Tag Archives: law

Idea Soup

Litigation Financing

Have some loose change under your mattress? If so, and the loose change comes in the millions of dollars, you may want to consider investing it. But, not in a paltry savings account or the stock market. You should consider investing it in litigation. Yes, there are funds, run by money managers and lawyers, that do nothing but sue for financial gain. And, if that so-called “litigation fund” happens to be suing for a cause that you believe in, then you’ll reap a two-fold reward: you’ll collect a handsome investment return, and you’ll get the pleasure of ruining your legal adversary in the process.

Here’s just one example. Burford Capital, a British litigation investment company, has recorded an almost 400 percent growth in profits over the last five years. The firm reported recent profits of $77 million and declared a staggering 70 percent net return on its investments.

So, perhaps you should ditch the notion of becoming the next Warren Buffet; trash the thought of investing in companies that innovate, create and build, and pour your retirement funds in companies that sue and litigate. Furthermore, if you seek a really stellar return on your hard-earned cash, then you should consider investing in litigation funds that sue media companies over the first amendment — that’s where the action and the money is today, and that’s where the next part of this ethically questionable story leads.

From Wired:

The revelation that Silicon Valley billionaire Peter Thiel bankrolled Hulk Hogan’s sex tape lawsuit against Gawker sent shockwaves through the media industry. Commentators had barely recovered from the $140 million in damages awarded to Hogan. Now they were grappling with a bigger question: Is this kind of financial arrangement even legal? Could it happen to them?

The short answer to both is yes—picking up the tab on someone else’s lawsuit is now perfectly legal (it wasn’t always), and people who do it aren’t required to reveal that they’re doing it or why. The practice is reviled by the business community, and yet Thiel, a staunch pro-business libertarian, has shown billionaires everywhere that it’s possible to not only sue a media company indirectly for revenge but to make money doing it. Now that the message is out, there’s nothing to stop other billionaires from following his lead.

“This [case] could really change the landscape, because everyone who has gripes about what the media has done is going to start thinking about dollars and cents and running to their lawyers,” says Thomas Julin, a partner at Miami-based law firm Hunton and Williams who focuses on First Amendment litigation.

“And it’s going to get lawyers thinking, ‘Maybe I should be more willing to represent other individuals against the media.’”

Regardless of how you feel about Gawker, Hogan, or Thiel, this financial arrangement sets a dangerous precedent for anyone running a business—especially a media business. Litigation finance is a booming industry, and Thiel’s success likely makes the entire media industry vulnerable to professional litigation financiers willing to fund other vendettas.

“Litigation financing is really dangerous,” says Bryan Quigley from the Institute for Legal Reform, the civil justice arm of the US. Chamber of Commerce, an advocate for American businesses. “There’s no doubt it’s going to create more litigation in general.”

Read the entire story here.

 

 

Idea Soup

MondayMap: 80 Years After Prohibition

Alcohol_control_in_United_States

Apparently, Prohibition (of alcohol sales, production and transportation) ended in the United States in 1933. But, you’d be surprised to learn that more than 80 years later many regions across the nation still have restrictions and bans.

The map shows areas where alcohol is restricted: red indicates that the sales of alcohol is banned (dry); blue shows that it is allowed (wet); and yellow denotes that the county is “partially dry” or “moist”.

Interestingly, Kansas, Tennessee and Mississippi are dry states by default and require individual counties to opt in to sell alcohol. Texas is a confusing patchwork: of Texas’s 254 counties, 11 are completely dry, 194 are partially dry, and 49 are entirely wet. And, to to add to the confusion, Texas prohibits off-premises sale of liquor — but not beer and wine — all day on Sunday and select holidays.

Read more here.

Image: Map shows dry (red), wet (blue), and mixed (yellow) counties in the United States as of March 2012. Courtesy of Wikipedia.

Idea Soup

The Free Market? Yeah Right

The US purports to be home of the free market. But we all know it’s not. Rather, it is home to vested and entrenched interests who will fight tooth-and-nail to maintain the status quo beneath the veil of self-written regulations and laws. This is called protectionism — manufacturers, media companies, airlines and suppliers all do it. Texas car dealers and their corporate lobbyists are masters at this game.

From ars technica:

In a turn of events that isn’t terribly surprising, a bill to allow Tesla Motors to sell cars directly to consumers in Texas has failed to make it to the floor, with various state representatives offering excuses about not wanting to “piss off all the auto dealers.”

The Lone Star State’s notoriously anti-Tesla stance—one of the strongest in the nation—is in many ways the direct legacy of powerful lawmaker-turned-lobbyist Gene Fondren, who spent much of his life ensuring that the Texas Automobile Dealers Association’s wishes were railroaded through the Texas legislature.

That legacy is alive and well, with Texas lawmakers refusing to pass bills in 2013 and again in 2015 to allow Tesla to sell to consumers. Per the state’s franchise laws, auto manufacturers like Tesla are only allowed to sell cars to independent third-party dealers. These laws were originally intended to protect consumers against the possibility of automakers colluding on pricing; today, though, they function as protectionist shields for the entrenched political interests of car dealers and their powerful state- and nationwide lobbyist organizations.

The anti-Tesla sentiment didn’t stop Texas from attempting to snag the contracts for Tesla Motors’ upcoming “Gigafactory,” the multibillion dollar battery factory that Tesla Motors CEO Elon Musk eventually chose to build in Reno, Nevada.

Speaking of Elon Musk—in a stunning display of total ignorance, Texas state representative Senfronia Thompson (a Democrat representing House District 141) had this to say about the bill’s failure: “I can appreciate Tesla wanting to sell cars, but I think it would have been wiser if Mr. Tesla had sat down with the car dealers first.”

 Apparently being even minimally familiar with the matters one legislates isn’t a requirement to serve in the Texas legislature. However, Thompson did receive many thousands in campaign contributions from the Texas Automobile Dealers Association, so perhaps she’s just doing what she’s told.

Read the entire story here.

Idea Soup

Texas Needs More Guns, Not Less

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Nine dead. Waco, Texas. May 17, 2015. Gunfight at Twin Peaks restaurant.

