Comments by "MacAdvisor" (@MacAdvisor) on "LegalEagle"
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Objection: The doctrine of minimalism doesn't really apply here. The trier of fact really doesn't have any facts to decide. The question is one of law, not fact. What is the legal criteria to define something as a sentient being. Thus, one can argue the consequences of each side. Look at the argument raised in Roe v. Wade for example. They dealt nearly exclusively in the consequences of abortion and it being illegal. The same is very true of Brown v. Board of Education of Topeka where there was testimony from psychiatrists on the effects of segregation on school children. Also, look at this year's docket, New York State Rifle & Pistol Association v. City of New York, where the law has even been repealed, but the effective the law is being argued.
Moreover, as there as so few facts in dispute here, this issue should have been decided by demurrer. Even if everything Commander Maddox states is true factually, that doesn't show Data isn't sentient. Data is a commissioned officer in Star Fleet. ONLY sentient beings are such, not computers or chairs. Thus, Data is entitled to all of the protections such an officer is entitled to, including not being experimented on without consent and the right to refuse medical procedures.
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Objection 1: I don't believe a law requiring Presidential candidates to reveal their income tax forms would be Constitutional as it adds requirements to those listed in the Constitution at Article II, Section 1, Part 5, "No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States." Nowhere does the Constitution allow to add additional requirements or mention tax returns. I think the only way to require the release would be to amend the Constitution and doing so is not worth the benefit. If people really want the returns, they can punish the candidate by not voting him into office.
Objection 2: I believe Congress won an outright victory in Trump v. Deutsche Bank. There is much precedent about requiring Presidents to comply with subpoenas in civil or criminal cases, but almost nothing (in fact, I would say nothing) about complying with Congressional subpoenas as, until Trump, Congress and the President have always worked things out between themselves and not involved the courts. The Supremes had to make law and did a very good job, putting forth very reasonable standards Congress will meet in the case. Yes, the Congress will likely not the returns before the session ends, but I firmly believe the next session of Congress will again ask for them and the returns will be submitted.
The real objection (question) I would like to ask is why these kinds of cases take so friggin' long? I think US courts are wildly lazy and the Supreme Court here even more so. Nine people, with at least two clerks each, and a couple of secretaries, handle about 100 to 150 cases out of the some 7,000 cases appealed to it each year. Is there a law firm anywhere in the US with nine partners and 18 associates that only handles 150 cases a year that isn't in or headed to bankruptcy? With two people helping me with research and proof reading, I could write one of these opinions a week without breathing hard or staying up late. For example, on August 28, 2019, the Parliament of the United Kingdom was ordered to be prorogued by Queen Elizabeth II upon the advice of the prime minister, Boris Johnson. By September 24th of the same year, the Supreme Court of the United Kingdom, their equivalent to our Supreme Court, rendered a decision against the prorogation. The case was heard in the court of the first instance, appealed, and ruled on by the Supreme Court in less than TWO MONTHS. Trump v. Deutsche Bank took more than a year. In the recent case on employment rights for LGBTQ people, TWO of the plaintiffs died the case took so long. The court managed to override the trial court on a death penalty case in a week ignoring the harm to the appellant (death), but allowed MONTHS if not YEARS to go by in these things. Why? Why does the courts take SOOOOOO long? And don't tell me you lawyers need time to prepare and respond to briefs. I work for lawyers, if you guys don't wait until the last minute to do something, you wait to the last second. Anything longer than a week is wasted. The whole process needs to be sped up.
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OBJECTION!!! I can't believe you just said what you said. "Freedom of speech does not apply to private companies, generally speaking." You are confusing the concept of freedom of speech with the rights provided by the First Amendment. While the two promote a similar philosophical idea, they are not synonymous. Freedom of speech is the concept that people should be able to freely speak their minds without reprisal, while the First Amendment limits itself to prohibiting reprisal by the government. However, I can still post political signs on my lawn, even over the objection of my HOA, because of freedom of speech, not the First Amendment. A specific section of the Davis-Sterling Act here in California protects my ability to do so. The First Amendment does't protect that right, but the protection is part of the general idea of free speech. Moreover, Pruneyard Shopping Center v. Robins, (1980) 447 U.S. 74, supports the protection of free speech even in a private shopping mall. Free speech protects more than the First Amendment does. So, yes, freedom of speech also applies to private companies and society's laws and the Terms of Service agreements determine what is protected when.
