Maybe you like Marvin Gaye's family, none of whom actually make music, but me, I'd rather allow living artists make music without having to fight the families of dead artists over copyright infringement.
If two living, active artists were fighting it out, I'd probably be more neutral on the subject. But this is a clear case of a copyright outlasting it's intended purpose, as Marvin Gaye died in 1984.
Which makes the problem the fact that copyright currently lasts an absurdly long time. The court ruled accurately based on current law. Dumb as that law may be.
Copyright is fundamentally broken and cannot be repaired in the digital age. It should be repealed entirely and replaced with something new.
This is an interesting thought. @spool32 , how would you restructure copyright?
I'm struggling to come up with great solutions. I think the entire concept of there being a difference between a thing and the digital representation of the thing is about to collapse, for one. Right now, I can have a patent on the process of making an object that does not exist and a copyright on the image of the non-existent thing represented in some mediums but not in others. I can perfectly reproduce the thing as either an image or an object, and different laws cover both at different stages of the digitization / real-ization of the thing. It's a horrible mess looming over us - the 10T weight at the end of a frayed rope. How do you defend your copyright on the shape of a plastic miniature when all I need is a photo of it to make one of my own?
Anyhow, to be less florid: infinite perfect free copies irrevocably break copyright. The Gaye decision doesn't matter because Blurred Lines will never exit the public sphere and no one can stop it from being played or shared. It's no different now than DeCSS as song lyrics or natural language poetry. Copyright is broken because this exists (both in real life and as an image) and cannot be uncreated. What to do though?
I'm not "pro-piracy". I'm clear-eyed about the place where we are now, and the direction we're headed. Right now, the only thing keeping us from returning to the days of limewire in music is simple convenience. It's just easier to buy an album from Amazon and stream it immediately than it is to rip if off the CD they mail you. laziness is keeping the music industry afloat, and anything that pushes us far enough back toward the days before the end of DRM will just trigger a new round of rampant piracy - it's inevitable and impossible to prevent because of infinite free perfect copies.
In 2-5 years movies and TV will be in exactly the same situation. SAB+Sickbeard+Giganews are the Napster of video, and the only thing preventing an identical situation as what happened with music in the 90s is bandwidth. Once gigabit internet gets enough penetration, the same thing will happen. And there's 3d printing, currently in the place music was when you needed to do FTP downloads with a password you got from the IRC channel. Give it a decade.
Again... what to do? I'm not sure. Creators deserve to be compensated for their work! But copyright is a deal, one the People make with the Artist. We'll defend your ability to make money, and in return, you give it to us later and we do whatever we want to with it. That deal has been violated and the underlying assumptions on which it was based don't exist now anyway. the deal is meaningless! We get nothing from it, we suffer ever-larger penalties, and the effort to enforce it denies reality. What we need, to begin with, is copyright that recognizes the fundamental impossibility of preventing copies from being made. It needs "devaluation of the work" or "potential lost sales" to be removed as a concept, and for the creator to demonstrate actual monetary harm before action by the State will be taken. Copying anything, any way you like, should be allowed as long as you don't make money from the work. The DMCA needs to be repealed in full. The term of a copyright needs to be reduced dramatically, to perhaps 50 years max.
Here's the thing, spool -and this is the elephant in the middle of the room when we talk about this - internet piracy is pretty much about the money. And it's not just me pointing this out - here's Peter Sunde, one of the creators of The Pirate Bay, discussing the monetization of said website:
The site was ugly, full of bugs, old code and old designs. It never changed except for one thing – the ads. More and more ads were filling the site, and somehow when it felt unimaginable to make these ads more distasteful, they somehow ended up even worse.
The scope of modern internet piracy is pretty much due to it being a revenue generator, and a great one too because when you're not paying for the product you're monetizing, it's pretty much all gravy. Go after the money - make it so that the ad agencies aren't willing to advertise on pirate sites - and you will significantly cut into piracy rates, because a lot of the people supplying the content will get out of the game if there's nothing in it. Yes, you won't see a 100% reduction, but nobody is expecting that.
(Frankly, discussion of things like orphan works, copyright length, etc. are sort of red herrings when it comes to discussing piracy, because the reality is that most people aren't resorting to piracy because they're looking for works they can't get any other way - they're looking for the latest media.)
This isn't really true. A lot of people come out break even or a loss, especially when risk adjusted for legal consequences, and still do it anyways. I think you vastly underestimate how much of it is because of a love of sharing, especially considering the guy you are quoting is a pirate who is concerned other people aren't pirating correctly, but still whole heartedly agrees with the idea of piracy.
Besides, the argument shouldn't really be that copyright should have to justify itself by the lack of piracy, but rather, copyright should have to justify itself on the basis that it costs almost nothing to let every man, woman, and child in the world listen to Blurred Lines, once it has been created. The monetary creation incentive is useful, but it comes with a lot of severely damaging caveats. It's worth noting that piracy acts in no insubstantial way as a de facto welfare for the third world, so less piracy and stronger copyright protections is literally stealing from the poor to give to the rich.
We shouldn't be afraid to take serious looks at other ways of doing media, where people offer content entirely free, on an ad supported basis, using patreon, using kickstarter (which could be used as a "ransom" model as well), on donations, selling services, etc, etc, etc. I think people have way too much of a traditionalist bias when it comes to thinking about how to go to an age where people furiously scribble notes of a play in the Globe Theatre to an age where value is created by denying people access to art and culture and ruthlessly guarding properties like a miser's horde (No One Lives Forever being a good example of a property where there is both a commercial and public desire to do more, but due to shitty IP laws, we'll likely never see it again because of callous indifference and greed).
Besides, legitimate products still can't compete on quality, price aside. DRM free media available in the format of your choice, with no regional restrictions, downloaded at a speed that will generally saturate your entire connection if you want, often with better language choices, etc, etc, etc. If you prefer downloading to streaming, I'd go so far as to say there's no provider in the world who can compete with good scene releases on quality / customer service. Copyright causes us to have vastly inferior goods, because the best distributors are the pirates. The optimal solution would be to find a compromise and tell many of the current middle men to shape up or take a hike.
To bring is back to scotus talk. Everyone likes Posner so I am going to say he might be a contender for the next position and suggest everyone read his book on copyright law
I'm not sure my concerned on his views on privacy or police accountability can be mitigated.
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ResIpsaLoquiturNot a grammar nazi, just alt-write.Registered Userregular
To bring is back to scotus talk. Everyone likes Posner so I am going to say he might be a contender for the next position and suggest everyone read his book on copyright law
I practice in a region covered by the Seventh Circuit, and have a friend who appeared before Posner. He's pretty darn awesome. He has some very, very interesting decisions. He'll never get nominated, and though age is one factor, I think the big one is that he's too unpredictable--or independent--to be tapped.
The worst part of it was how fucking awfully disingenuous it was. "This decision applies to sluts not wanting to get knocked up like the real God intends, and doesn't apply to any of those weird, fake religions like Jehovah's Witnesses, lol," is an accurate layperson summary of that decision. So, women's health isn't real health, or only certain flavors of Christianity are valid, or both. Good job correctly interpreting the establishment clause and equal protection, buckos.
The worst thing is, the general medical consensus is many of those drugs aren't even abortofacients, so apparently Jesus is issuing out medical doctorate licenses too. Human garbage all the way down.
I'd say the very worst thing is that it was five Catholic men deciding that Catholic religious beliefs had special Constitutional protections vs. other religious beliefs.
Not sure if serious or Lorc alt
I joined in 2005. That's a pretty deeply laid plan.
I'm not Cathophobic or whatever you call it. I just think that, when you announce in a controversial majority opinion of the SC that corporations get religious freedom to interfere with their employee's health coverage, but only for some religious beliefs, with no particular standard specified for which ones count, well, then...