What this should tell us, particularly gun control advocates, is that Texans need more guns. After all, the US typically loosens gun restrictions after major gun related massacres — the only “civilized” country to do so.

Lawmakers recently passed two open carry gun laws in the Texas Senate. Once reconciled the paranoid governor — Greg Abbott, will surely sign. But even though this means citizens of the Lone State State will then be able to openly run around in public, go shopping or visit the local movie theater while packing a firearm, they still can’t walk around with an alcoholic beverage. Incidentally, in 2013 in the US 1,075 people under the age of 19 were killed by guns. That’s more children dying from gunfire than annual military casualties in Iraq and Afghanistan.

But, let’s leave the irony of this situation aside and focus solely on some good old fashioned sarcasm. Surely, it’s time to mandate that all adults in Texas should be required to carry a weapon. Then there would be less gunfights, right? And, while the Texas Senate is busy with the open carry law perhaps State Senators should mandate that all restaurants install double swinging doors, just like those seen in the saloons of classic TV Westerns.

From the Guardian:

Nine people were killed on Sunday and some others injured after a shootout erupted among rival biker gangs at a Central Texas restaurant, sending patrons and bystanders fleeing for safety, a police spokesman said.

The violence erupted shortly after noon at a busy Waco marketplace along Interstate 35 that draws a large lunchtime crowd. Waco police Sergeant W Patrick Swanton said eight people died at the scene of the shooting at a Twin Peaks restaurant and another person died at a hospital.

It was not immediately clear if bystanders were among the dead, although a local TV station, KCEN-TV, reported that all of the fatalities were bikers and police confirmed that no officers had been injured or killed.

Another local station, KXXV, reported that police had recovered firearms, knives, bats and chains from the scene. Restaurant employees locked themselves in freezers after hearing the shots, the station said.

How many injuries had occurred and the severity of those injuries was not known.

“There are still bodies on the scene of the parking lot at Twin Peaks,” Swanton said. “There are bodies that are scattered throughout the parking lot of the next adjoining business.”

A photograph from the scene showed dozens of motorcycles parked in a lot. Among the bikes, at least three people wearing what looked like biker jackets were on the ground, two on their backs and one face down. Police were standing a few feet away in a group. Several other people also wearing biker jackets were standing or sitting nearby.

Swanton said police were aware in advance that at least three rival gangs would be gathering at the restaurant and at least 12 Waco officers in addition to state troopers were at the restaurant when the fight began.

When the shooting began in the restaurant and then continued outside, armed bikers were shot by officers, Swanton said, explaining that the actions of law enforcement prevented further deaths.

Read the entire article here.

Video: Great Western Movie Themes.

Idea Soup, tD

The Biggest Threats to Democracy

Edward_SnowdenHistory reminds us of those critical events that pose threats to us on various levels: to our well being at a narrow level and to the foundations of our democracies at a much broader level. And, most of these existential threats seem to come from the outside: wars, terrorism, ethnic cleansing.

But it’s not quite that simple — the biggest threats come not from external sources of evil, but from within us. Perhaps the two most significant are our apathy and paranoia. Taken together they erode our duty to protect our democracy, and hand over ever-increasing power to those who claim to protect us. Thus, before the Nazi machine enslaved huge portions of Europe, the citizens of Germany allowed it to gain power; before Al-Qaeda and Isis and their terrorist look-a-likes gained notoriety local conditions allowed these groups to flourish. We are all complicit in our inaction — driven by indifference or fear, or both.

Two timely events serve to remind us of the huge costs and consequences of our inaction from apathy and paranoia. One from the not too distant past, and the other portends our future. First, it is Victory in Europe (VE) day, the anniversary of the Allied win in WWII, on May 8, 1945. Many millions perished through the brutal policies of the Nazi ideology and its instrument, the Wehrmacht, and millions more subsequently perished in the fight to restore moral order. Much of Europe first ignored the growing threat of the national socialists. As the threat grew, Europe continued to contemplate appeasement. Only later, as true scale of atrocities became apparent did leaders realize that the threat needed to be tackled head-on.

Second, a federal appeals court in the United States ruled on May 7, 2015 that the National Security Agency’s collection of millions of phone records is illegal. This serves to remind us of the threat that our own governments pose to our fundamental freedoms under the promise of continued comfort and security. For those who truly care about the fragility of democracy this is a momentous and rightful ruling. It is all the more remarkable that since the calamitous events of September 11, 2001 few have challenged this governmental overreach into our private lives: our phone calls, our movements, our internet surfing habits, our credit card history. We have seen few public demonstrations and all too little ongoing debate. Indeed, only through the recent revelations by Edward Snowden did the debate even enter the media cycle. And, the debate is only just beginning.

Both of these events show that only we, the people who are fortunate enough to live within a democracy, can choose a path that strengthens our governmental institutions and balances these against our fundamental rights. By corollary we can choose a path that weakens our institutions too. One path requires engagement and action against those who use fear to make us conform. The other path, often easier, requires that we do nothing, accept the status quo, curl up in the comfort of our cocoons and give in to fear.

So this is why the appeals court ruling is so important. While only three in number, the judges have established that our government has been acting illegally, yet supposedly on our behalf. While the judges did not terminate the unlawful program, they pointedly requested the US Congress to debate and then define laws that would be narrower and less at odds with citizens’ constitutional rights. So, the courts have done us all a great favor. One can only hope that this opens the eyes, ears and mouths of the apathetic and fearful so that they continuously demand fair and considered action from their elected representatives. Only then can we begin to make inroads against the real and insidious threats to our democracy — our apathy and our fear. And perhaps, also, Mr.Snowden can take a small helping of solace.

From the Guardian:

The US court of appeals has ruled that the bulk collection of telephone metadata is unlawful, in a landmark decision that clears the way for a full legal challenge against the National Security Agency.

A panel of three federal judges for the second circuit overturned an earlier rulingthat the controversial surveillance practice first revealed to the US public by NSA whistleblower Edward Snowden in 2013 could not be subject to judicial review.

But the judges also waded into the charged and ongoing debate over the reauthorization of a key Patriot Act provision currently before US legislators. That provision, which the appeals court ruled the NSA program surpassed, will expire on 1 June amid gridlock in Washington on what to do about it.