Censorship does not have to be done by the government. Censorship is, by definition, "the suppression or prohibition of any parts of books, films, news, etc. that are considered obscene, politically unacceptable, or a threat to security." It doesn't matter if the censorship is done by the state or a private entity. Sometimes censorship is a good thing and sometimes it is not, but, again, where we want to draw the line by both government and private entities is a choice, but the censorship is imposed by other things than governments.
Moreover, in the early days of the Internet, despite what you think, there were very strict rules about all sorts of content. Advertising, for example, was strictly prohibited. The Internet, in its early days, was a government-run, private communication system for use by the government, including the military, government contractors, certain universities, and think tanks. It was mainly email, but other things were transmitted and was designed to provide emergency communication during an attack on the US. Each subscriber had a specific person responsible for the content that the subscriber produced and regulated who could be on it. That is why email is so easy to spoof as the system was designed thinking the administrators would know and regulate everyone they gave an email account to. When private bulletin boards began to migrate to the Internet after it was opened to the general public is when the problems you describe began, but that was long after the Internet began.
Lastly, Trumps tweets, for the most part, come from his private account, not a government account. Thus, there isn't any reason he couldn't be sued now while he is a sitting President for defamation or something else based on his tweets. See: Clinton v. Jones, (1997) 520 U.S. 681.
I don't want to be rude and I think very highly of your work, but I think this video was rushed and demonstrates a lack of time for sufficient research.
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Objection! I rise to remind my learned colleague of the duty to complete a rescue. There are many people to whom one does not owe a duty. Walking by a swimming pool, I spot a person unknown to me drowning in the pool. I don't owe them a duty of rescue. I may walk on by, as the song says. However, if I walk over to the pool and toss the person a rope that they clutch on to, I have a duty to now complete the rescue and reel them in. I can't drop the rope and retreat. The police in Uvalde undertook to rescue and protect, then stopped midway for an hour, forty minutes. Not only did they not rescue or defend, but they prevented others from doing so. I suggest, unlike the police office who took the report and then went to dinner allowing the children to be killed, the officer in that case did not undertake a defense or rescue. I don't think firefighters can drive up to a burning home, hook up their hoses, and then do nothing. An EMT cannot pull up in an ambulance, load up the injured party, and then go to lunch, they must treat and go to an emergency department with all due haste. Once undertaken, the rescue or defense must be completed as a reasonable rescuer would do under same or similar circumstances. At least, if I were the attorney in the Uvalde case, that would be my theory of the case.
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One suggest I have is one and your done when it comes to shooting someone. Unless directly ordered to fire at someone by a superiors officer, any police officer who fires his gun at a person, even if fully justified, is then relieved of duty and terminated. While many good officers would unfairly lose their jobs, I believe this would give police officers a real, concrete incentive to not fire their weapons. I think they would truly and fully explore other courses of action first. If, however, a situation arose where the danger was so great, then they could fire. They would just then be on to another line of work. I also think this would mean officers would not become inured to shooting at human beings. Think of it as term limits for police. Yes, term limits keeps politicians from serving forever, but it also ends the careers of many good politicians. There is not a right to be a police officer. It is a sacred duty, where society entrusts a few with ability to act violently in society. That trust must not be broken.
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I, too, am a huge L&O fan. The knock-offs aren't really L&O. The schtick of L&O is the first half is the police investigating and the second half the prosecutors in court. The first half establishes certainty and the second half brings up all the doubt. I was horrified at this episode. It was awful. A C grade is a kindness, based, I assume, on its 20-year reputation, but the show has sunk below water. The following episodes are just as bad. I must also point out the defense attorney opened the door for the confession by directly asking Det. Cosgrove about how he knew where the gun was. She opened the door to the answer. Even IF the prosecutors had stipulated to not introducing the confession, something I agree is utterly implausible, they can't bind the witness from answering the question honestly and truthfully. The ADA didn't ask about it, the defense did. They can't then complain they got a truthful answer. Why would the defense ever ask that stupid question!?! Me, this L&O is a solid F and the rest barely get above D.
