Comments by "MacAdvisor" (@MacAdvisor) on "LegalEagle"
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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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