You ought to make damn sure that the belief you're privileging in the case at hand isn't a core tenet of the religion every single member of your 5-4 majority belongs to. Because from where I sit it looks an awful lot like five Catholic justices deciding this is a great vehicle to impose Catholic doctrine about birth control. Did they think about it in those terms? I'm sure not. But do I think some of them would have been a lot less sympathetic to the plaintiff's religious convictions if it was a Christian Scientist corporation that didn't want to offer healthcare at all? Oh, you betcha.
I feel like, if you want to criticize the SCOTUS for Hobby Lobby, there are plenty of reasons to do so that don't require malice or a fundamental rejection of the duty of the office to make it believable. I mean, four justices did most of the work for you already.
I'd love it if we could leave the conspiracy theories and the disparaging remarks out of this thread altogether.
I don't even think "religious freedom to interfere with their employee's health coverage" is a fair representation of the issue. The employer pays most of the bill for that coverage, after all. I'm not sure to what extent employer-provided insurance belongs to the employee at all. There are far better arguments and this is not a thread where you can begin with the assumption that the most hyperbolic interpretation of the liberal opinion on the Court is correct and work outward from there.
At least it's usually not a thread like that.
I'm honestly confused by this. We are not in a debate with SCOTUS. We have no obligation to assume that they are arguing in good faith, especially when they clearly aren't. They're a political institution whose members often rule on the basis of political beliefs, at least in big, high-visibility cases like this. Is there anyone naive enough to think otherwise? And precisely because they, unlike all other government officials, are appointed for life and above review for anything short of high crimes and misdemeanors, we should pay special attention to their potential to abuse their position. In this case they issued an opinion whose logic is tortured, and tortured in such a way as to give special status to a specific doctrine of the religion of all five members of the majority. Why on earth wouldn't we discuss that in a thread about SCOTUS?
The worst part of it was how fucking awfully disingenuous it was. "This decision applies to sluts not wanting to get knocked up like the real God intends, and doesn't apply to any of those weird, fake religions like Jehovah's Witnesses, lol," is an accurate layperson summary of that decision. So, women's health isn't real health, or only certain flavors of Christianity are valid, or both. Good job correctly interpreting the establishment clause and equal protection, buckos.
The worst thing is, the general medical consensus is many of those drugs aren't even abortofacients, so apparently Jesus is issuing out medical doctorate licenses too. Human garbage all the way down.
I'd say the very worst thing is that it was five Catholic men deciding that Catholic religious beliefs had special Constitutional protections vs. other religious beliefs.
Not sure if serious or Lorc alt
I joined in 2005. That's a pretty deeply laid plan.
I'm not Cathophobic or whatever you call it. I just think that, when you announce in a controversial majority opinion of the SC that corporations get religious freedom to interfere with their employee's health coverage, but only for some religious beliefs, with no particular standard specified for which ones count, well, then...
You ought to make damn sure that the belief you're privileging in the case at hand isn't a core tenet of the religion every single member of your 5-4 majority belongs to. Because from where I sit it looks an awful lot like five Catholic justices deciding this is a great vehicle to impose Catholic doctrine about birth control. Did they think about it in those terms? I'm sure not. But do I think some of them would have been a lot less sympathetic to the plaintiff's religious convictions if it was a Christian Scientist corporation that didn't want to offer healthcare at all? Oh, you betcha.
I feel like, if you want to criticize the SCOTUS for Hobby Lobby, there are plenty of reasons to do so that don't require malice or a fundamental rejection of the duty of the office to make it believable. I mean, four justices did most of the work for you already.
I'd love it if we could leave the conspiracy theories and the disparaging remarks out of this thread altogether.
I don't even think "religious freedom to interfere with their employee's health coverage" is a fair representation of the issue. The employer pays most of the bill for that coverage, after all. I'm not sure to what extent employer-provided insurance belongs to the employee at all. There are far better arguments and this is not a thread where you can begin with the assumption that the most hyperbolic interpretation of the liberal opinion on the Court is correct and work outward from there.
At least it's usually not a thread like that.
I'm honestly confused by this. We are not in a debate with SCOTUS. We have no obligation to assume that they are arguing in good faith, especially when they clearly aren't. They're a political institution whose members often rule on the basis of political beliefs, at least in big, high-visibility cases like this. Is there anyone naive enough to think otherwise? And precisely because they, unlike all other government officials, are appointed for life and above review for anything short of high crimes and misdemeanors, we should pay special attention to their potential to abuse their position. In this case they issued an opinion whose logic is tortured, and tortured in such a way as to give special status to a specific doctrine of the religion of all five members of the majority. Why on earth wouldn't we discuss that in a thread about SCOTUS?
I think we do have an obligation to assume they're arguing in good faith, because it's critical to maintaining confidence in our republic and to maintaining our belief in the integrity of the court. If you tear at the foundations because you don't like what got built on them lately, you're not fixing the problem - you're just wrecking shit.
I don't think they're fundamentally a political institution, and I think a sharply focused review of the court's decisions (as opposed to a broadly partisan re-framing) bears this out. There are ideological differences that overlap on the venn diagram with political positions of various types, that's not always instructive and forces partisans who want to believe that the court is partisan to ignore all the decisions and opinions that run contrary to the narrative. I think casting this as naive is inflammatory and unnecessary. People can disagree with your cynicism about the court without being pollyannas about it, and your framing leaves me no room to dissent without placing myself, personally, in the firing line for insults entirely outside the issues being discussed. Which, by the way, is also the problem I have with your catholic conspiracy. Enough attacking people, please.
Finally, you're mis-characterizing me telling you to stop with the Lorcish conspiracy theories about catholics preferentially treating their own co-religionists as a call to not discuss the issue at all. Please do discuss the decision! Discuss the arguments, rip up their logic, etc etc. Leave the "some justices are catholic, therefore..." out of it, though. It's another permutation of the ridiculous "old dead white men" attack on the Constitution. It's tired, it's lazy, it's destructive to the republic, it's insulting, it's unnecessary, and it's wrong.
The argument that some Justices let their religious affiliation dictate their decisions begins here, and ends with bitter personal insults on the character and competence of at least 6 of the Justices (I didn't look to see what religious affiliation the other three were). The desire to undercut the entire discussion about the decision itself, by simply dismissing it as religiously motivated and thus invalid from the start, is very strong.
Resist that.
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Andy JoeWe claim the land for the highlord!The AdirondacksRegistered Userregular
I don't think they're fundamentally a political institution, and I think a sharply focused review of the court's decisions (as opposed to a broadly partisan re-framing) bears this out. There are ideological differences that overlap on the venn diagram with political positions of various types, that's not always instructive and forces partisans who want to believe that the court is partisan to ignore all the decisions and opinions that run contrary to the narrative.
The justices are definitely partisan. Sometimes they don't allow their partisan instincts to rule their decision-making, but sometimes they do.
I don't think they're fundamentally a political institution, and I think a sharply focused review of the court's decisions (as opposed to a broadly partisan re-framing) bears this out. There are ideological differences that overlap on the venn diagram with political positions of various types, that's not always instructive and forces partisans who want to believe that the court is partisan to ignore all the decisions and opinions that run contrary to the narrative.
The justices are definitely partisan. Sometimes they don't allow their partisan instincts to rule their decision-making, but sometimes they do.
Or, the Justices are not partisan, and sometimes their decisions align with partisans but sometimes they do not.
I think I disagree with every single word of that response, Spool. But this discussion is probably going to lead down a multi-page rabbit hole that I honestly don't think I have the will to partake in. So I'll just leave it at that.
Back to my question from a few pages ago, is anyone else worried that Kennedy can use his "if we side against Burwell we'll be creating an unconstitutional law" logic to then side against Burwell and strike down the entire ACA as unconsitutional? Or is that beyond the scope of what's possible here?
The employer pays most of the bill for that coverage, after all. I'm not sure to what extent employer-provided insurance belongs to the employee at all.
100% as it is part of your contractually obligated compensation. Same as your paycheck or PTO. Which the employer pays all of the bill for as well. But it isn't worth rehashing the numerous failings of logic in Hobby Lobby when there are so many new, interesting failures of logic coming before the Court.
but the employer can change the offering
To what extent?
