulemaking authority granted in an applicable statute to the executive branch and Congress does not override the consistent administrative construction of the statute by the executive branch, the courts must generally defer to the administrative determination. However, this case involves precisely the opposite situation. The Foreign Relations Authorization Act’s Jerusalem provision expressly limits powers that Congress had granted to the executive branch with respect to making rules for the issuance of passports in one specific respect. It said: “For … a United States citizen born in the city of Jerusalem, the Secretary shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel” (emphasis added). “Shall,” not “may,” is the operative word.

“If a US citizen is born in Tel Aviv, his passport will designate his place of birth as Israel. But in the case of Jerusalem, the US Consular Department will not give the country of birth as Israel,” said Menachem’s father to the Jerusalem Post. “Even though our son was born in Shaare Zedek Hospital, which is in West Jerusalem, the US Consular Department does not recognize it as being Israel.”

The conventional wisdom is that the Supreme Court will not take a bold stance. Instead, the bet is that it will affirm the lower courts’ rulings and end up deferring to presidential authority in the foreign policy arena. However, the fact that the Supreme Court decided to take the case for review in the first place and directed the parties to address the broad question of whether the law “impermissibly infringes the president’s power to recognize foreign sovereigns” indicates to me that the court may well surprise us. Let’s hope that it does and places clearly defined limits on the executive branch.

Read the whole thing.

Troy Davis Executed After Stay Denied by Supreme Court

September 22, 2011
WASSAAA!! Troy Davis Was executed at night after the U.S. Supreme Court denied a last-minute stay of execution. Davis died at 11:08 p.m., according to a Georgia Department of Corrections official.The execution was delayed more than four hours as the U.S. Supreme Court weighed last-minute arguments from Davis’ legal team and the state of Georgia over whether his execution should be blocked. WASSAAA!!

The growing Clarence Thomas ethics problem LOLZ… there wasn’t one

June 21, 2011
Friendship of Justice and Magnate Puts Focus on Ethics by Mike Mcintire of nytimes.com

New York Times investigative reporter Mike McIntire penned a hit piece on Justice Clarence Thomas for Sunday’s front page, trying to find a controversy in the funding by a friend of Thomas of a cultural museum in the justice’s hometown of Pin Point, Ga.: “The Justice and the Magnate – Friendship and Museum Project Put Focus on Ethics.” But looking past the loaded headline and lacings of ominous word choices like “ethically sensitive,” one is hard-pressed to find any hints of actual wrongdoing on the part of Justice Thomas.
Prominently placed, hostile investigations of conservative-friendly groups (that lead nowhere) are a specialty of McIntire’s. His front-page story from March 2011 accused a Tea Party group of pushing the agenda of an Indonesian corporation fighting U.S. tariffs. In September 2010 he went after the group Americans for Job Security, another group with Tea Party ties.

” Whelan pointed to a double standard in Supreme scrutiny and challenged anyone “to argue that Thomas’s friendship with, and generous favors from, someone who has had no interest in cases before the Supreme Court is somehow more problematic than Ginsburg’s interaction with the NOW Legal Defense and Education Fund.”

1. The Code of Conduct for United States Judges—which, as the article notes, does not formally apply to Supreme Court justices—sets forth canons of ethical conduct that are reasonably looked to, at least presumptively, as a benchmark for the conduct of justices (even if one reserves the possibility that those canons might apply somewhat differently to justices or that some of the sub-rules inevitably involve arbitrary line-drawing).

Canon 4 states that a “judge may engage in extrajudicial activities, including law-related pursuits and civic, charitable, educational [and other specified types of] activities,” but that “a judge should not participate in extrajudicial activities that detract from the dignity of the judge’s office, interfere with the performance of the judge’s official duties, reflect adversely on the judge’s impartiality, lead to frequent disqualification, or violate the limitations set forth [in Canon 4’s sub-rules].” Canon 4.C in turn states:

A judge may assist nonprofit law-related, civic, charitable, educational, religious, or social organizations in planning fund-raising activities and may be listed as an officer, director, or trustee…. Otherwise, a judge should not personally participate in fund-raising activities, solicit funds for any organization, or use or permit the use of the prestige of judicial office for that purpose.