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This was, by far, the best legal analysis of a legal movie I have ever seen. My law school actually did use My Cousin Vinny in our trial advocacy class and it had been my favorite for years because it rang so true. This is a remarkably good video, one of the best things I've ever seen on YouTube. May I humbly ask for a review of Witness for the Prosecution. Witness is a 1957 American film co-adapted from an Agatha Christie story, directed by Billy Wilder, and starring Marlene Dietrich, Charles Laughton, Tyrone Power, and Elsa Lanchester. While it employees somewhat dated English law, it is still a masterpiece. Even if you don't analyze it, I think you will enjoy watching it.
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Objection: incompetent, irrelevant, and immaterial. Prisons, in fact, do tack on time for breaking the rules. It happens hundreds of times each and every day across the country. The revoke awarded "good time" credits. That is, for the most part, why there IS credit for good behavior. It gives the prison a very big stick to keep the prisoners in order. The prosecution as a crime of every prisoner who broke a rule would be very burdensome, if not impossible. Moreover, the revocation of good time is administrative and, thus, has a much evidentiary standard. It is so low, in real life, as to be non-existent. The prison says a prisoner did something, he gets his time revoked with about as little due process as can be imagined. A prison break would not cancel the parole hearing, but it would almost certainly result in a denial. Additionally, parole hearings are not typically a one-time thing. They reoccur at some interval, typically two years. So, the prisoner could be denied this time and then get it next time. Charles Manson was denied parole 11 times. Patricia Krenwinkel, infamous for her role in the 1969 murder of actress Sharon Tate and six others and the oldest prisoner in the US, has been denied parole 15 times. The parole board would not grant parole directly following an egregious rule breaking, at the next hearing, after context has developed, it may well grant parole., BTW, while a decision is rendered in the name of the board, it is really a staff member who holds the hearing at the prison, if one is actually, the decision is made after reviewing the file.
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Objection! The problem is the entire reservation system violates the 5th and 14th Amendments by providing special privileges to certain American citizens based on their ancestry. Tribal "nations" are not in any way, shape, or form sovereign. They are entirely and utterly creatures of Congress that can be eliminated by the passage of a simple bill. They are like the FBI or the Post Office, something created by Congress that can be eliminate by Congress. The tribes are not like France or California. Congress can pass all the bills it wants, both France and California continue to exist. Congress cannot revoke California's sovereignty, nor can Congress split California into smaller states. As the tribes are completely Federal creatures, neither the President, nor Congress, can make treaties with them any more than they could with the Federal Deposit Insurance Corporation (FDIC). The legal maximum is one cannot contract with oneself. Moreover, as these tribes are not actually nations, whatever they are called, they cannot have citizens and cannot have rights from their nation. Congress can certainly create clubs called tribal nations, but they cannot make the members of the club not subject to Oklahoma state law. A postal worker who hits his spouse is guilty and punishable for spousal abuse under state law despite his employer even if Congress were to pass a law saying letter carriers cannot be guilty of spousal abuse. The Federal government could retain the land as Federal property and even retain jurisdiction over the land just as the do Yellowstone National Park. However, all US citizens on Yellowstone property are equal and subject to the same Federal law, not a special subset based on their ancestry.
Thus, once the tribes stopped being actual sovereign nations and became creatures of Congress, the treaties ended. Another example would be Palestine. Palestine has ceased to exist as a functioning government and country. It has been conquered by Israel. Any treaty with Palestine is now null and void. Moreover, Palestinians cannot claim they are not subject to Israeli law, but only Palestinian law. I am sorry. The tribes and their members were treated horribly. They were cheated, robbed, killed, and basically had everything taken. No one today, however, walked the Trail of Tears and Death.
The Supreme Court should declare the entire tribal system unconstitutional and make any tribal members subject to the same laws as any other state citizen.