Should employers be able to choose your medications...
yes, obviously, because that is routine and accurately reflects every employer-based health plan in existence.
@spool32 thanks for your copyright thoughts. I'm mulling them over.
As for your comment about whether we have an obligation to assume the justices are arguing in good faith, I think there is ample evidence that Scalia's malleable approach to jurisprudence indicates a lack of good faith on his part.
Note, for the record, I understand that "living constitution" proponents have a malleable approach to jurisprudence, and I have no problem with that. The difference between "living constitution" justices and Scalia who purports to be a textualist is that the "living constitution" justices admit to having a malleable approach, where Scalia, whose judicial philosophy abhors any malleability AND Scalia claims to never go outside his judicial philosophy, regularly breaks his judicial philosophy to comport with his feelings on the matter before him.
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Andy JoeWe claim the land for the highlord!The AdirondacksRegistered Userregular
I don't think they're fundamentally a political institution, and I think a sharply focused review of the court's decisions (as opposed to a broadly partisan re-framing) bears this out. There are ideological differences that overlap on the venn diagram with political positions of various types, that's not always instructive and forces partisans who want to believe that the court is partisan to ignore all the decisions and opinions that run contrary to the narrative.
The justices are definitely partisan. Sometimes they don't allow their partisan instincts to rule their decision-making, but sometimes they do.
Or, the Justices are not partisan, and sometimes their decisions align with partisans but sometimes they do not.
No, that's not really borne out by the evidence. The most partisan-aligned decisions are typically the ones where the justices also depart most from the principles of interpretation that they normally hold to.
Scalia at least consistently ruled that the founders would have viewed IR cameras as a real search for which a warrant is required. Thomas, meanwhile, thought it was perfectly all right for a school administrator to search a student's underwear based on a classmate's claim that she was hiding drugs in there.
I think Thomas may literally be insane and/or mentally deficient for some of his opinions. But I respect him more than Scalia because atleast it seems like his crazy beliefs are ones that he honestly believes.
I think Thomas may literally be insane and/or mentally deficient for some of his opinions. But I respect him more than Scalia because atleast it seems like his crazy beliefs are ones that he honestly believes.
Well the ones that his wife wasn't bribed specifically for him to rule on anyway...
I would like some money because these are artisanal nuggets of wisdom philistine.
The worst part of it was how fucking awfully disingenuous it was. "This decision applies to sluts not wanting to get knocked up like the real God intends, and doesn't apply to any of those weird, fake religions like Jehovah's Witnesses, lol," is an accurate layperson summary of that decision. So, women's health isn't real health, or only certain flavors of Christianity are valid, or both. Good job correctly interpreting the establishment clause and equal protection, buckos.
The worst thing is, the general medical consensus is many of those drugs aren't even abortofacients, so apparently Jesus is issuing out medical doctorate licenses too. Human garbage all the way down.
I'd say the very worst thing is that it was five Catholic men deciding that Catholic religious beliefs had special Constitutional protections vs. other religious beliefs.
Not sure if serious or Lorc alt
I joined in 2005. That's a pretty deeply laid plan.
I'm not Cathophobic or whatever you call it. I just think that, when you announce in a controversial majority opinion of the SC that corporations get religious freedom to interfere with their employee's health coverage, but only for some religious beliefs, with no particular standard specified for which ones count, well, then...
You ought to make damn sure that the belief you're privileging in the case at hand isn't a core tenet of the religion every single member of your 5-4 majority belongs to. Because from where I sit it looks an awful lot like five Catholic justices deciding this is a great vehicle to impose Catholic doctrine about birth control. Did they think about it in those terms? I'm sure not. But do I think some of them would have been a lot less sympathetic to the plaintiff's religious convictions if it was a Christian Scientist corporation that didn't want to offer healthcare at all? Oh, you betcha.
I feel like, if you want to criticize the SCOTUS for Hobby Lobby, there are plenty of reasons to do so that don't require malice or a fundamental rejection of the duty of the office to make it believable. I mean, four justices did most of the work for you already.
I'd love it if we could leave the conspiracy theories and the disparaging remarks out of this thread altogether.
I don't even think "religious freedom to interfere with their employee's health coverage" is a fair representation of the issue. The employer pays most of the bill for that coverage, after all. I'm not sure to what extent employer-provided insurance belongs to the employee at all. There are far better arguments and this is not a thread where you can begin with the assumption that the most hyperbolic interpretation of the liberal opinion on the Court is correct and work outward from there.
At least it's usually not a thread like that.
I'm honestly confused by this. We are not in a debate with SCOTUS. We have no obligation to assume that they are arguing in good faith, especially when they clearly aren't. They're a political institution whose members often rule on the basis of political beliefs, at least in big, high-visibility cases like this. Is there anyone naive enough to think otherwise? And precisely because they, unlike all other government officials, are appointed for life and above review for anything short of high crimes and misdemeanors, we should pay special attention to their potential to abuse their position. In this case they issued an opinion whose logic is tortured, and tortured in such a way as to give special status to a specific doctrine of the religion of all five members of the majority. Why on earth wouldn't we discuss that in a thread about SCOTUS?
I think we do have an obligation to assume they're arguing in good faith, because it's critical to maintaining confidence in our republic and to maintaining our belief in the integrity of the court. If you tear at the foundations because you don't like what got built on them lately, you're not fixing the problem - you're just wrecking shit.
I don't think they're fundamentally a political institution, and I think a sharply focused review of the court's decisions (as opposed to a broadly partisan re-framing) bears this out. There are ideological differences that overlap on the venn diagram with political positions of various types, that's not always instructive and forces partisans who want to believe that the court is partisan to ignore all the decisions and opinions that run contrary to the narrative. I think casting this as naive is inflammatory and unnecessary. People can disagree with your cynicism about the court without being pollyannas about it, and your framing leaves me no room to dissent without placing myself, personally, in the firing line for insults entirely outside the issues being discussed. Which, by the way, is also the problem I have with your catholic conspiracy. Enough attacking people, please.
Finally, you're mis-characterizing me telling you to stop with the Lorcish conspiracy theories about catholics preferentially treating their own co-religionists as a call to not discuss the issue at all. Please do discuss the decision! Discuss the arguments, rip up their logic, etc etc. Leave the "some justices are catholic, therefore..." out of it, though. It's another permutation of the ridiculous "old dead white men" attack on the Constitution. It's tired, it's lazy, it's destructive to the republic, it's insulting, it's unnecessary, and it's wrong.
The argument that some Justices let their religious affiliation dictate their decisions begins here, and ends with bitter personal insults on the character and competence of at least 6 of the Justices (I didn't look to see what religious affiliation the other three were). The desire to undercut the entire discussion about the decision itself, by simply dismissing it as religiously motivated and thus invalid from the start, is very strong.
Resist that.
I am even more deeply confused than before. I don't understand the connection between opinions expressed in this thread and the potential dissolution of the Republic, and I certainly don't understand your oddly personal attachment to the sanctity and integrity of the Justices and their opinions. Casting aspersions on the character of the holders of high office is a proud and essential American tradition, and I would cheerfully burn the sacred Constitution to the ground before I gave that up. If you want to say that these particular aspersions are undeserved, that the SC is a magnificently apolitical institution of pure legal inquiry whose members never allow their legal views to be warped by their personal ones, I welcome that argument. It would be interesting and probably educational. Do you think the common framing by Court observers of liberal vs conservative Justices is all wrong? Intriguingly counterintuitive. I welcome seeing that case made. But trying to avoid having to make it at all by tarring the opposition with some bizarre slippery slope to anarchy is something I have no patience for at all.
I do agree that we should try to avoid personal insults and mischaracterizations in this conversation. Of course, I did not mischaracterize what you said as "a call not to discuss the issue at all," the issue being the legalities of the decision. I characterized your position as being that we should not discuss the religions or other personal facts of the Justices as an influence on their decisions. If that's not your position, I apologize, but that's my good-faith reading of it. In return, I would appreciate it if you stopped saying I was peddling anti-Catholic conspiracy theories. I can't claim it's destructive to the republic, but it is definitely tired, lazy, insulting, unnecessary, and wrong.