The judges opted not to end the domestic bulk collection while Congress decides its fate, calling judicial inaction “a lesser intrusion” on privacy than at the time the case was initially argued.

“In light of the asserted national security interests at stake, we deem it prudent to pause to allow an opportunity for debate in Congress that may (or may not) profoundly alter the legal landscape,” the judges ruled.

But they also sent a tacit warning to Senator Mitch McConnell, the Republican leader in the Senate who is pushing to re-authorize the provision, known as Section 215, without modification: “There will be time then to address appellants’ constitutional issues.”

“We hold that the text of section 215 cannot bear the weight the government asks us to assign to it, and that it does not authorize the telephone metadata program,” concluded their judgment.

“Such a monumental shift in our approach to combating terrorism requires a clearer signal from Congress than a recycling of oft?used language long held in similar contexts to mean something far narrower,” the judges added.

“We conclude that to allow the government to collect phone records only because they may become relevant to a possible authorized investigation in the future fails even the permissive ‘relevance’ test.

“We agree with appellants that the government’s argument is ‘irreconcilable with the statute’s plain text’.”

Read the entire story here.

Image: Edward Snowden. Courtesy of Wikipedia.

Idea Soup

No Work Past 6pm. C’est La Vie

les-deux-magots

Many westerners either love or hate the French. But, you have to hand it to them: where American’s love to work; the French, well, just love to do other stuff.

Famous for its maximum 35-hour work week enacted in 1999, the country recently established another restriction on employer demands. It is now illegal for superiors to demand that their office employees check computers, tablets or smartphones after 6pm. So, while the Brits must be whining that their near neighbors have gained yet another enviable characteristic, Americans must be leaving the country in droves. After all, 6pm is merely a signal that the workday is only half over in the United States. Mind you, the French do seem to live longer. Sacre bleu.

From the Independent:

It’s an international version of the postcode lottery. The dateline lottery, if you like, which means that if you are born in Limoges rather than Lancaster, you’re likely to live longer. The 2013 list of life expectancy compiled by the World Health Organisation has France in 13th position and the United Kingdom way behind in 29th spot.

The average life expectancy for these two countries, separated only by 23 miles of waterway, is 82.3 years and 81 years respectively. While it may not seem much of a difference at this remove, it’s something those Britons who are approaching their 81st birthdays might not be feeling too cheerful about.

We are repeatedly told that it is to do with the French diet, all that olive oil and fresh fruit and a glass of red wine with meals, which wards off heart disease. Anyone who’s been to provincial France, however, and tried to buy something from a shop between noon and 3pm, or, depending on where you are, on a Monday, Tuesday or Wednesday afternoon, might have stumbled upon the real reason for the greater longevity of the French. This is a place that still believes in half-day closing and taking lunch breaks. This is a country that has a very different attitude towards work from some of its close Northern European neighbours. And the chances are that, if your work-life balance is tilted more towards life, you are going to live longer.

France is the only country in the world to have adopted a 35-hour working week and this is strictly enforced. So much so that, yesterday, an agreement was signed between bosses and unions representing more than a million white-collar employees that would strike the average British worker as an edict from Cloud Cuckoo Land. It is a legally enforceable deal that means workers should not be contacted once they have left the office. It is as if the smartphone had never been invented (and yes, I know, many of us might hanker for a return to those days).

It’s rather ironic that French businesses in the technology sector will not be allowed to urge their employees to check emails once they’ve done their day’s work, and the unions will from now on be measuring what they are neatly calling “digital working time”.

How quaint these ideas seem to us. Heaven only knows what the average British working week would be if digital hours were taken into consideration. No matter what time of the day or night, whatever we may be doing in our leisure hours, we are only a ping away from being back at a virtual desk. I rarely have dinner with anyone these days who isn’t attached to their smartphone, waiting for a pause in the conversation so they can check their emails. Not good for digestion, not good for quality of life.

Here’s the thing, too. French productivity levels outstrip those of Britain and Germany, and French satisfaction with their quality of life is above the OECD average. No wonder, we may say. We’d all like to take a couple of hours off for lunch, washed down with a nice glass of Côtes du Rhône, and then switch our phones off as soon as we leave work. It’s just that our bosses won’t let us.

Read the entire article here (before 6pm if you’re in France at a work computer).

Idea Soup, tD

Is Walmart Wiccan? Is BestBuy Baptist? Is McDonalds Methodist?

So much for the Roberts Supreme Court. Conservatives would suggest that the court is intent on protecting the Constitution from assault by progressive liberals and upholding its libertarian conservativism. Yet, protections of and for the individual seem to have taken a backseat to recent rulings that promote corporate power — a somewhat new invention; perhaps, none more so than recent decisions that ruled corporations to be “people”. But the court is not standing still — not content with animating a business with lifeblood, soon, the court is likely to establish whether corporations have a religious spirit as well as individual sentience. Sticks of oxymoronic progressivism.

From the Washington Post:

If you thought this “corporations are people” business was getting out of hand, brace yourself. On Tuesday, the Supreme Court accepted two cases that will determine whether a corporation can deny contraceptive coverage to its female employees because of its religious beliefs.

The cases concern two of the most politically charged issues of recent years: who is exempted from the requirements of the Affordable Care Act, and whether application of the First Amendment’s free speech protections to corporations, established by the court’s 2010 decision in Citizens United, means that the First Amendment’s protections of religious beliefs must also be extended to corporations.

The Affordable Care Act requires employers to offer health insurance that covers contraception for their female employees. Churches and religious institutions are exempt from that mandate. But Hobby Lobby, a privately owned corporation that employs 13,000 people of all faiths — and, presumably, some of no faith — in its 500 craft stores says that requiring it to pay for contraception violates its religious beliefs — that is, the beliefs of its owners, the Green family.

In a brief submitted to a federal court, the Greens said that some forms of contraception — diaphragms, sponges, some versions of the pill — were fine by them, but others that prevented embryos from implanting in the womb were not. The U.S. Court of Appeals for the 10th Circuit upheld the Greens’ position in June in a decision explicitly based on “the First Amendment logic of Citizens United.” Judge Timothy Tymkovich wrote: “We see no reason the Supreme Court would recognize constitutional protection for a corporation’s political expression but not its religious expression.”

