Archive for the ‘Moral High Ground’ Category

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WHAT HAPPENED: Tam is a member of THE SLANTS, an Asian-American rock band who sound like your friend’s band who you always get invited to see live but never want to see live because they are not very good.  Tam sought to trademark the band’s name, but was denied by the U.S. Patent and Trade Office (“the PTO”) for being an antiquated racial slur.

WHY IS THIS BEFORE THE SUPREME COURT:  The PTO has a policy in place that denies trademark protection for offensive words, which is the basis under which the PTO denied Tam’s request.  The issue in this case is not whether the term THE SLANTS is offensive, but more broadly whether or not the PTO can constitutionally ban trademark terms based on their subjective standard for obscenity.  The lower court ruled in favor of THE SLANTS and held that the PTO’s policy is void as a matter of law.

WHAT ARE THE RAMIFICATIONS – It may seem obnoxious to point out that this only benefits rock bands with offensive names, but it is worth noting that there are more offensive band names than you may realize.  I have a friend who works for a very popular death metal record label, and his email signature would promote bands like DYING FETUS and album names like SULFUR AND SEMEN, so if you’re a hairy, stocky white dude who claims to worship Satan, this case could be for your benefit.  More generally, this case speaks to what the First Amendment actually gives you from the government.  On one hand, this is a government agency who is censoring private speech,; but more specifically, the government is not imprisoning THE SLANTS, but just not granting them additional commercial protection, which is an important distinction.  Most likely, that will be what this case turns on.

ROOT FOR LEE IF:  you don’t need to curse in your albums to sell records.

ROOT FOR TAM IF: you do, so f*** Will Smith, and f*** you too.

PREDICTION:  Tam 5-3

 

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WHAT HAPPENED: Appellant is an indigent defendant who was convicted of first degree murder.  Appellant sought medical expert to assist with his sentencing and was provided with an expert by the State.  Following some kind of calamity involving timing and delivering the report, Appellant was sentenced to death (by electrocution because this was in 1984).

WHY IS THIS BEFORE THE SUPREME COURT:  In the 1970s, the Supreme Court (by way of Thurgood Marshall) held that indigent defendants were entitled to medical experts to assist with the insanity defense.  The Court held that the cost to the State was nominal compared to the benefit it would provide in ensuring that justice was served.  This case takes that holding one step further, and asks that not only does the State have to provide a medical expert, but also has to provide someone who is completely independent from the State as to reduce bias.

WHAT ARE THE RAMIFICATIONS – This is either (1) a dollars and cents issue, or (2) another way that the Court could create more ways that people on death row can overturn their sentences.  One on hand, hiring an independent expert would cost more, but once again you would have to wonder how much it would really be in light of the purpose behind providing the expert.  If you also believe that experts are mostly just mercenaries who say whatever they are paid to say, the benefit here is pretty high.  On the other hand, a ruling in favor of the Defendant is a pretty far stretch from the original Court’s holding, and finding that an independent expert has been required since 1984 would open the door for past death row inmates to contest their sentences, which would in turn bring more old death row cases before the Court, which would in turn make Clarence Thomas freak out.

ROOT FOR MCWILLIAMS IF: you want to see Clarence Thomas freak out.

ROOT FOR DUNN IF: you think poor Clarence Thomas has been through enough.

PREDICTION:  Dunn 6-2

Step Zero

Posted: November 30, 2016 by Nazim in Election, Moral High Ground, Politics

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The “recent unpleasantness” was the way some politician referred to the Civil War, I believe, and I’ll steal the euphemism to say that the recent unpleasantness has caused a great stir among the people I know, and in mostly negative ways, as I mentioned in the recent episode. Personally, my reaction has been to re-evaluate: I was wrong about some things before the election. I might be wrong about others. Some have taken this to mean that they should be passive, or acquiescent, or something else they somehow both didn’t want to hear and at the same time heard. I can’t speak intelligently about humans – I include myself in that group – but lucky for me, others can.

I was trying to work this article on cognitive bias into some kind of election preparation piece that never came together, but find useful now. The short of it, because, if I’m frequently too lazy to click through, you might be as well, is this quote:

 

  • We don’t see everything. Some of the information we filter out is actually useful and important.
  • Our search for meaning can conjure illusions. We sometimes imagine details that were filled in by our assumptions, and construct meaning and stories that aren’t really there.
  • Quick decisions can be seriously flawed. Some of the quick reactions and decisions we jump to are unfair, self-serving, and counter-productive.
  • Our memory reinforces errors. Some of the stuff we remember for later just makes all of the above systems more biased, and more damaging to our thought processes.

 

The Questions Attorneys Ask

Posted: August 12, 2016 by Nazim in Lawyers, Moral High Ground

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Attorneys ask obnoxious, stupid, often insulting questions. It’s not their fault, or at least we don’t think it’s our fault, but this hand-waving justification is the kind of thing that shouldn’t really fly: it’s our job. That justification never stopped me from hanging up a telemarketer, and should not have induced nazis to do theirs. A lot has been written about this by the fabulous Hannah Arendt, someone I’m proud to call a co-citizen. But this isn’t about that. Let me rewind the tape.