I would love to see the next couple nominees come from somewhere other than the monastary of the Appellate Courts.
And the Ivy League as well.
one thing that makes Kagan and Sotomayer such nice picks. They bring fundamentally different perspectives to the court as a litagator and criminal judge respectively.
I think we do have an obligation to assume they're arguing in good faith, because it's critical to maintaining confidence in our republic and to maintaining our belief in the integrity of the court.
No, the responsibility of maintaining the integrity of the court is on the court and the other two branches.
Pointing out members of the court arguing in bad faith does not harm that integrity. Arguing in bad faith harms it.
I would love to see the next couple nominees come from somewhere other than the monastary of the Appellate Courts.
And the Ivy League as well.
one thing that makes Kagan and Sotomayer such nice picks. They bring fundamentally different perspectives to the court as a litagator and criminal judge respectively.
Kagan I'll grant you, Sotomayor's dissent in Brandt v. United States was bonkers
I would love to see the next couple nominees come from somewhere other than the monastary of the Appellate Courts.
And the Ivy League as well.
one thing that makes Kagan and Sotomayer such nice picks. They bring fundamentally different perspectives to the court as a litagator and criminal judge respectively.
Kagan I'll grant you, Sotomayor's dissent in Brandt v. United States was bonkers
I don't know where that opinion came from.
Lord help me. I will never understand real property law. Possibly because I had a craptastic 1L instructor on the topic and avoided anything having to do with it forever after.
I would love to see the next couple nominees come from somewhere other than the monastary of the Appellate Courts.
And the Ivy League as well.
one thing that makes Kagan and Sotomayer such nice picks. They bring fundamentally different perspectives to the court as a litagator and criminal judge respectively.
Kagan I'll grant you, Sotomayor's dissent in Brandt v. United States was bonkers
I don't know where that opinion came from.
Lord help me. I will never understand real property law. Possibly because I had a craptastic 1L instructor on the topic and avoided anything having to do with it forever after.
Technically, not actually real property law in this case. Here is a primer as someone who was a Realtor and so actually had to learn it. That being said, standard not a lawyer or even a realtor anymore disclaimer don't take this as advice yadda yadda yadda.
Generally with land the owner has rights to everything above and below the parcel of land exclusively. Think of rights to land like an object that can be broken up and sold in pieces. If you sell aspect 1 that doesn't mean you sell aspect 2. And if you buy aspect 1 you can only sell aspect 1. This is how most homeowners associations apply their covenants. The association owns the land in totality. It sells only specific rights to the land (like building) and maintains a requirement that certain aspects be maintained as a cost of the purchase. This is like any other contract. I could sell you my house and require that you wash my car every week forever in return and if you failed to wash my car i could take back the house since you failed to meet your contract. Or i could sell you a house and require that the mailbox is painted white and has a red flag on it subject to conditions for failure to meet spec.
Easement = Right to land owned by someone else. Think of a temporary easement like a loan. When the loan is up you gotta return the money (rights). A permanent easement is a permanent grant, you can't get the money(rights) back. For voluntary easements these work like any other contract. For involuntary easements there are general common law exceptions (for instance if your land is "locked" inside of another persons land they cannot deny you an easement to cross the property iirc. Even though you technically own the space above your land going off into infinity and the area underneath your land going to the center of the earth, no you really don't we're going to fly airplanes 30,000 feet above your head and you cannot be an ass and stop us).
Issue: Railroad grants were specific public takings for the purpose of railroads.
Argument: Easement ends -> Land goes to whom? Does it go to the government, since they, in the process of taking the rights to the land, paid for it? Does it go to the railroad companies since they were given the easement? does it go to the original land owners, because they owned the land in the first place
The court sided with the owners, saying that a 1942 decision against railroad companies applied here. The decision basically said (and i can't be specific here because i am lazy and neither read it nor the actual one I am discussing) that "no the railroads do not get the land, they were granted a temporary easement, which is over and so the land reverts". In this decision 8-1 the court said "that is binding it goes to the original owners, the governments right is waived, the original public use being no longer valid". Sotomayor said "no, the governments right is not waived, the government when it took for public use took all rights related to the land and did not take those rights on condition of use for railroad land, so the land goes to the government, who is the "owner" as prescribed by the 1942 case".
The issue is less about whether or not government taking works on normal real property law, but whether or not eminent domain secures all rights to land or if those rights are conditioned with respect to the specific authorization of eminent domain which is the 1875 law. Its not so clear to me that the argument should be decided in either way, and deciding to save the govt potentially hundreds of millions of dollars by saying "no we don't have to give the land back or repay for what we already bought" is only problematic in that the courts should ignore those aspects in their decisions. Additionally i am not sure that the law is written in a way as to be so specific that the authorization to take only applied to the right to build rail lines. If not specific then precedence would suggest that the intent was to keep the land (after all, no congress remedied the continued holding of that land, which would have been pretty easy if they thought that the govt was holding land that wasn't theirs). But if not specific then there still isn't really any problem with finally settling the matter of what the law said, and whichever way it goes isn't really a deal*.
Nor is it clear that, beyond that, the argument has any specific consequences for eminent domain law in general, since whether or not the taking was specific or in total would be an aspect of the law as written, and so if congress were concerned about not giving the land back could simply write their taking laws in a manner consistent with that intent. So overall, its doesn't seem like a particularly important thing to get upset about.
Someone who is less lazy and wants to actually read both decisions can correct me if they want
Snarky Aside: Frankly we are just lucky that the justices did not say "well the law was written a long time ago and so its invalid, congress has to rewrite the entirety of the federal code, at minimum, every 13 years"
*edit: Its possible for instance that they wanted to have such a dissent on record, to express the idea that this was not absolute in all instance, but similarly thought that the actual issue was clear in this case. So the other 8 justices essentially draw straws to write the dissent (or someone volunteers). I am not sure if this type of dynamic exists in the court. But it seems like a reasonable conjecture.
However, it's interesting that you characterize it as not "real property law" but as one of "contract law," and I think that comes out of how our two professions approach the topic. In law school, contract education might touch on property contracts, but anything involving easements was almost exclusively handled in property law. This is reflected on the multi-state bar exam where questions on easements and contracts involving real property were consider part of the "property law" portion, and this distinction was mirrored in the bar exam prep courses.
The employer pays most of the bill for that coverage, after all. I'm not sure to what extent employer-provided insurance belongs to the employee at all.
100% as it is part of your contractually obligated compensation. Same as your paycheck or PTO. Which the employer pays all of the bill for as well. But it isn't worth rehashing the numerous failings of logic in Hobby Lobby when there are so many new, interesting failures of logic coming before the Court.
but the employer can change the offering
To what extent?
Should employers be able to choose your medications...
yes, obviously, because that is routine and accurately reflects every employer-based health plan in existence.
That is probably because easements have many common law exceptions(like, there is no exception for your using someones car like there is for using someones land) while contracts not involving real property do not. I was just using it as an example because most people are familiar with contract law but not familiar with property specific law. So saying "its just like any other contract" makes it any easy way to familiarize yourself with the selling rights aspect of it. You can only sell what you own, and you are not required to sell things in totality, and if someone doesn't fulfill their part of the contract then its void and remedy occurs
The only specific difference between normal contract law (iirc) and property law beyond easement specific exemptions would be that, typically, remedy for failure to respect a covenant returns the property to its owners. So if you say "you can have the land if you don't build a house on it" and then I build a house on it, you now own all the rights again (including the house on the property iirc) and I get shafted for being a dumbass. While remedy for failure in normal contract law does not necessarily revert the terms of the contract unless specified in the contract.(I think)
fake edit because i don't want to amend the prior paragraph. I am sure there are also differences because its difficult to distinguish between owning the land and owning the buildings on the land. So there are some rights that actually inseparable and complicated. But most of the time this is moot.