Tymkovich’s assessment of how the five right-wing justices on the Supreme Court may rule could prove correct — but what a mess such a ruling would create! For one thing, the Green family’s acceptance of some forms of contraception and rejection of others, while no doubt sincere, suggests that they, like many people of faith, adhere to a somewhat personalized religion. The line they draw is not, for instance, the same line that the Catholic Church draws.

Individual believers and non-believers draw their own lines on all kinds of moral issues every day. That’s human nature. They are free to say that their lines adhere to or are close to specific religious doctrines. But to extend the exemptions that churches receive to secular, for-profit corporations that claim to be following religious doctrine, but may in fact be nipping it here and tucking it there, would open the door to a range of idiosyncratic management practices inflicted on employees. For that matter, some religions have doctrines that, followed faithfully, could result in bizarre and discriminatory management practices.

The Supreme Court has not frequently ruled that religious belief creates an exemption from following the law. On the contrary, in a 1990 majority opinion, Justice Antonin Scalia wrote that Native Americans fired for smoking peyote as part of a religious ceremony had no right to reinstatement. It “would be courting anarchy,” Scalia wrote in Employment Division v. Smith, to allow them to violate the law just because they were “religious objectors” to it. “An individual’s religious beliefs,” he continued, cannot “excuse him from compliance with an otherwise valid law.”

It will be interesting to see whether Scalia still believes that now that he’s being confronted with a case where the religious beliefs in question may be closer to his own.

The other issue all this raises: Where does this corporations-are-people business start and stop? Under the law, corporations and humans have long had different standards of responsibility. If corporations are treated as people, so that they are free to spend money in election campaigns and to invoke their religious beliefs to deny a kind of health coverage to their workers, are they to be treated as people in other regards? Corporations are legal entities whose owners are not personally liable for the company’s debts, whereas actual people are liable for their own. Both people and corporations can discharge their debts through bankruptcy, but there are several kinds of bankruptcy, and the conditions placed on people are generally far more onerous than those placed on corporations. If corporations are people, why aren’t they subject to the same bankruptcy laws that people are? Why aren’t the owners liable for corporate debts as people are for their own?

Read the entire article here.

Idea Soup

Is Your Company Catholic or Baptist?

Is your business jewish? Does your corporation follow the book of tao or the book of mormon or those of shadows (wicca) or yasna (zoroastrianism)? Or, is your company baptist, muslim, hindu or atheist or a practitioner in one of the remaining estimated 4,200 belief systems?

In mid-2012 the U.S. Supreme Court affirmed that corporations are indeed people when it ruled for Citizens United against the State of Montana in allowing unlimited corporate spending in local elections. Now, we await another contentious and perplexing ruling from the justices that may assign spirituality to a corporation alongside personhood.

Inventors of board games take note: there is surely a game to be made from matching one’s favorite companies with religions of the world.

From Slate:

Remember the big dustup last summer over the contraception mandate in President Obama’s health reform initiative? It required companies with more than 50 employees to provide insurance, including for contraception, as part of their employees’ health care plans. The constitutional question was whether employers with religious objections to providing coverage for birth control could be forced to do so under the new law. The Obama administration tweaked the rules a few times to try to accommodate religious employers, first exempting some religious institutions—churches and ministries were always exempt—and then allowing companies that self-insure to use a separate insurance plan to pay and provide for the contraception. Still, religious employers objected, and lawsuits were filed, all 60 of them.

A year later, the courts have begun to weigh in, and the answer has slowly begun to emerge: maybe yes, maybe no. It all depends on whether corporations—which already enjoy significant free-speech rights—can also invoke religious freedom rights enshrined in the First Amendment.

Last Friday, the 3rd U.S. Circuit Court of Appeals upheld the contraception mandate, rejecting a challenge from a Pennsylvania-based cabinetmaker who claimed that as a Mennonite he should not be compelled to provide contraceptive coverage to his 950 employees because the mandate violates the company’s rights under the free exercise clause of the First Amendment and the Religious Freedom Restoration Act. The owner considers some of the contraception methods at issue—specifically, the morning-after and week-after pills—abortifacients.

The appeals court looked carefully to the precedent created by Citizens United—the 2010 case affording corporations free-speech rights when it came to election-related speech—to determine whether corporations also enjoy constitutionally protected religious freedom. Writing for the two judges in the majority, Judge Robert Cowen found that although there was “a long history of protecting corporations’ rights to free speech,” there was no similar history of protection for the free exercise of religion. “We simply cannot understand how a for-profit, secular corporation—apart from its owners—can exercise religion,” he concluded. “A holding to the contrary … would eviscerate the fundamental principle that a corporation is a legally distinct entity from its owners.”

Cowan also flagged the absolute novelty of the claims, noting that there was almost no case law suggesting that corporations can hold religious beliefs. “We are not aware of any case preceding the commencement of litigation about the Mandate, in which a for-profit, secular corporation was itself found to have free exercise rights.” Finally he took pains to distinguish the corporation, Conestoga, from its legal owners. “Since Conestoga is distinct from the Hahns, the Mandate does not actually require the Hahns to do anything. … It is Conestoga that must provide the funds to comply with the Mandate—not the Hahns.”

Judge Kent Jordan, dissenting at length in the case, said that for-profit, secular corporations can surely avail themselves of the protections of the religion clauses. “To recognize that religious convictions are a matter of individual experience cannot and does not refute the collective character of much religious belief and observance … Religious opinions and faith are in this respect akin to political opinions and passions, which are held and exercised both individually and collectively.”

The 3rd Circuit decision creates a significant split between the appeals courts, because a few short weeks earlier, the Colorado-based 10th U.S. Circuit Court of Appeals ruled in favor of Hobby Lobby Stores Inc., finding by a 5–3 margin that corporations can be persons entitled to assert religious rights. Hobby Lobby is a chain of crafts supply stores located in 41 states. The 10th Circuit upheld an injunction blocking the contraception requirement because it offended the company owners’ religious beliefs. The majority in the 3rd Circuit wrote that it “respectfully disagrees” with the 10th Circuit. A split of this nature makes Supreme Court review almost inevitable.

