The Justice Department has lost a major case where it sought to bar efforts to determine if a convicted rapist is in fact innocent. The Obama Administration argued in United States v. Watson that Bill Watson should not be able to use a new DNA test that was not available when he was convicted of a rape in 2006. Despite dozens of cases where convicted individuals were proven innocent, the Obama Administration fought to prevent the use of this test even though the Innocence Project offered to shoulder all of the costs. The position of the Justice Department was inimical to the values of due process and the rule of law, in my view. The United States Court of Appeal for the Ninth Circuit rejected the highly technical claims that neither Watson nor the court should knew the true identity of source of key evidence found at the crime scene.
The Redskins lost a major challenge this week to the cancellation of the their trademark protection by the Patent and Trademark Office. I have previously written about my disagreement with the U.S. Patent and Trademark Office decision to rescind federal trademark protections for the Redskins as a racially disparaging name as well as the underlying law used to strip the team of its trademark protection. The law allows for a small administrative office to effectively dictate the outcome of a long simmering societal debate over the team name. More importantly, the standard for determining what names or words are disparaging remains dangerously undefined with striking contradictions as we have previously discussed in permitted and disallowed trademarks.
Below is my column today in the Washington Post on the ruling in Obergefell on the basis for the Court’s ruling in favor of same-sex marriage. Due to limitations on space, I could not go into great depth in the opinion which primarily dealt with the notion of the “right to dignity.” The Court did not pursue an equal protection analysis beyond the following highly generalized statement:
The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws. The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always coextensive, yet in some instances each may be instructive as to the meaning and reach of the other. In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way,even as the two Clauses may converge in the identification and definition of the right.
Since the Court did not substantially address whether homosexuals are a protected class or the other Equal Protection line of cases, the opinion appears to craft a right around the inherent right of self-expression and dignity in intimate affairs. That is very appealing to many in the expansion of due process concepts, but the column explores what it portends for future rights.
Here is the Sunday column:
As widely rumored, Pope Francis has issued a historic papal encyclical that agrees with the vast majority of scientists that global warming is real, largely caused by mankind, and threatens the very future of humanity. He has called for emergency action to curtail carbon emissions by reducing fossil fuels and developing renewables.
Below is my column today in USA Today on the decision of the Supreme Court to reject the Obama Administation’s argument for a low standard in criminalizing speech on the Internet and other forums. The Court did not have to directly deal with the free speech implications of the case since it ruled on the standard for criminalization. The Court rejected the lowest standard of a reasonable person in establishing a criminal threat. However, with the remand, the issue may come back to the Court under another effort to adopt an alternative standard of recklessness.
Respectfully submitted by Lawrence E. Rafferty (rafflaw)-Weekend Contibutor
It has happened again. Several big banks have been caught with their hands in the cookie jar and are paying billions in fines for their admitted transgressions.
“On Wednesday, four large global banks — Citigroup, JPMorgan Chase, Barclays and Royal Bank of Scotland — pleaded guilty to a series of federal crimes over a scheme to manipulate the value of the world’s currencies. The Justice Department accused the banks of collusion in one of the largest and yet least regulated markets, noting that at one bank one trader remarked “the less competition the better.”
That lack of oversight, coupled with the pressure to squeeze profits from a relatively middling business, set the stage for this scandal, one that unfolded nearly every day for five years. The crimes described on Wednesday also painted the portrait of something more systemic: a Wall Street culture that enabled many big banks to break the law even after years of regulatory black marks after the crisis.” New York Times Continue reading
The details on the indictment of former U.S. House Speaker Dennis Hastert, 73, have remained hazy with some notable gaps in the underlying criminal enterprise alleged in the complaint. The theory is that Hastert was paying millions to a blackmailer and tried to hide the payment through “structuring” of withdrawing less than $10,000 to avoid reporting to the federal government. What is interesting however is that the underlying alleged blackmailer has not been charged. There is also the question of the subject of the earlier “misconduct” and whether it could be charged. Some offenses like child molestation can be charged many years after the fact. Hastert was indicted on two counts for charged with lying to the F.B.I. and the structuring of withdrawals, both carrying a maximum penalty of five years in prison and a $250,000 fine.