However, it's interesting that you characterize it as not "real property law" but as one of "contract law," and I think that comes out of how our two professions approach the topic. In law school, contract education might touch on property contracts, but anything involving easements was almost exclusively handled in property law. This is reflected on the multi-state bar exam where questions on easements and contracts involving real property were consider part of the "property law" portion, and this distinction was mirrored in the bar exam prep courses.
OK so just realized where in the post i said "not real property law". I was actually referring to the fact that the issue hinged more on eminent domain and the specific text of the 1875 law than on the fact that it was about real property*. You could have the same law for any type of government taking.
E.G. Suppose there was a law that said "police officers can take your car if they need it to chase down a suspect" (no clue if this is actually a law). A govt agent takes a car and chases down a suspect. At the end of this the car owner is like "I want my car back" and the government says "no, we took the car to chase down the suspect but we can keep the car because the law doesn't say we have to give it back after".
Now this is clearly a ridiculous example because obviously the car would have to be returned, and any damages and depreciation paid for, because that would be the clear intent of the law. But if the law were constructed in a way that made the taking indefinite and fully paid for then the only recourse the property owner would have would have been if the original taking were illegal for some reason. SCOTUS essentially made a ruling on whether or not the law said "we will give back the car when we are done" or "we will continue to keep the car after we are done". But in this case the property in question was land.
So its not "actually real property law" because the issue isn't about how to execute real property law, its whether or not this specific law was taking all the rights to the land or was taking only certain rights under covenant. If the law is taking certain rights under covenant then end of use = return the land to the original owners. If the law is taking all rights and then granting rights to RR companies under covenant then end of use = return the land to the government
*indeed if it were about real property in general then this would have had massive implications for all eminent domain takings around the nation, since it would be saying that there was an implicit covenant in all eminent domain cases, and holy fuck that would be massive, you would have heard about how 8-1 SCOTUS just fucking upended eminent domain law and set precedent for original owners to reclaim massive tracts of federal, local, and state land. Where as in this case there is probably still a lot of land in question, but it only relates to specific railroad takings.
I think Thomas may literally be insane and/or mentally deficient for some of his opinions. But I respect him more than Scalia because atleast it seems like his crazy beliefs are ones that he honestly believes.
Well the ones that his wife wasn't bribed specifically for him to rule on anyway...
Eh..I mean the relationship both his wife and Thomas himself have with conservative lobbying organisations is pretty troubling, but his rulings, whenever he even deigns to write a brief explaining them, are pretty consistent. Even if I might feel like textualism/originalism are insanely out out of date judicial philosophies.
I mostly get the sense that the Thomases just use his political status/connections to funnel money into his wife's lobbying business. It's greasy, but all Thomas himself seems to care about is making yearly tours of the convention circuit. Which I'm sure means plenty of free food and hotel rooms at resorts.
E.G. Suppose there was a law that said "police officers can take your car if they need it to chase down a suspect" (no clue if this is actually a law). A govt agent takes a car and chases down a suspect. At the end of this the car owner is like "I want my car back" and the government says "no, we took the car to chase down the suspect but we can keep the car because the law doesn't say we have to give it back after".
Now this is clearly a ridiculous example because obviously the car would have to be returned, and any damages and depreciation paid for, because that would be the clear intent of the law. But if the law were constructed in a way that made the taking indefinite and fully paid for then the only recourse the property owner would have would have been if the original taking were illegal for some reason. SCOTUS essentially made a ruling on whether or not the law said "we will give back the car when we are done" or "we will continue to keep the car after we are done". But in this case the property in question was land.
This is a pretty fantastic analogy and really clears up the issue for those of us (ie. me) who know nothing about eminent domain law. Basically, the original exercise of eminent domain was like if in the process of taking your car the cop also threw a bag full of money at you. So after the car chase is done, is the commandeered vehicle considered bought and paid for by the government or does ownership revert back to the original owner and the bag full of money is just considered compensation for the temporary inconvenience. Is that about right?
I thought a complicating factor was also the fact that a lot of the railroad right of way involved lands taken from the Natives meaning there wasn't an original owner in a legally acknowledged sense aside from the government itself.
E.G. Suppose there was a law that said "police officers can take your car if they need it to chase down a suspect" (no clue if this is actually a law). A govt agent takes a car and chases down a suspect. At the end of this the car owner is like "I want my car back" and the government says "no, we took the car to chase down the suspect but we can keep the car because the law doesn't say we have to give it back after".
Now this is clearly a ridiculous example because obviously the car would have to be returned, and any damages and depreciation paid for, because that would be the clear intent of the law. But if the law were constructed in a way that made the taking indefinite and fully paid for then the only recourse the property owner would have would have been if the original taking were illegal for some reason. SCOTUS essentially made a ruling on whether or not the law said "we will give back the car when we are done" or "we will continue to keep the car after we are done". But in this case the property in question was land.
This is a pretty fantastic analogy and really clears up the issue for those of us (ie. me) who know nothing about eminent domain law. Basically, the original exercise of eminent domain was like if in the process of taking your car the cop also threw a bag full of money at you. So after the car chase is done, is the commandeered vehicle considered bought and paid for by the government or does ownership revert back to the original owner and the bag full of money is just considered compensation for the temporary inconvenience. Is that about right?
Yes, though obviously with lots of different owners and complications eminent domain is like "we need your car for a public use so we're going to take it and pay for it" and this case is like "the law that authorized the taking of the car was it indefinite or was it conditional?"(because it could legit be either without much issue)
To bring is back to courts. The thicke decision was bad because it legitimately opened up new avenues for challenges. No aspect of the tenor or composition mattered they literally did not listen to the music to determine whether or not the new media was sufficiently new, they looked at the sheet music. Which is terrible on a fact finding mission because jurors cant fucking read it and because even when you can the sheet does not provide the whole of the music.
This is what I've noticed here too. I mean, for those forum members who are arguing that the copyright decision was valid, did you even listen to the two songs? Because I did, and I just don't hear it, I just don't hear a line or melody from Blurred Lines that actually copies Gaye's Got To Give It Up.
Sure they sound like they were made from the same studio, like how lots of Motown records have a similar sounding style, but you could say that for a ton of other music. And if "similar sounding" becomes the new copyright standard, then current artists are screwed.
To bring is back to courts. The thicke decision was bad because it legitimately opened up new avenues for challenges. No aspect of the tenor or composition mattered they literally did not listen to the music to determine whether or not the new media was sufficiently new, they looked at the sheet music. Which is terrible on a fact finding mission because jurors cant fucking read it and because even when you can the sheet does not provide the whole of the music.
This is what I've noticed here too. I mean, for those forum members who are arguing that the copyright decision was valid, did you even listen to the two songs? Because I did, and I just don't hear it, I just don't hear a line or melody from Blurred Lines that actually copies Gaye's Got To Give It Up.
Sure they sound like they were made from the same studio, like how lots of Motown records have a similar sounding style, but you could say that for a ton of other music. And if "similar sounding" becomes the new copyright standard, then current artists are screwed.
The case was decided on the sheet music. Anyone familiar with the vastly different interpretations of even the same musical pieces knows that sheet music is the barest skeleton for how a song sounds.
It's a crappy ruling that's going to create a generation of lawsuits fueled by the music industry equivalent of the patent trolls.
To bring is back to courts. The thicke decision was bad because it legitimately opened up new avenues for challenges. No aspect of the tenor or composition mattered they literally did not listen to the music to determine whether or not the new media was sufficiently new, they looked at the sheet music. Which is terrible on a fact finding mission because jurors cant fucking read it and because even when you can the sheet does not provide the whole of the music.
This is what I've noticed here too. I mean, for those forum members who are arguing that the copyright decision was valid, did you even listen to the two songs? Because I did, and I just don't hear it, I just don't hear a line or melody from Blurred Lines that actually copies Gaye's Got To Give It Up.
Sure they sound like they were made from the same studio, like how lots of Motown records have a similar sounding style, but you could say that for a ton of other music. And if "similar sounding" becomes the new copyright standard, then current artists are screwed.