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Let's start with the actual text of the applicable part of the Fifth Amendment, "nor shall private property be taken for public use, without just compensation." The text does not limit the taking to just eminent domain, which is one way to "take" a property, nor does the text suggest the government must take title. The test the Amendment clearly states is if the property is taken. Nothing about that taking requires it be permanent, change the nature of the property, even for how long. The police clearly took the property when they denied the family entrance. The police controlled who entered and what was done with the property for some 19 hours. By any reasonable understanding of taking, that qualifies. Moreover, the idea that police power is an exception has been under consistent attack (see: Wegner v.Milwaukee Mutual, City of Minneapolis 479 N.W.2d 38 (Minn. 1991) and Steele v. City of Houston 603 S.W.2d 786 (1980)). Moreover, the Third Amendment to the Constitution places restrictions on the quartering of soldiers in private homes without the owner's consent, forbidding the practice in peacetime. The Founding Fathers demonstrated a clear preference against the government using others property without consent and compensation.
By exempting police power, the police do not have any reason to take into account the effect their actions may have, nor to balance their goal with other factors that have weight. For example, in this situation, there simply doesn't exist any reason the police needed to break windows, explode doors, or take any action other than surround the house and wait for Mr. Seacat to exit. Waiting might have taken a few days or weeks, but any damage would be on Mr. Seacat. There wasn't an urgent reason to append him immediately, only a reason to prevent his escape.
Lastly, the due process clause is violated by the police department placing the burden of its actions solely on the family. The family didn't do anything, yet are being made to bear the burden of the entire affair that was for the good of the whole community. Because the benefit is for the community as a whole, the community as a whole should bear the cost.
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Objection! Giant, huge, Tom Cruise or Al Pacino style objection! This case has been misused by law professors since it was written and the court was clearly bribed by the railroad to come up with some yahoo theory to clear it. The problem in this case is not about the person getting on the train, but the fact the scale fell on Mrs. Palsgraf. This is classic Res Ipsa Loquitur: The scale shouldn't be able to fall over on a person on the platform. This isn't an issue of zone of danger, and where Judge Cardozo goes off the road, it is the classic breach of a duty that causes harm. The railroad had a duty to prevent the scales from being able to topple over, they breached that duty because the scale did topple over, it caused harm to Mrs. Palsgraf.
This case is only used to teach about the zone of danger because it is the case where Judge Cardozo made up the facts to fit his pet theory to find a way to find for the powerful and rich railroad. The guy, the fireworks, the push, all of that doesn't matter. The question is why does the railroad have a big, heave scale on the platform where it could topple over onto someone.
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OBJECTION!!! Dean Chemerinsky is the dean of UC Berkeley School of Law, not Irvine. While he was the founding dean of UC Irvine School of Law, he left for Berkeley. As January 1, 2018, L. Song Richardson became the dean of Irvine, having assumed the role of interim dean on July 1, 2017. At the time of her appointment, she was the only woman of color to lead a top-30 law school. On July 1, 2021, she became the 14th president of Colorado College. Currently, Bryant Garth is the Interim Dean; Irvine doesn't have a dean at this time.
One a side note, when I was in law school, I discovered a math error in the 4th edition of his con law textbook. I called his office and asked to speak with him. Much to my amazement, I was connected to him and told him what I found. He was very pleasant and had copy of his book handy (which greatly impressed me, if I ever write a legal text book that gets as widely used, I would carry it with me everywhere, even to the bathroom). He looked at the page in question. After some use of the calculator, he agreed with me and told me he'd correct it in the next version. Sure enough, the 5th edition, the current version, has been corrected. So far, I believe this is my biggest contribution to Constitutional Law.
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Objection. Evidence must be relevant and, as Picard objects, Data strength is not relevant to his capacity as a sentient creature. As Picard states, there are many sentient creatures with vast strength. Unless the evidence is relevant to Data's sentience, it should be excluded.
Minor quibble, given the proceedings are recorded three-dimensionally and available for playback in the holo suite, as demonstrated in other episodes, the judges head nod may well be record and sufficient by this point in time. Also, one could as the court to take judicial notice of the facts of the tensile strength of the steel just as it could the time of day or any other well-known fact. Same is true, btw, when Vinny states grits takes 20 minutes to cook. He wouldn't need an expert, but could rely on the general known fact to all in the courtroom.
If you really want to review a Star Trek proceeding, my I suggest the episode "Court Martial" from the original series. Simply dreadful, particularly when he law professes how much he prefers books. Legal reference books are cumbersome and not at all convenient.