The Supreme Court has long held the free exercise clause of the First Amendment to prohibit governmental regulation of religious beliefs, but a long line of cases holds that not every regulation that inflects upon your religious beliefs is unconstitutional. The Religious Freedom Restoration Act bars the federal government from imposing a “substantial burden” on anyone’s “exercise of religion” unless it is “the least restrictive means of furthering [a] compelling governmental interest.” The Obama administration and the judges who have refused to grant injunctions contend that the burden here is insignificant, amounting to a few dollars borne indirectly by the employer to facilitate independent, private decisions made by their female employees. They also argue that they are promoting a compelling government interest in providing preventive health care to Americans. The employers and the judges who have enjoined the birth-control provision claim that they are being forced to choose between violating protected religious beliefs and facing crippling fines and that free or inexpensive birth control is available at community health centers and public clinics.

Basically, the constitutional question will come down to whether a for-profit, secular corporation can hold religious beliefs and convictions, or whether—as David Gans explains here —“the Court’s cases recognize a basic, common-sense difference between living, breathing, individuals—who think, possess a conscience, and a claim to human dignity—and artificial entities, which are created by the law for a specific purpose, such as to make running a business more efficient and lucrative.” Will Baude takes the opposite view, explaining that the 3rd Circuit’s reasoning—that “ ‘corporations have no consciences, no beliefs, no feelings, no thoughts, no desires’ … would all prove too much, because they are technically true of any organizational association, including … a church!” Baude likens the claim that corporations can never have religious freedom rights to the claim that corporations—including the New York Times—can never have free-speech rights.

Part of the problem, at least in the case of Hobby Lobby and Conestoga, is that neither corporation was designed to do business as religious entities. It has been clear since the nation’s founding that corporations enjoy rights in connection to the purposes for which they were created—which is why the administration already exempts religious employers whose purpose is to inculcate religious values and chiefly employ and serve people who share their religious tenets. This is about companies that don’t meet those criteria. As the dissenters at the 10th Circuit observed, the fact that some “spiritual corporations” have some religious purposes doesn’t make every corporation a religious entity. And as professor Elizabeth Sepper of Washington University puts it in a new law-review article on the subject: “Corporations, as conglomerate entities, exist indefinitely and independently of their shareholders. They carry out acts and affect individual lives, and have an identity that is larger than their constituent parts. Walmart is Walmart, even when Sam Walton resigns.”

The rest of the problem is self-evident. Where does it stop? Why does your boss’ religious freedom allow her to curtail your own? The dangers in allowing employers to exercise a religious veto over employee health care are obvious. Can an employer deny you access to psychiatric care if he opposes it on religious grounds? To AIDS medications? To gelatin-covered pills? Constitutional protections of a single employer’s individual rights of conscience and belief become a bludgeon by which he can dictate the most intimate health decisions of his workers, whose own religious rights and constitutional freedoms become immaterial.

Read the entire article here.

Image courtesy of ThinkProgress.

BigBang, tD, Technica

Law, Common Sense and Your DNA

Paradoxically the law and common sense often seem to be at odds. Justice may still be blind, at least in most open democracies, but there seems to be no question as to the stupidity of much of our law.

Some examples: in Missouri it’s illegal to drive with an uncaged bear in the car; in Maine, it’s illegal to keep Christmas decorations up after January 14th; in New Jersey, it’s illegal to wear a bulletproof vest while committing murder; in Connecticut, a pickle is not an official, legal pickle unless it can bounce; in Louisiana, you can be fined $500 for instructing a pizza delivery service to deliver pizza to a friend unknowingly.

So, today we celebrate a victory for common sense and justice over thoroughly ill-conceived and badly written law — the U.S. Supreme Court unanimously struck down laws granting patents to corporations for human genes.

Unfortunately though, due to the extremely high financial stakes this is not likely to be the last we hear about big business seeking to patent or control the building blocks to life.

From the WSJ:

The Supreme Court unanimously ruled Thursday that human genes isolated from the body can’t be patented, a victory for doctors and patients who argued that such patents interfere with scientific research and the practice of medicine.

The court was handing down one of its most significant rulings in the age of molecular medicine, deciding who may own the fundamental building blocks of life.

The case involved Myriad Genetics Inc., which holds patents related to two genes, known as BRCA1 and BRCA2, that can indicate whether a woman has a heightened risk of developing breast cancer or ovarian cancer.

Justice Clarence Thomas, writing for the court, said the genes Myriad isolated are products of nature, which aren’t eligible for patents.

“Myriad did not create anything,” Justice Thomas wrote in an 18-page opinion. “To be sure, it found an important and useful gene, but separating that gene from its surrounding genetic material is not an act of invention.”

Even if a discovery is brilliant or groundbreaking, that doesn’t necessarily mean it’s patentable, the court said.

However, the ruling wasn’t a complete loss for Myriad. The court said that DNA molecules synthesized in a laboratory were eligible for patent protection. Myriad’s shares soared after the court’s ruling.

The court adopted the position advanced by the Obama administration, which argued that isolated forms of naturally occurring DNA weren’t patentable, but artificial DNA molecules were.

Myriad also has patent claims on artificial genes, known as cDNA.

The high court’s ruling was a win for a coalition of cancer patients, medical groups and geneticists who filed a lawsuit in 2009 challenging Myriad’s patents. Thanks to those patents, the Salt Lake City company has been the exclusive U.S. commercial provider of genetic tests for breast cancer and ovarian cancer.

“Today, the court struck down a major barrier to patient care and medical innovation,” said Sandra Park of the American Civil Liberties Union, which represented the groups challenging the patents. “Because of this ruling, patients will have greater access to genetic testing and scientists can engage in research on these genes without fear of being sued.”

Myriad didn’t immediately respond to a request for comment.

The challengers argued the patents have allowed Myriad to dictate the type and terms of genetic screening available for the diseases, while also dissuading research by other laboratories.

Read the entire article here.

Image: Gene showing the coding region in a segment of eukaryotic DNA. Courtesy of Wikipedia.

Idea Soup

What’s In a Name?

Recently we posted a fascinating story about a legal ruling in Iceland that allowed parents to set aside centuries of Icelandic history by naming their girl “Blaer” — a traditionally male name. You see Iceland has an official organization — the Iceland Naming Committee — that regulates and decides if a given name is acceptable (by Icelandic standards).