It's an even worse precedent to allow a shitty defense to win the day because of the court of public opinion. They lost because when you have your guy take the stand and say things like “It sounds like you’re playing the same thing” in front of the jury, you deserve to lose on grounds of general incompetence.
So if you want to blame people for this ruling, blame Williams, Thicke, and their legal team, because they're the ones who screwed this pooch.
Referring to the national elections his home country will have later this year, he asked for politicians to have a clear, concrete platform, to be honest when presenting their ideas, and to hold a "free, unfinanced campaign." "In the financing of electoral campaigns, many interests get into the mix, and then they send you the bill," Francis said. He also called for transparency in fundraising for political campaigns. "Perhaps public financing would allow for me, the citizen, to know that I'm financing each candidate with a given amount of money," he said. "Everything needs to be transparent and clean."
@hsu, I think that this piece on the Blurred Lines case does a pretty good job of explaining why the sky is not falling, and in fact was pretty much a "perfect storm" case. Some of the salient points:
* First, there have been similar cases before, and they didn't open the floodgates to litigation. There's no reason to assume that this will be any different.
* Second, in most cases proving access is an insurmountable hurdle, mainly because you have to get a guy who has every reason in the world to not admit something to admit it. The problem here was that Thicke pretty much served that admission up on a silver platter in the GQ interview. (On a related note, Robin Thicke should not be allowed within 500 yards of a journalist without supervision.)
* Third, they compounded the above in the trial by trying to walk the statement back, which made them look like liars - and juries HATE liars.
* Fourth, most songwriters aren't going to sue their peers for a number of social and legal reasons.
* Fifth, the perfect storm aspect was that you had an estate suing (so the usual restrictions don't apply), of an artist that both died young (so the statute of limitations wasn't an issue) and was a major force in the industry (so his influence is still significant), and they got handed proof of access (diminishing the risk of suing enough that it was much more viable.)
@hsu, I think that this piece on the Blurred Lines case does a pretty good job of explaining why the sky is not falling, and in fact was pretty much a "perfect storm" case. Some of the salient points:
* First, there have been similar cases before, and they didn't open the floodgates to litigation. There's no reason to assume that this will be any different.
* Second, in most cases proving access is an insurmountable hurdle, mainly because you have to get a guy who has every reason in the world to not admit something to admit it. The problem here was that Thicke pretty much served that admission up on a silver platter in the GQ interview. (On a related note, Robin Thicke should not be allowed within 500 yards of a journalist without supervision.)
* Third, they compounded the above in the trial by trying to walk the statement back, which made them look like liars - and juries HATE liars.
* Fourth, most songwriters aren't going to sue their peers for a number of social and legal reasons.
* Fifth, the perfect storm aspect was that you had an estate suing (so the usual restrictions don't apply), of an artist that both died young (so the statute of limitations wasn't an issue) and was a major force in the industry (so his influence is still significant), and they got handed proof of access (diminishing the risk of suing enough that it was much more viable.)
It's worth reading.
Good article, but I think it ultimately misses the point that no one pebble is responsible for the avalanche, but you wouldn't have one without them. This decision isn't new law, but it's another pebble in our broken, immoral copyright system, and it furthermore is also an example of, as mentioned in there, that fiduciary duties to maximize profits without accounting for social responsibility or ethics continue to achieve bad results for society as a whole.
@hsu, I think that this piece on the Blurred Lines case does a pretty good job of explaining why the sky is not falling, and in fact was pretty much a "perfect storm" case. Some of the salient points:
* First, there have been similar cases before, and they didn't open the floodgates to litigation. There's no reason to assume that this will be any different.
* Second, in most cases proving access is an insurmountable hurdle, mainly because you have to get a guy who has every reason in the world to not admit something to admit it. The problem here was that Thicke pretty much served that admission up on a silver platter in the GQ interview. (On a related note, Robin Thicke should not be allowed within 500 yards of a journalist without supervision.)
* Third, they compounded the above in the trial by trying to walk the statement back, which made them look like liars - and juries HATE liars.
* Fourth, most songwriters aren't going to sue their peers for a number of social and legal reasons.
* Fifth, the perfect storm aspect was that you had an estate suing (so the usual restrictions don't apply), of an artist that both died young (so the statute of limitations wasn't an issue) and was a major force in the industry (so his influence is still significant), and they got handed proof of access (diminishing the risk of suing enough that it was much more viable.)
It's worth reading.
Good article, but I think it ultimately misses the point that no one pebble is responsible for the avalanche, but you wouldn't have one without them. This decision isn't new law, but it's another pebble in our broken, immoral copyright system, and it furthermore is also an example of, as mentioned in there, that fiduciary duties to maximize profits without accounting for social responsibility or ethics continue to achieve bad results for society as a whole.
I tend to blame Uncle Milton for that, since he's the one who really promulgated the idea that the only duty that a person in a legal custodianship (whether it be an executor or a CEO) has is to the entity or entities whom he represents.
And the author of the piece agrees that the mess needs to be fixed. The problem is that most of the suggestions for fixing it are asking creators to take a haircut for the sake of everyone else, and then people act surprised when creators unsurprisingly respond "no".
(I've been debating whether or not to extrapolate my response to your earlier post into its own thread. Suffice it to say, there are some really questionable ideas dwelling in the arguments that you presented - I tend to find the argument "for the greater good' to be one that is potentially dangerous.)
Posts
This isn't really true. A lot of people come out break even or a loss, especially when risk adjusted for legal consequences, and still do it anyways. I think you vastly underestimate how much of it is because of a love of sharing, especially considering the guy you are quoting is a pirate who is concerned other people aren't pirating correctly, but still whole heartedly agrees with the idea of piracy.
Besides, the argument shouldn't really be that copyright should have to justify itself by the lack of piracy, but rather, copyright should have to justify itself on the basis that it costs almost nothing to let every man, woman, and child in the world listen to Blurred Lines, once it has been created. The monetary creation incentive is useful, but it comes with a lot of severely damaging caveats. It's worth noting that piracy acts in no insubstantial way as a de facto welfare for the third world, so less piracy and stronger copyright protections is literally stealing from the poor to give to the rich.
We shouldn't be afraid to take serious looks at other ways of doing media, where people offer content entirely free, on an ad supported basis, using patreon, using kickstarter (which could be used as a "ransom" model as well), on donations, selling services, etc, etc, etc. I think people have way too much of a traditionalist bias when it comes to thinking about how to go to an age where people furiously scribble notes of a play in the Globe Theatre to an age where value is created by denying people access to art and culture and ruthlessly guarding properties like a miser's horde (No One Lives Forever being a good example of a property where there is both a commercial and public desire to do more, but due to shitty IP laws, we'll likely never see it again because of callous indifference and greed).
Besides, legitimate products still can't compete on quality, price aside. DRM free media available in the format of your choice, with no regional restrictions, downloaded at a speed that will generally saturate your entire connection if you want, often with better language choices, etc, etc, etc. If you prefer downloading to streaming, I'd go so far as to say there's no provider in the world who can compete with good scene releases on quality / customer service. Copyright causes us to have vastly inferior goods, because the best distributors are the pirates. The optimal solution would be to find a compromise and tell many of the current middle men to shape up or take a hike.
I'm not sure my concerned on his views on privacy or police accountability can be mitigated.
I practice in a region covered by the Seventh Circuit, and have a friend who appeared before Posner. He's pretty darn awesome. He has some very, very interesting decisions. He'll never get nominated, and though age is one factor, I think the big one is that he's too unpredictable--or independent--to be tapped.
For example: http://talkingpointsmemo.com/dc/richard-posner-dissent-voter-id . On that dissent alone no Republican will touch him, I guarantee it.
All they host is trackers. It's the users who are sharing all the content, and earning zero for that.
To get back on track, Ted Olson for SCOTUS.
Olson!