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Objection: Two, actually. First, the vote is not two-thirds of the Senate, but two-thirds of the Senators present. Two-thirds of the Senate would mean the vote is now at 67, regardless of the number of Senators in the chamber, while, in fact, if there are only 80 of the 100 Senators present, the officer can be removed with the vote of only 54 votes. Second, removal from office is NOT the only penalty that can be imposed. The Senate may also vote to bar the person from ever holding Federal office again. Currently, Rep. Alcee Hastings, D-Fla, is a member of Congress holding Federal office, but he was impeached as a Federal judge some years ago. However, while the Senate removed him as a judge, it did not impose the additional restriction of baring him from Federal office. Hence, he was able to run for and serve in Congress.
In the law, details matter.
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Just today, I renewed my membership with the ACLU. It was only $35, all I could afford, but they are one of the organizations standing between us and dictatorship.
I would now like to ask a very incendiary question: could someone defend themselves against a charge of murder by using the necessity defense if they were to kill President Trump. I truly believe Trump represents a clear and present danger to the our Republic. Every day he is in office, our living Constitution dies a little. I do NOT advocate killing him, nor would I myself take such an action, but how many times can he order innocent people beaten, gassed, flash-bombed only so he can commit blasphemy? Many people talk about a Second Amendment solution, if someone were to actually do that, do they have a defense?
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Objection!!!! The idea arbitration is a neutral party that will treat each side fairly is absolutely false and why arbitration should not be permitted. First, companies keep track of arbitrators and know which ones find for them and which ones don't. Even one single ruling in favor of the consumer is enough to get an arbitrator blackballed. Because arbitrators are paid for by the companies and only are paid when they work, this practice of banning pro-consumer arbitrators means they are quickly out of a job. Thus, arbitrators have a financial stake in the outcome. Second, the opinions are not published, so an arbitrator can find for the company using one reason, and then use the opposite opinion to support the company in the next. There isn't a consistent application of law. Arbitration is, therefore, arbitrary and capricious. Lastly, there really isn't an effective method of challenging the decision on the merits. Thus, unreasonable rulings go unchallenged. Arbitration is a clear violation of the Seventh Amendment depriving the parties of a jury trial.
Sorry, arbitration is anti-consumer. The best proof of that is that companies seek to impose it.
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@ArlanKels I want to be very clear: I don't know Mr. Stone, have never met or communicated with him in anyway and don't, to my knowledge, know anyone who has, BUT the guy owns his own firm. Before that, he was a senior associate in litigation for a large firm in LA. He has been out for 12 years and has been, by any reasonable measure, wildly successful. PACER and Lexis show him associated with a stelar client list. Given all that, he has likely paid off his school debt some time ago and is socking away some real money. I can't find out if he is married, but he would be an incredible catch. Seriously, he is very good looking, has good taste, and sense of humor, and a cute doge. What more could anyone want?
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Objection!! Of course one can yell "fire" in a crowded movie theater. The case where that is from is Schenck v. United States, 249 U.S. 47 (1919), where Justice Oliver Wendell Holmes, Jr., wrote, "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic (emphasis added)." The key here is "falsely" yelling, not just the yelling. However, Scheneck was overturned in Brandenburg v. Ohio, 395 U.S. 444 (1969), replacing the "clear and present danger" standard of Scheneck with the "imminent lawless action" standard.
I also must say, the "beyond a reasonable doubt" is of dubious use if different juries can come to different conclusions. It is supposed to an objective, not subjective standard. As an example, I point to the Scott Peterson case where there isn't even an official cause of death for Lacy Peterson, let alone a finding she died from a homicide, but, nevertheless, Scott was convicted beyond a reasonable doubt of Lacy's murder. I just don't see how there isn't clear reasonable doubt.
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Objection! While the Senate Rules may have the Chief Justice of the United States preside, the rule would not overrule the Constitutional provision the Vice President is the Senate's presiding officer (See: Article 1, Section 3, Part 4, "The Vice President of the United States shall be President of the Senate.") However, Article 1, Section 3, Part 6 states, "When the President of the United States is tried, the Chief Justice shall preside." Thus, the Senate Rule just restates what the Constitution provides, it does not make the rule itself.
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