Scalia’s Problem

Recently, Justice Antonin Scalia shot his mouth off about another bit of “social” judicial opinion and managed to be correct to a fault again. Here is the article. Basically, he is of the opinion that if a specific term or phrase does not appear in the Constitution, then that subject is simply not covered. Most famously, this goes to the continuing argument over privacy. There is, by Scalia’s reasoning (and I must add he is by no means alone in this—it is not merely his private opinion), no Constitutionally-protected right to privacy. As far as it goes, this is correct, but beside the point. The word “private” certainly appears, in the Fifth Amendment, and it would seem absurd to suggest the framers had no thought for what that word meant. It refers here to private property, of course, but just that opens the debate to the fact that there is a concept of privacy underlying it. The modern debate over privacy concerns contraception and the first case where matters of privacy are discussed is Griswold v. Connecticut, 1965. That case concerned the right of a married couple to purchase and use contraception, which was against the law in that state (and others). The Court had to define an arena of privacy within which people enjoy a presumed right of autonomous decision-making and into which the state had no brief to interfere. Prior to this, the Court relied on a “freedom of contract” concept to define protected areas of conduct. Notice, we’re back in the realm of property law here. People who insist that there is no “right to privacy” that is Constitutionally protected seem intent on dismissing any concept of privacy with which they disagree, but no doubt would squeal should their own self-defined concept be violated. Therein lies the problem, one we continue to struggle with. But it does, at least in Court tradition, come down to some variation of ownership rights—which is what has made the abortion debate so difficult, since implicit in it is the question of whether or not a woman “owns” her body and may therefore, in some construction of freedom of contract, determine its use under any and all circumstances. [More . . . ]

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What 2010 Meant

The Lame Duck Congress has ended the year with a Marathon of Epic Legislation.  I can't help being impressed.  Obama said he wanted Congress to do with Don't Ask Don't Tell, to repeal it legislatively, and not have it end up as a court-mandated order.  I can understand this, especially given the rightward shift of the judiciary.  But the way in which he went about it seemed doomed and certainly angered a lot of people who thought he was breaking a campaign promise.  (The puzzling lunacy of his own justice department challenging a court-led effort must have looked like one more instance of Obama backing off from what he'd said he was going to do.)  I am a bit astonished that he got his way. A great deal of the apparent confusion over Obama's actions could stem from his seeming insistence that Congress do the heavy lifting for much of his agenda.  And while there's a lot to be said for going this route, what's troubling is his failure to effectively use the bully pulpit in his own causes.  And the fact that he has fallen short on much.   It would be, perhaps, reassuring to think that his strategy is something well-considered, that things the public knows little about will come to fruition by, say, his second term. (Will he have a second term?  Unless Republicans can front someone with more brains and less novelty than a Sarah Palin and more weight than a Mitt Romney, probably.  I have seen no one among the GOP ranks who looks even remotely electable.  The thing that might snuff Obama's chances would be a challenge from the Democrats themselves, but that would require a show of conviction the party has been unwilling overall to muster.) The Crash of 2008 caused a panic of identity.  Unemployment had been creeping upward prior to that due to a number of factors, not least of which is the chronic outsourcing that has become, hand-in-glove, as derided a practice as CEO compensation packages and "golden parachutes," and just as protected in practice by a persistent nostalgia that refuses to consider practical solutions that might result in actual interventions in the way we do business.  No one wants the jobs to go overseas but no one wants to impose protectionist policies on companies that outsource.  Just as no one likes the fact that top management is absurdly paid for jobs apparently done better 40 years ago by people drawing a tenth the amount, but no one wants to impose corrective policies that might curtail what amounts to corporate pillage.  It is the nostalgia for an America everyone believes once existed that functioned by the good will of its custodians and did not require laws to force people to do the morally right thing.  After a couple decades of hearing the refrain "You can't legislate morality" it has finally sunk in but for the wrong segment of social practice. [More . . . ]

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Obama Signs Tax Package: What’s in it for me?