I'm honestly confused by this. We are not in a debate with SCOTUS. We have no obligation to assume that they are arguing in good faith, especially when they clearly aren't. They're a political institution whose members often rule on the basis of political beliefs, at least in big, high-visibility cases like this. Is there anyone naive enough to think otherwise? And precisely because they, unlike all other government officials, are appointed for life and above review for anything short of high crimes and misdemeanors, we should pay special attention to their potential to abuse their position. In this case they issued an opinion whose logic is tortured, and tortured in such a way as to give special status to a specific doctrine of the religion of all five members of the majority. Why on earth wouldn't we discuss that in a thread about SCOTUS?
I think we do have an obligation to assume they're arguing in good faith, because it's critical to maintaining confidence in our republic and to maintaining our belief in the integrity of the court. If you tear at the foundations because you don't like what got built on them lately, you're not fixing the problem - you're just wrecking shit.
I don't think they're fundamentally a political institution, and I think a sharply focused review of the court's decisions (as opposed to a broadly partisan re-framing) bears this out. There are ideological differences that overlap on the venn diagram with political positions of various types, that's not always instructive and forces partisans who want to believe that the court is partisan to ignore all the decisions and opinions that run contrary to the narrative. I think casting this as naive is inflammatory and unnecessary. People can disagree with your cynicism about the court without being pollyannas about it, and your framing leaves me no room to dissent without placing myself, personally, in the firing line for insults entirely outside the issues being discussed. Which, by the way, is also the problem I have with your catholic conspiracy. Enough attacking people, please.
Finally, you're mis-characterizing me telling you to stop with the Lorcish conspiracy theories about catholics preferentially treating their own co-religionists as a call to not discuss the issue at all. Please do discuss the decision! Discuss the arguments, rip up their logic, etc etc. Leave the "some justices are catholic, therefore..." out of it, though. It's another permutation of the ridiculous "old dead white men" attack on the Constitution. It's tired, it's lazy, it's destructive to the republic, it's insulting, it's unnecessary, and it's wrong.
The argument that some Justices let their religious affiliation dictate their decisions begins here, and ends with bitter personal insults on the character and competence of at least 6 of the Justices (I didn't look to see what religious affiliation the other three were). The desire to undercut the entire discussion about the decision itself, by simply dismissing it as religiously motivated and thus invalid from the start, is very strong.
Resist that.
The justices are definitely partisan. Sometimes they don't allow their partisan instincts to rule their decision-making, but sometimes they do.
And the Ivy League as well.
Or, the Justices are not partisan, and sometimes their decisions align with partisans but sometimes they do not.
Back to my question from a few pages ago, is anyone else worried that Kennedy can use his "if we side against Burwell we'll be creating an unconstitutional law" logic to then side against Burwell and strike down the entire ACA as unconsitutional? Or is that beyond the scope of what's possible here?
yes, obviously, because that is routine and accurately reflects every employer-based health plan in existence.
As for your comment about whether we have an obligation to assume the justices are arguing in good faith, I think there is ample evidence that Scalia's malleable approach to jurisprudence indicates a lack of good faith on his part.
Note, for the record, I understand that "living constitution" proponents have a malleable approach to jurisprudence, and I have no problem with that. The difference between "living constitution" justices and Scalia who purports to be a textualist is that the "living constitution" justices admit to having a malleable approach, where Scalia, whose judicial philosophy abhors any malleability AND Scalia claims to never go outside his judicial philosophy, regularly breaks his judicial philosophy to comport with his feelings on the matter before him.
No, that's not really borne out by the evidence. The most partisan-aligned decisions are typically the ones where the justices also depart most from the principles of interpretation that they normally hold to.
I hope we can at least agree on the "let's not attack people, especially people in the thread" part
I'll only agree with the latter half of that. Scalia's a hack and deserves to be attacked in every post in this thread.
Well the ones that his wife wasn't bribed specifically for him to rule on anyway...
pleasepaypreacher.net
I am even more deeply confused than before. I don't understand the connection between opinions expressed in this thread and the potential dissolution of the Republic, and I certainly don't understand your oddly personal attachment to the sanctity and integrity of the Justices and their opinions. Casting aspersions on the character of the holders of high office is a proud and essential American tradition, and I would cheerfully burn the sacred Constitution to the ground before I gave that up. If you want to say that these particular aspersions are undeserved, that the SC is a magnificently apolitical institution of pure legal inquiry whose members never allow their legal views to be warped by their personal ones, I welcome that argument. It would be interesting and probably educational. Do you think the common framing by Court observers of liberal vs conservative Justices is all wrong? Intriguingly counterintuitive. I welcome seeing that case made. But trying to avoid having to make it at all by tarring the opposition with some bizarre slippery slope to anarchy is something I have no patience for at all.
I do agree that we should try to avoid personal insults and mischaracterizations in this conversation. Of course, I did not mischaracterize what you said as "a call not to discuss the issue at all," the issue being the legalities of the decision. I characterized your position as being that we should not discuss the religions or other personal facts of the Justices as an influence on their decisions. If that's not your position, I apologize, but that's my good-faith reading of it. In return, I would appreciate it if you stopped saying I was peddling anti-Catholic conspiracy theories. I can't claim it's destructive to the republic, but it is definitely tired, lazy, insulting, unnecessary, and wrong.
one thing that makes Kagan and Sotomayer such nice picks. They bring fundamentally different perspectives to the court as a litagator and criminal judge respectively.
No, the responsibility of maintaining the integrity of the court is on the court and the other two branches.
Pointing out members of the court arguing in bad faith does not harm that integrity. Arguing in bad faith harms it.
Kagan I'll grant you, Sotomayor's dissent in Brandt v. United States was bonkers
I don't know where that opinion came from.
Lord help me. I will never understand real property law. Possibly because I had a craptastic 1L instructor on the topic and avoided anything having to do with it forever after.
Technically, not actually real property law in this case. Here is a primer as someone who was a Realtor and so actually had to learn it. That being said, standard not a lawyer or even a realtor anymore disclaimer don't take this as advice yadda yadda yadda.
Generally with land the owner has rights to everything above and below the parcel of land exclusively. Think of rights to land like an object that can be broken up and sold in pieces. If you sell aspect 1 that doesn't mean you sell aspect 2. And if you buy aspect 1 you can only sell aspect 1. This is how most homeowners associations apply their covenants. The association owns the land in totality. It sells only specific rights to the land (like building) and maintains a requirement that certain aspects be maintained as a cost of the purchase. This is like any other contract. I could sell you my house and require that you wash my car every week forever in return and if you failed to wash my car i could take back the house since you failed to meet your contract. Or i could sell you a house and require that the mailbox is painted white and has a red flag on it subject to conditions for failure to meet spec.
Easement = Right to land owned by someone else. Think of a temporary easement like a loan. When the loan is up you gotta return the money (rights). A permanent easement is a permanent grant, you can't get the money(rights) back. For voluntary easements these work like any other contract. For involuntary easements there are general common law exceptions (for instance if your land is "locked" inside of another persons land they cannot deny you an easement to cross the property iirc. Even though you technically own the space above your land going off into infinity and the area underneath your land going to the center of the earth, no you really don't we're going to fly airplanes 30,000 feet above your head and you cannot be an ass and stop us).
Issue: Railroad grants were specific public takings for the purpose of railroads.
Argument: Easement ends -> Land goes to whom? Does it go to the government, since they, in the process of taking the rights to the land, paid for it? Does it go to the railroad companies since they were given the easement? does it go to the original land owners, because they owned the land in the first place
The court sided with the owners, saying that a 1942 decision against railroad companies applied here. The decision basically said (and i can't be specific here because i am lazy and neither read it nor the actual one I am discussing) that "no the railroads do not get the land, they were granted a temporary easement, which is over and so the land reverts". In this decision 8-1 the court said "that is binding it goes to the original owners, the governments right is waived, the original public use being no longer valid". Sotomayor said "no, the governments right is not waived, the government when it took for public use took all rights related to the land and did not take those rights on condition of use for railroad land, so the land goes to the government, who is the "owner" as prescribed by the 1942 case".