It was already a long day of arbitration yesterday when an experienced attorney put his foot in his mouth. It wasn’t a big misstep, and definitely something any attorney could have done. But that’s the point that struck me. He barely lost any amount of that vague score judges and arbitrators keep in their head, olympic-judge style, a triviality in the greater scheme of the case. However, the laypeople in the room certainly didn’t think so. To an outsider, on the other hand, the blunder looked bad: caustic, even offensive. The offending statement was about how one of the parties should have been minding the matters of the case instead of travelling. The travel, however, was to go see the party’s father on his deathbed.

In the middle of litigation, attorneys get so bogged down by the finer details that it’s hard to let go of any of them, and even this blunder triggered some swift retaliation from opposing counsel. I’m sure the laypeople in the room felt a twinge of gratitude or respect for the punishing attorney, but none of the industry folks in the room gave it a second though. Even during deliberation, the issue wasn’t mentioned. We did snicker about another misstep, a much less offensive and blatant one, albeit one that probably tipped the scales in a slightly more tangible way in that case. That moment that might have made news in a small town, slow news day, but it was just par for the course in the industry.

I haven’t come up with a takeaway, here. Maybe, if you’re a layperson, it’s this: if you get involved in a lawsuit, expect some pretty prying and obnoxious questions. But for me, it’s just another of those weird, bewildering things one does for a living. Sincere apologies.

I was reminded of these thoughts by this inspiring link from Lowering the Bar involving SHARKS!

Podcast Listener Predicts Future

Posted: August 3, 2016 by Nazim in Justices, Moral High Ground

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A short while ago, Lane of Philadelphia asked if there were situations in which the Supreme Court would not be able hear a case due to conflict of interest. Well, it just happened in Nevada. So, Lane, what’s next? Lottery tickets? Sports betting? Being Biff?

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The goals of public discourse don’t include yelling and insults, but frequently appear to. Here’s an interesting attempt to steer away from that.

Some Pun on Yarn-Bombing Here

Posted: July 16, 2016 by Nazim in Moral High Ground

The internets tell me that a lady Scot may be able to knit her way out of sentencing for some road rage. The mildly longer version of the story involves one Scot lady cutting off another lady Scot and delivering her thoughts on the first Scot lady’s driving. The latter then followed the prior to a parking lot, where ladylike fisticuffs ensued. Details in the link below.

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NOT the dames in question. These are Lizzy Valentine throwing Malia Hosaka, but a fair re-enactment in our minds.

via LoweringTheBar

CityLab, urban policy megaphone of the eminently respectable Atlantic, recently put out this article, helpfully titled The Legal Policy That Makes Collisions Especially Harrowing for CyclistsBikers share an unenviable category with vegetarians: they’re engaging in morally superior behavior, and being punished for it. In this particular case, by a draconian version of the Contributory Negligence doctrine, which bars any recovery if the plaintiff has even a tiny degree of fault in the accident (talk about blaming the victim!). In most jurisdictions, this doctrine has been replaced by or morphed into the Comparative Negligence doctrine, which simply lowers the damage award by the percentage that the plaintiff was at fault, and reducing the award to zero if the plaintiff is 50% or more at fault in the accident.

This becomes interesting because negligence is a very comprehensive legal framework: what was the discernible risk, what are the possible consequences, and how much effort did you put into avoiding them? Sometimes, as Casey Neistat demonstrates below, this clashes with traffic regulations, and bikers must make tough legal choices.

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”

WHAT HAPPENED:  The U.S. Patent and Trademark Office has a rule that prohibits trademarking any name that “disparages” any living or dead individual, belief or national symbol.  Two such entities that have had their trademarks rescinded by Federal Circuit Courts include THE SLANTS (the rock band shown above) and the WASHINGTON REDSKINS (image not shown as it is too offensive).

WHY IS THIS BEFORE ANY COURT:  The argument goes that the PTO’s denial of trademark protection violates the First Amendment.  For the Slants, their use of the term represents reclaiming offensive terminology.  For the Redskins, their use of the term represents sticking with racist words because it costs too much to change it.

WHAT WAS THE RULING:  The Slants won, and the Redskins lost.  The Redskins have now petitioned the Supreme Court to get priority review of their claim since they lost at the lower level.

WHAT ARE THE RAMIFICATIONS:  At the heart of it, the concern in this case is whether you can get priority use of an offensive term.  If that applies to you, you probably stink.

WILL THIS GO BEFORE THE SUPREME COURT:  More likely than not this will have some life at the Supreme Court next term.  There is a split in jurisdictions in regard to whether this rule is Constitutional or not, so that needs some clarity.  One interesting issue would be whether or not the Court makes a factual distinction between these two cases, or makes a rule that applies to all similar situations across the board.