[A]s this Los Angeles Times article from 2004 discusses, Ginsburg authorized the NOW Legal Defense and Education Fund to name a lecture series after her—the “Justice Ruth Bader Ginsburg Distinguished Lecture Series on Women and the Law”—and she “gave opening remarks” and introduced the speaker at the fourth installment of that series. The NOW Legal Defense and Education Fund took part (and, now rebranded as Legal Momentum, continues to take part) regularly in litigation before the Supreme Court: its database identifies its participation in a dozen or so merits cases during the first four years of the lecture series (including Lawrence v. Texas, Grutter v. Bollinger, and Gratz v. Bollinger), and a similar or higher level of participation in subsequent years (including Gonzales v. Carhart). Ginsburg took part in all those cases.…
According to the LA Times article, legal ethicist Monroe Freedman said that Ginsburg’s affiliation with the lecture series “crosses the line,” and legal ethicist Geoffrey Hazard called it “inappropriate.” By contrast, legal ethicist Stephen Gillers called it “a judgment call.” For present purposes, I see no need to resolve whether Ginsburg acted unethically. My much more modest point is simply that nothing underlying even the wildest smears that the Left has directed against Thomas and Scalia comes anywhere close to Ginsburg’s conduct.

I likewise challenge anyone to argue that Thomas’s friendship with, and generous favors from, someone who has had no interest in cases before the Supreme Court is somehow more problematic than Ginsburg’s interaction with the NOW Legal Defense and Education Fund. via nationalreview.com
image via

If there is anything that bothers me in the points McIntire raises, it is Ginny Thomas’s political fundraising…. Half of Washington knows this trick. Tom DeLay pioneered it when he started a foundation, told big donors to give money to it, and put his wife and daughter on its payroll.  Others like Newt Gingrich soon followed suit. It may now be seem as standard operating procedure by DC types, but it is a sleazy maneuver, and at the very least public officials should be subject to full disclosure of their entire household income. via frontburner.dmagazine.com

Damages For Your Reputation? Rakofsky v. Internet And A Dose Of IIED

May 18, 2011

Please Don’t Say Mean Things About Me!

…”IIED” is not a newfangled, high tech, improvised explosive device being used by terrorists in Afghanistan or a birth control device.  It is the shorthand for  a new, improvised and ill-conceived legal theory set forth by Joseph Rakofsky in the the Rakofsky v. Internet Amended Complaint.  The legal theory of “Intentional Infliction of Emotional Distress.” or as Rakofsky calls it “Intentional Infliction Of Emotional Harm”.  You can read here and link to other sources explaining how Joseph Rakofsky came to sue the Internet.

What he did not do was fix his jurisdictional mess.  There is really no way to fix it other than sue each defendant separately in their home jurisdiction.  As as been previously pointed out,  Rakofsky can not get personal jurisdiction in New York over the out of state defendants for his defamation claims.  Almost every defendant is out of state and in the case of one Defendant, out of the country(Canada).
The tort of IIED,  generally allows recovery when the defendant engages in (1) outrageous speech or conduct that (2) causes severe emotional distress to the plaintiff, and (3) the defendant intends to cause such distress, or is aware of a high probability that the speech or conduct will cause such distress.
Maybe Rakofsky thinks he can  get around the personal jurisdiction issue on the IIED claims.  It does not help him.  Pushing aside the unprovable elements of IIED and 1st Amendment issues for a moment,  New York courts have consistently held that blogs and blog posting even if there are advertisements,  do not in themselves constitute a business presence in New York for the purposes of personal jurisdiction. He has not yet grasped or for whatever reason simply does not care that he can not get to the out of state defendants unless he sues them in their home jurisdictions.
Let’s pull the 1st Amendment back in the equation.  This real issue on the IIED claim is whether  words alone on matters of public concern, which the Rakofsky trial as well as the ethics of attorneys certainly are, can serve as the basis of a claim for IIED.  That’s what this is all about isn’t it?  Words.  Words of bloggers and mainstream journalists who wrote “mean things” online about Joseph Rakofsky and “damaged” him.   Rakofsky claims this is enough to sustain a IIED claim.  He’s wrong.  It’s not just my opinion. It is also the opinion of The Supreme Court Of The United States(SCOTUS).  You do not have to go to Lexis, Westlaw or the dusty law library stacks to know this.  You just have to follow the news.