The issue is less about whether or not government taking works on normal real property law, but whether or not eminent domain secures all rights to land or if those rights are conditioned with respect to the specific authorization of eminent domain which is the 1875 law. Its not so clear to me that the argument should be decided in either way, and deciding to save the govt potentially hundreds of millions of dollars by saying "no we don't have to give the land back or repay for what we already bought" is only problematic in that the courts should ignore those aspects in their decisions. Additionally i am not sure that the law is written in a way as to be so specific that the authorization to take only applied to the right to build rail lines. If not specific then precedence would suggest that the intent was to keep the land (after all, no congress remedied the continued holding of that land, which would have been pretty easy if they thought that the govt was holding land that wasn't theirs). But if not specific then there still isn't really any problem with finally settling the matter of what the law said, and whichever way it goes isn't really a deal*.
Nor is it clear that, beyond that, the argument has any specific consequences for eminent domain law in general, since whether or not the taking was specific or in total would be an aspect of the law as written, and so if congress were concerned about not giving the land back could simply write their taking laws in a manner consistent with that intent. So overall, its doesn't seem like a particularly important thing to get upset about.
Someone who is less lazy and wants to actually read both decisions can correct me if they want
Snarky Aside: Frankly we are just lucky that the justices did not say "well the law was written a long time ago and so its invalid, congress has to rewrite the entirety of the federal code, at minimum, every 13 years"
*edit: Its possible for instance that they wanted to have such a dissent on record, to express the idea that this was not absolute in all instance, but similarly thought that the actual issue was clear in this case. So the other 8 justices essentially draw straws to write the dissent (or someone volunteers). I am not sure if this type of dynamic exists in the court. But it seems like a reasonable conjecture.
However, it's interesting that you characterize it as not "real property law" but as one of "contract law," and I think that comes out of how our two professions approach the topic. In law school, contract education might touch on property contracts, but anything involving easements was almost exclusively handled in property law. This is reflected on the multi-state bar exam where questions on easements and contracts involving real property were consider part of the "property law" portion, and this distinction was mirrored in the bar exam prep courses.
huh? could you expand on this?
The only specific difference between normal contract law (iirc) and property law beyond easement specific exemptions would be that, typically, remedy for failure to respect a covenant returns the property to its owners. So if you say "you can have the land if you don't build a house on it" and then I build a house on it, you now own all the rights again (including the house on the property iirc) and I get shafted for being a dumbass. While remedy for failure in normal contract law does not necessarily revert the terms of the contract unless specified in the contract.(I think)
fake edit because i don't want to amend the prior paragraph. I am sure there are also differences because its difficult to distinguish between owning the land and owning the buildings on the land. So there are some rights that actually inseparable and complicated. But most of the time this is moot.
@DoctorArch
OK so just realized where in the post i said "not real property law". I was actually referring to the fact that the issue hinged more on eminent domain and the specific text of the 1875 law than on the fact that it was about real property*. You could have the same law for any type of government taking.
E.G. Suppose there was a law that said "police officers can take your car if they need it to chase down a suspect" (no clue if this is actually a law). A govt agent takes a car and chases down a suspect. At the end of this the car owner is like "I want my car back" and the government says "no, we took the car to chase down the suspect but we can keep the car because the law doesn't say we have to give it back after".
Now this is clearly a ridiculous example because obviously the car would have to be returned, and any damages and depreciation paid for, because that would be the clear intent of the law. But if the law were constructed in a way that made the taking indefinite and fully paid for then the only recourse the property owner would have would have been if the original taking were illegal for some reason. SCOTUS essentially made a ruling on whether or not the law said "we will give back the car when we are done" or "we will continue to keep the car after we are done". But in this case the property in question was land.
So its not "actually real property law" because the issue isn't about how to execute real property law, its whether or not this specific law was taking all the rights to the land or was taking only certain rights under covenant. If the law is taking certain rights under covenant then end of use = return the land to the original owners. If the law is taking all rights and then granting rights to RR companies under covenant then end of use = return the land to the government
*indeed if it were about real property in general then this would have had massive implications for all eminent domain takings around the nation, since it would be saying that there was an implicit covenant in all eminent domain cases, and holy fuck that would be massive, you would have heard about how 8-1 SCOTUS just fucking upended eminent domain law and set precedent for original owners to reclaim massive tracts of federal, local, and state land. Where as in this case there is probably still a lot of land in question, but it only relates to specific railroad takings.
Eh..I mean the relationship both his wife and Thomas himself have with conservative lobbying organisations is pretty troubling, but his rulings, whenever he even deigns to write a brief explaining them, are pretty consistent. Even if I might feel like textualism/originalism are insanely out out of date judicial philosophies.
I mostly get the sense that the Thomases just use his political status/connections to funnel money into his wife's lobbying business. It's greasy, but all Thomas himself seems to care about is making yearly tours of the convention circuit. Which I'm sure means plenty of free food and hotel rooms at resorts.
This is a pretty fantastic analogy and really clears up the issue for those of us (ie. me) who know nothing about eminent domain law. Basically, the original exercise of eminent domain was like if in the process of taking your car the cop also threw a bag full of money at you. So after the car chase is done, is the commandeered vehicle considered bought and paid for by the government or does ownership revert back to the original owner and the bag full of money is just considered compensation for the temporary inconvenience. Is that about right?
Yes, though obviously with lots of different owners and complications eminent domain is like "we need your car for a public use so we're going to take it and pay for it" and this case is like "the law that authorized the taking of the car was it indefinite or was it conditional?"(because it could legit be either without much issue)
Sure they sound like they were made from the same studio, like how lots of Motown records have a similar sounding style, but you could say that for a ton of other music. And if "similar sounding" becomes the new copyright standard, then current artists are screwed.
The case was decided on the sheet music. Anyone familiar with the vastly different interpretations of even the same musical pieces knows that sheet music is the barest skeleton for how a song sounds.
It's a crappy ruling that's going to create a generation of lawsuits fueled by the music industry equivalent of the patent trolls.
It's an even worse precedent to allow a shitty defense to win the day because of the court of public opinion. They lost because when you have your guy take the stand and say things like “It sounds like you’re playing the same thing” in front of the jury, you deserve to lose on grounds of general incompetence.
So if you want to blame people for this ruling, blame Williams, Thicke, and their legal team, because they're the ones who screwed this pooch.
* First, there have been similar cases before, and they didn't open the floodgates to litigation. There's no reason to assume that this will be any different.
* Second, in most cases proving access is an insurmountable hurdle, mainly because you have to get a guy who has every reason in the world to not admit something to admit it. The problem here was that Thicke pretty much served that admission up on a silver platter in the GQ interview. (On a related note, Robin Thicke should not be allowed within 500 yards of a journalist without supervision.)
* Third, they compounded the above in the trial by trying to walk the statement back, which made them look like liars - and juries HATE liars.
* Fourth, most songwriters aren't going to sue their peers for a number of social and legal reasons.
* Fifth, the perfect storm aspect was that you had an estate suing (so the usual restrictions don't apply), of an artist that both died young (so the statute of limitations wasn't an issue) and was a major force in the industry (so his influence is still significant), and they got handed proof of access (diminishing the risk of suing enough that it was much more viable.)
It's worth reading.
Good article, but I think it ultimately misses the point that no one pebble is responsible for the avalanche, but you wouldn't have one without them. This decision isn't new law, but it's another pebble in our broken, immoral copyright system, and it furthermore is also an example of, as mentioned in there, that fiduciary duties to maximize profits without accounting for social responsibility or ethics continue to achieve bad results for society as a whole.
I tend to blame Uncle Milton for that, since he's the one who really promulgated the idea that the only duty that a person in a legal custodianship (whether it be an executor or a CEO) has is to the entity or entities whom he represents.
And the author of the piece agrees that the mess needs to be fixed. The problem is that most of the suggestions for fixing it are asking creators to take a haircut for the sake of everyone else, and then people act surprised when creators unsurprisingly respond "no".
(I've been debating whether or not to extrapolate my response to your earlier post into its own thread. Suffice it to say, there are some really questionable ideas dwelling in the arguments that you presented - I tend to find the argument "for the greater good' to be one that is potentially dangerous.)