Well, this got us thinking about rules and conventions in other nations. For instance, New Zealand will not allow parents to name a child “Pluto”, however “Number 16 Bus Shelter” and “Violence” recently got the thumbs up. Some misguided or innovative (depending upon your perspective) New Zealanders have unsuccessfully tried to name their offspring: “*” (yes, asterisk), “.” (period or full-stop), “V”, and “Emperor”.

Not to be outdone, a U.S. citizen recently legally changed his name to “In God” (first name) “We Trust” (last name). Humans are indeed a strange species.

From CNN:

Lucifer cannot be born in New Zealand.

And there’s no place for Christ or a Messiah either.

In New Zealand, parents have to run by the government any name they want to bestow on their baby.

And each year, there’s a bevy of unusual ones too bizarre to pass the taste test.

The country’s Registrar of Births, Deaths and Marriages shared that growing list with CNN on Wednesday.

Four words:

What were they thinking?

In the past 12 years, the agency had to turn down not one, not two, but six sets of parents who wanted to name their child “Lucifer.”

Also shot down were parents who wanted to grace their child with the name “Messiah.” That happened twice.

“Christ,” too, was rejected.

Specific rules

As the agency put it, acceptable names must not cause offense to a reasonable person, not be unreasonably long and should not resemble an official title and rank.

It’s no surprise then that the names nixed most often since 2001 are “Justice” (62 times) and “King” (31 times).

Some of the other entries scored points in the creativity department — but clearly didn’t take into account the lifetime of pain they’d bring.

“Mafia No Fear.” “4Real.” “Anal.”

Oh, come on!

Then there were the parents who preferred brevity through punctuation. The ones who picked ‘”*” (the asterisk) or ‘”.”(period).

Slipping through

Still, some quirky names do make it through.

In 2008, the country made made international news when the naming agency allowed a set of twins to be named ‘

“Benson” and “Hedges” — a popular cigarette brand — and OK’d the names “Violence” and “Number 16 Bus Shelter.”

Asked about those examples, Michael Mead of the Internal Affairs Department (under which the agency falls) said, “All names registered with the Department since 1995 have conformed to these rules.”

And what happens when parents don’t conform?

Four years ago, a 9-year-old girl was taken away from her parents by the state so that her name could be changed from “Talula Does the Hula From Hawaii.”

Not alone

To be sure, New Zealand is not the only country to act as editor for some parent’s wacky ideas.

Sweden also has a naming law and has nixed attempts to name children “Superman,” “Metallica,” and the oh-so-easy-to-pronounce “Brfxxccxxmnpcccclllmmnprxvclmnckssqlbb11116.”

In 2009, the Dominican Republic contemplated banning unusual names after a host of parents began naming their children after cars or fruit.

In the United States, however, naming fights have centered on adults.

In 2008, a judge allowed an Illinois school bus driver to legally change his first name to “In God” and his last name to “We Trust.”

But the same year, an appeals court in New Mexico ruled against a man — named Variable — who wanted to change his name to “F— Censorship!”

Here is a list of some the names banned in New Zealand since 2001 — and how many times they came up

Justice:62

King:31

Princess:28

Prince:27

Royal:25

Duke:10

Major:9

Bishop:9

Majesty:7

J:6

Lucifer:6

using brackets around middle names:4

Knight:4

Lady:3

using back slash between names:8

Judge:3

Royale:2

Messiah:2

T:2

I:2

Queen:2

II:2

Sir:2

III:2

Jr:2

E:2

V:2

Justus:2

Master:2

Constable:1

Queen Victoria:1

Regal:1

Emperor:1

Christ:1

Juztice:1

3rd:1

C J :1

G:1

Roman numerals III:1

General:1

Saint:1

Lord:1

. (full stop):1

89:1

Eminence:1

M:1

VI:1

Mafia No Fear:1

2nd:1

Majesti:1

Rogue:1

4real:1

* (star symbol):1

5th:1

S P:1

C:1

Sargent:1

Honour:1

D:1

Minister:1

MJ:1

Chief:1

Mr:1

V8:1

President:1

MC:1

Anal:1

A.J:1

Baron:1

L B:1

H-Q:1

Queen V:1

Read the entire article following the jump.

Arts and Letters

The War on Apostrophes

No, we don’t mean war on apostasy, for which many have been hung, drawn, quartered, burned and beheaded. And no, “apostrophes” are not a new sect of fundamentalist terrorists.

Apostrophes are punctuation, and a local city council in Britain has deemed to outlaw them. Why?

From the Guardian:

The sometimes vexing question of where and when to add an apostrophe appears to have been solved in one corner of Devon: the local authority is planning to do away with them altogether.

Later this month members of Mid Devon district council’s cabinet will discuss formally banning the pesky little punctuation marks from its (no apostrophe needed) street signs, apparently to avoid “confusion”.

The news of the Tory-controlled council’s (apostrophe required) decision provoked howls of condemnation on Friday from champions of plain English, fans of grammar, and politicians. Even the government felt the need to join the campaign to save the apostrophe.

The Plain English Campaign led the criticism. “It’s nonsense,” said Steve Jenner, spokesperson and radio presenter. “Where’s it going to stop. Are we going to declare war on commas, outlaw full stops?”

Jenner was puzzled over why the council appeared to think it a good idea not to have punctuation on signs. “If it’s to try to make things clearer, it’s not going to work. The whole purpose of punctuation is to make language easier to understand. Is it because someone at the council doesn’t understand how it works?”

Jenner suggested the council was providing a bad example to children who were – hopefully – being taught punctuation at school only to not see it being used correctly on street signs. “It seems a bit hypocritical,” he added.

Sian Harris, lecturer in English literature at Exeter University, said the proposals were likely to lead to greater confusion. She said: “Usually the best way to teach about punctuation is to show practical examples of it – removing [apostrophes] from everyday life would be a terrible shame and make that understanding increasingly difficult. English is a complicated language as it is — removing apostrophes is not going to help with that at all.”