President Obama signed the 2010 tax package into law Friday, December 17, 2010. This is the Act that's been so much in the news lately. Check out the TaxProf Blog's compilation of both technical and opinion resources for answers to questions like: "What's in the Act?" and "How will this Act affect me personally?" If there's an acronym for the Act's title yet, then I don't know what it is. Here's the official title:

“TAX RELIEF, UNEMPLOYMENT INSURANCE REAUTHORIZATION, AND JOB CREATION ACT OF 2010”

It looks like a hard title to 'acronym-ize' into something memorable like COBRA, for example. COBRA (The Consolidated Omnibus Budget Reconciliation Act of 1985), like the 2010 Act, changed parts of the Internal Revenue Code. COBRA denied employers tax deductions for health insurance premiums if the employer’s plan failed to provide for continuing coverage for separated employees. While I’ve heard many people speak of ‘COBRA coverage’ over the years, I’ll bet few of them knew their right to COBRA medical insurance came as a result of a change in the tax code. Check out the TaxProf Blog to find out what new, COBRA-like changes may be buried in the 2010 "TRUIRJCA". No! That will never do as an acronym for the

“TAX RELIEF, UNEMPLOYMENT INSURANCE REAUTHORIZATION, AND JOB CREATION ACT OF 2010”

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New chapter on arbitration in Missouri

I know that this is a shameless self-promotion, but here goes. I've often ranted about the way unscrupulous businesses take advantage of consumers by inserting horrendously unfair mandatory arbitration clauses in their contracts. A new Missouri CLE Deskbook for lawyers was released yesterday and it features a highly detailed chapter on arbitration clauses. I was one of two co-authors, along with John Campbell with whom I have the honor of working at the Simon Law Firm in St. Louis, Missouri. This manual is geared to help Missouri consumer lawyers, but it could be valuable for anyone who wants to know the state of the law of consumer arbitration. It worth noting that Missouri law has paralleled the arbitration law of many other states, especially on the issue of unconscionability (John and I argued for the winning side of the August 31, 2010 case decided by the Missouri Supreme Court, Brewer v. Missouri Title Loans). If you are interested in taking a look at this chapter, I would assume that you will soon be able to find this book in most law libraries and on the library shelves of many law firms. For a glimpse of how complicated this topic of arbitration has gotten, I'm printing out the Table of Contents below: [More . . . ]

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Comcast is trying to destroy the Internet

Today I received the following email from Free Press on the issue of net neutrality:

In the past 24 hours, Comcast has been caught abusing its massive media power, stomping on competitors and violating Net Neutrality. The New York Times reported last night that Comcast threatened to cut off Netflix streaming video unless the company that carries the traffic paid huge tolls.1 Earlier in the day, Comcast was exposed for trying to bar cheaper cable modems from its network — a clear violation of Net Neutrality. This is what a media monopoly looks like in the Internet age — one company, consolidating its media power to squash competitors, stifle innovation and price-gouge consumers. Such outrageous abuse comes just days before FCC Chairman Julius Genachowski is expected to finally propose new Net Neutrality rules to come up for a vote in December. It's never been more crucial that he hear from you. If the FCC stays on the sidelines, Comcast will turn the Internet into cable TV, where it gets to pick the channels, overcharge you for them, and decide what downloads quickly and whose voices are heard. Comcast is the same company that wants to take over NBC Universal in one of the biggest media mergers in a generation. It's not just the Internet at stake here. It's the future of all media: television, radio, social networks... and our democracy itself.
If you find this information disturbing, you can do something about it. Sign this message to the FCC: "Don't Let Comcast Kill the Internet." Oh, and the malicious actions of Comcast go far beyond what Karr outlined above. See the article of Timothy Karr of Free Press in the Huffington Post. In that article you can read the Eight Count Indictment Karr levels against Comcast. It includes counts for anti-competitive activity regarding modems, the inexcusable request to merge with NBC Universal, censoring the speech of Vinh Pham, who dared to criticize Comcast on his blog (Comcast contacted the company that hosts Pham's blog and demanded the entire blog be censored) and blocking public access at a public hearing regarding public access to the Internet. Comcast needs to be slapped down big time, and the FCC needs you to ferociously pressure them to do what is obviously needed. For more information: 1. New York Times, "Netflix Partner Says Comcast 'Toll' Threatens Online Video Delivery." 2. Free Press, "Zoom Complaint Against Comcast a Reason for FCC to Act."

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