A DISCUSSION OF LAW AND JOURNALISM

Archive for February, 2011

Justice Ginsburg’s Statement Should Trigger Recusal

Supreme Court Justices Pose For "Class Photo"

By Russell Smith

In early February, U.S. Supreme Court Justice Ruth Bader Ginsburg spoke at George Washington University about retirement, her friendship with Justice Antonin Scalia and the health care lawsuit. From all accounts, the event was an entertaining and informative experience. But Justice Ginsburg’s statements about the health care case improperly reflected her opinion of an issue pending before the court. Accordingly, I believe that Justice Ginsburg should recuse herself from voting on whether the Court should hear the case.

When asked whether the Supreme Court would consider reviewing the constitutionality of the health care law before the federal appeals court has had a chance to review, a procedure permissible under Supreme Court Rule 11, Justice Ginsburg implied that the Court would not.

As she put it:  “We don’t decide [that]we better get that health care case sooner rather than later. We wait until the case goes through the ordinary route. That is something that many people don’t understand…. We just react to petitions that are presented to us.”

Justice Ginsburg’s statement is true as a general matter, but under Rule 11 the Supreme Court may decide to review certain critically important cases sooner, rather than later (though it has done so in only a handful of cases during the past seventy-five years). And the same day that Justice Ginsburg made that statement, the health care case potentially became one of those cases when Virginia Attorney General Ken Cuccinelli announced that he was petitioning the Court for expedited review of Virginia’s challenge to the law’s constitutionality. (more…)

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Murder or Assisted Suicide?

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By Alison Parker

Sixty dollars upfront was all it took to convince Kenneth Minor to hold the knife in place while Jeffrey Locker, hands tied behind his back, plunged into it over and over again.

Mr. Minor, 36, who has a history of drug and robbery convictions, says he was approached by family man Mr. Locker, 52, outside a Harlem housing project on July 16, 2009 with an odd request: Mr. Locker asked his help to make his suicide look like a murder, so Mr. Locker’s family would be able to collect the insurance money. Mr. Minor was arrested after he was caught using Mr. Locker’s ATM card, which Mr. Minor was told he could use after Mr. Locker was dead.

As Salon reported, there is ample evidence that Mr. Locker wanted to die. Although Mr. Locker had made a fortune as a motivational speaker, he was deeply in debt. He had given his wife instructions on how to divide and shield their assets “when I am gone” and discussed with his son his idea of making a farewell video. He had searched for funeral information online and had recently taken out a fourteen million dollar life insurance policy on himself for his family. In fact, people have come forward and said he had told them he wanted to be killed. So nobody doubts that Mr. Minor is telling the truth about Mr. Locker’s request.

It’s what happened next that needs to be resolved. And whether what happened amounted to murder.

The trial began on February 17, and while the media touched on some of the law involved it did not analyze the law, or predict Mr. Minor’s chances. We will. (more…)

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Medical Privacy vs. Medical History: Who Wins?

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By Tara Krieger

With few exceptions, private usually means private in the eyes of the law when it comes to medical records. Even if you’re a celebrity who has been dead since before the age of television.

When the New York Times published a report last summer that multiple concussions could mimic the symptoms of ALS (amyotrophic lateral sclerosis), questions arose about whether the degenerative disease actually claimed the life of its most famous victim baseball player Lou Gehrig.

The debate has piqued the curiosity of at least one Minnesota legislator, who has sponsored a bill that would unseal the Yankees slugger’s medical records from the Mayo Clinic, where he was a patient beginning in 1939.

The proposed legislation, which has received bipartisan support in the state House of Representatives, would allow public access to medical records of patients who have been deceased for more than fifty years and whose “will or health care directive” or descendents do not prohibit it. Mr. Gehrig died childless in 1941.

The clinic has come out against Representative Phyllis Kahn’s bill, because it values its patients’ privacy “even after the patient is deceased.” (Mayo may still retain the ability to refuse the release of records, but the bill is unclear, so we cannot say for certain.)  Others are worried that the bill would “create a loophole” allowing people to snoop around celebrities’ private lives.

LASIS wondered: What kind of hurdles would the bill face if enacted? In what ways are the medical records of the deceased normally protected? Are they ever accessible? Is such drastic legislation even necessary? (more…)

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Man Receives Oral Sex; Must Pay Child Support?!

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By Sarah Berent

So, a man sued his ex-girlfriend for fraud and emotional distress after she secured a court order demanding he pay child support for their two year-old daughter. The reason? This woman saved his semen after performing oral sex and secretly impregnated herself. No, this is not a new plotline of absurd television show One Tree Hill but actual events that formed the basis of a 2005 legal battle in Illinois.

Although this case is six years old and garnered some media attention at the time, we recently came across it on Professor Jonathan Turley’s blog and couldn’t resist an opportunity to discuss it. (more…)

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Sony Lawsuit Update

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By LASIS Staff

Earlier this year, LASIS contributor Dawn Mikulastik reported on a lawsuit filed by Sony against New Jersey hacker George Hotz for releasing a jailbreak code that would allow users to “unlock” their PlayStation 3 consoles and run unauthorized software. In its complaint, Sony claimed that Mr. Hotz violated anti-circumvention provisions of the Digital Millennium Copyright Act. Until Judge Illston reaches a decision in the case, she has ordered Mr. Hotz to take down all information about the code from his website, and has given Sony permission to inspect and remove any files containing the code from his hard drive.

Apparently that wasn’t enough to satisfy Sony, which has decided to take matters into its own hands.

On February 16, an official statement was released threatening to terminate access to the PlayStation Network for anyone using a jailbroken console. In the statement, Sony stated that use of these hacked devices violates of the terms of the System Software License Agreement and the Community Code of Conduct, and that use of pirated software violates International Copyright Laws. Sony strongly urged consumers to stop using the jailbreak code and remove it from their PlayStations, along with any unauthorized or pirated software they may have.

It is hard to say what effect, if any, this warning will have on users of hacked devices, because it is unclear how Sony will be able to determine who is and who isn’t using the jailbreak code.  Check back with LASIS to see how this story unfolds…

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