Ben Bradshaw, the former culture secretary and Labour MP for Exeter, condemned the plans on Twitter. He wrote a precisely punctuated tweet: “Tory Mid Devon Council bans the apostrophe to ‘avoid confusion’ … Whole point of proper grammar is to avoid confusion!”

The council’s plans caused a stir 200 miles away in Whitehall, where the Department for Communities and Local Government came out in defence of punctuation. A spokesman said: “Whilst this is ultimately a matter for the local council, ministers’ view is that England’s apostrophes should be cherished.”

To be fair to modest Mid Devon, it is not the only authority to pick on the apostrophe. Birmingham did the same three years ago (the Mail went with the headline The city where apostrophes arent welcome).

The book retailer Waterstones caused a bit of a stir last year when it ditched the mark.

The council’s communications manager, Andrew Lacey, attempted to dampen down the controversy. Lacey said: “Our proposed policy on street naming and numbering covers a whole host of practical issues, many of which are aimed at reducing potential confusion over street names.

“Although there is no national guidance that stops apostrophes being used, for many years the convention we’ve followed here is for new street names not to be given apostrophes.”

He said there were only three official street names in Mid Devon which include them: Beck’s Square and Blundell’s Avenue, both in Tiverton, and St George’s Well in Cullompton. All were named many, many years ago.

“No final decision has yet been made and the proposed policy will be discussed at cabinet,” he said.

Read the entire story after the jump.

Image: Mid Devon District Council’s plan is presumably to avoid errors such as this (from Hackney, London). Courtesy of Guardian / Andy Drysdale / Rex Features.

Idea Soup

2013: Mississippi Officially Abolishes Slavery

The 13th Amendment to the United States Constitution was enacted in December 1865. It abolished slavery.

But, it seems that someone in Mississippi did not follow the formal process. So, the law was officially ratified only a couple of weeks ago — 147 years late. Thanks go to two enterprising scholars and the movie Lincoln.

[div class=attrib]From the Guardian:[end-div]

Mississippi has officially ratified the 13th amendment to the US constitution, which abolishes slavery and which was officially noted in the constitution on 6 December 1865. All 50 states have now ratified the amendment.

Mississippi’s tardiness has been put down to an oversight that was only corrected after two academics embarked on research prompted by watching Lincoln, Steven Spielberg’s Oscar-nominated film about president Abraham Lincoln’s efforts to secure the amendment.

Dr Ranjan Batra, a professor in the department of neurobiology and anatomical sciences at the University of Mississippi Medical Center, saw Spielberg’s film and wondered about the implementation of the 13th amendment after the Civil War. He discussed the issue with Ken Sullivan, an anatomical material specialist at UMC, who began to research the matter.

Sullivan, a longtime resident of the Mississippi, remembered that a 1995 move to ratify the 13th amendment had passed the state Senate and House. He tracked down a copy of the bill and learned that its last paragraph required the secretary of state to send a copy to the office of the federal register, to officially sign it into law. That copy was never sent.

Sullivan contacted the current Mississippi secretary of state, Delbert Hosemann, who filed the paperwork for the passage of the bill on 30 January. The bill passed on 7 February. Hosemann said the passage of the bill “was long overdue”.

 

[div class=attrib]Read the entire article following the jump.[end-div]

[div class=attrib]Seal of the State of Mississippi. Courtesy of Wikipedia.[end-div]

Idea Soup, Technica

The Police Drones Next Door

You might expect to find police drones in the pages of a science fiction novel by Philip K. Dick or Iain M. Banks. But by 2015, citizens of the United States may well see these unmanned flying machines patrolling the skies over the homeland. The U.S. government recently pledged to loosen Federal Aviation Administration (FAA) restrictions that would allow local law enforcement agencies to use drones in just a few short years. So, soon the least of your worries will be traffic signal cameras and the local police officer armed with a radar gun. Our home-grown drones are likely to be deployed first for surveillance. But, undoubtedly armaments will follow. Hellfire missiles over Helena, Montana anyone?

[div class=attrib]From National Geographic:[end-div]

At the edge of a stubbly, dried-out alfalfa field outside Grand Junction, Colorado, Deputy Sheriff Derek Johnson, a stocky young man with a buzz cut, squints at a speck crawling across the brilliant, hazy sky. It’s not a vulture or crow but a Falcon—a new brand of unmanned aerial vehicle, or drone, and Johnson is flying it. The sheriff ’s office here in Mesa County, a plateau of farms and ranches corralled by bone-hued mountains, is weighing the Falcon’s potential for spotting lost hikers and criminals on the lam. A laptop on a table in front of Johnson shows the drone’s flickering images of a nearby highway.

Standing behind Johnson, watching him watch the Falcon, is its designer, Chris Miser. Rock-jawed, arms crossed, sunglasses pushed atop his shaved head, Miser is a former Air Force captain who worked on military drones before quitting in 2007 to found his own company in Aurora, Colorado. The Falcon has an eight-foot wingspan but weighs just 9.5 pounds. Powered by an electric motor, it carries two swiveling cameras, visible and infrared, and a GPS-guided autopilot. Sophisticated enough that it can’t be exported without a U.S. government license, the Falcon is roughly comparable, Miser says, to the Raven, a hand-launched military drone—but much cheaper. He plans to sell two drones and support equipment for about the price of a squad car.

A law signed by President Barack Obama in February 2012 directs the Federal Aviation Administration (FAA) to throw American airspace wide open to drones by September 30, 2015. But for now Mesa County, with its empty skies, is one of only a few jurisdictions with an FAA permit to fly one. The sheriff ’s office has a three-foot-wide helicopter drone called a Draganflyer, which stays aloft for just 20 minutes.

The Falcon can fly for an hour, and it’s easy to operate. “You just put in the coordinates, and it flies itself,” says Benjamin Miller, who manages the unmanned aircraft program for the sheriff ’s office. To navigate, Johnson types the desired altitude and airspeed into the laptop and clicks targets on a digital map; the autopilot does the rest. To launch the Falcon, you simply hurl it into the air. An accelerometer switches on the propeller only after the bird has taken flight, so it won’t slice the hand that launches it.

The stench from a nearby chicken-processing plant wafts over the alfalfa field. “Let’s go ahead and tell it to land,” Miser says to Johnson. After the deputy sheriff clicks on the laptop, the Falcon swoops lower, releases a neon orange parachute, and drifts gently to the ground, just yards from the spot Johnson clicked on. “The Raven can’t do that,” Miser says proudly.

Offspring of 9/11

A dozen years ago only two communities cared much about drones. One was hobbyists who flew radio-controlled planes and choppers for fun. The other was the military, which carried out surveillance missions with unmanned aircraft like the General Atomics Predator.

Then came 9/11, followed by the U.S. invasions of Afghanistan and Iraq, and drones rapidly became an essential tool of the U.S. armed forces. The Pentagon armed the Predator and a larger unmanned surveillance plane, the Reaper, with missiles, so that their operators—sitting in offices in places like Nevada or New York—could destroy as well as spy on targets thousands of miles away. Aerospace firms churned out a host of smaller drones with increasingly clever computer chips and keen sensors—cameras but also instruments that measure airborne chemicals, pathogens, radioactive materials.

The U.S. has deployed more than 11,000 military drones, up from fewer than 200 in 2002. They carry out a wide variety of missions while saving money and American lives. Within a generation they could replace most manned military aircraft, says John Pike, a defense expert at the think tank GlobalSecurity.org. Pike suspects that the F-35 Lightning II, now under development by Lockheed Martin, might be “the last fighter with an ejector seat, and might get converted into a drone itself.”

At least 50 other countries have drones, and some, notably China, Israel, and Iran, have their own manufacturers. Aviation firms—as well as university and government researchers—are designing a flock of next-generation aircraft, ranging in size from robotic moths and hummingbirds to Boeing’s Phantom Eye, a hydrogen-fueled behemoth with a 150-foot wingspan that can cruise at 65,000 feet for up to four days.

More than a thousand companies, from tiny start-ups like Miser’s to major defense contractors, are now in the drone business—and some are trying to steer drones into the civilian world. Predators already help Customs and Border Protection agents spot smugglers and illegal immigrants sneaking into the U.S. NASA-operated Global Hawks record atmospheric data and peer into hurricanes. Drones have helped scientists gather data on volcanoes in Costa Rica, archaeological sites in Russia and Peru, and flooding in North Dakota.

So far only a dozen police departments, including ones in Miami and Seattle, have applied to the FAA for permits to fly drones. But drone advocates—who generally prefer the term UAV, for unmanned aerial vehicle—say all 18,000 law enforcement agencies in the U.S. are potential customers. They hope UAVs will soon become essential too for agriculture (checking and spraying crops, finding lost cattle), journalism (scoping out public events or celebrity backyards), weather forecasting, traffic control. “The sky’s the limit, pun intended,” says Bill Borgia, an engineer at Lockheed Martin. “Once we get UAVs in the hands of potential users, they’ll think of lots of cool applications.”

The biggest obstacle, advocates say, is current FAA rules, which tightly restrict drone flights by private companies and government agencies (though not by individual hobbyists). Even with an FAA permit, operators can’t fly UAVs above 400 feet or near airports or other zones with heavy air traffic, and they must maintain visual contact with the drones. All that may change, though, under the new law, which requires the FAA to allow the “safe integration” of UAVs into U.S. airspace.

If the FAA relaxes its rules, says Mark Brown, the civilian market for drones—and especially small, low-cost, tactical drones—could soon dwarf military sales, which in 2011 totaled more than three billion dollars. Brown, a former astronaut who is now an aerospace consultant in Dayton, Ohio, helps bring drone manufacturers and potential customers together. The success of military UAVs, he contends, has created “an appetite for more, more, more!” Brown’s PowerPoint presentation is called “On the Threshold of a Dream.”

[div class=attrib]Read the entire article following the jump.[end-div]

[div class=attrib]Image: Unmanned drone used to patrol the U.S.-Canadian border. (U.S. Customs and Border Protection/AP).[end-div]

Idea Soup

Light Breeze Signals the Winds of Change

The gods of Norse legend are surely turning slowly in their graves. A Reykjavik, Iceland, court recently granted a 15-year-old the right to use her given name. Her first name, “Blaer” means “light breeze” in Icelandic, and until the ruling was not permitted to use the name under Iceland’s strict cultural preservation laws. So, before you name your next child Shoniqua or Te’o or Cruise, pause for a few moments to think how lucky you are that you live elsewhere (with apologies to our readers in Iceland).

[div class=attrib]From the Guardian:[end-div]

A 15-year-old Icelandic girl has been granted the right to legally use the name given to her by her mother, despite the opposition of authorities and Iceland’s strict law on names.

Reykjavik District Court ruled Thursday that the name “Blaer” can be used. It means “light breeze.”

The decision overturns an earlier rejection by Icelandic authorities who declared it was not a proper feminine name. Until now, Blaer Bjarkardottir had been identified simply as “Girl” in communications with officials.

“I’m very happy,” she said after the ruling. “I’m glad this is over. Now I expect I’ll have to get new identity papers. Finally I’ll have the name Blaer in my passport.”

Like a handful of other countries, including Germany and Denmark, Iceland has official rules about what a baby can be named. Names are supposed to fit Icelandic grammar and pronunciation rules — choices like Carolina and Christa are not allowed because the letter “c” is not part of Iceland’s alphabet.

Blaer’s mother, Bjork Eidsdottir, had fought for the right for the name to be recognized. The court ruling means that other girls will be also allowed to use the name in Iceland.

In an interview earlier this year, Eidsdottir said she did not know the name “Blaer” was not on the list of accepted female names when she gave it to her daughter. The name was rejected because the panel viewed it as a masculine name that was inappropriate for a girl.

The court found that based on testimony and other evidence, that the name could be used by both males and females and that Blaer had a right to her own name under Iceland’s constitution and Europe’s human rights conventions. It rejected the government’s argument that her request should be denied to protect the Icelandic language.

[div class=attrib]Read the entire article after the jump.[end-div]

[div class=attrib]Image: Odin holds bracelets and leans on his spear while looking towards the völva in Völuspá. Gesturing, the völva holds a spoon and sits beside a steaming kettle. Published in Gjellerup, Karl (1895). Courtesy of Wikipedia.[end-div]