Monthly Archives: November 2007

Senator Biden Ought to Read the Constitution

My brother's column today, Is Bush Ready to Talk Pullout?, contains the following pointer:

Adam Leech writes in the Portsmouth (Maine) Herald: “Presidential hopeful Delaware Sen. Joe Biden stated unequivocally that he will move to impeach President Bush if he bombs Iran without Congressional approval.

“Biden spoke in front of a crowd of approximately 100 at a Seacoast Media Group forum Thursday, which focused on the Iraq War and foreign policy. When an audience member expressed fear of another war with Iran, he said he does not typically engage in threats, but had no qualms about issuing a direct warning to the oval office.

“'The President has no authority to unilaterally attack Iran and if he does, as foreign relations committee chairman, I will move to impeach,' said Biden, which was followed by a raucous applause.

“Biden said he is in the process of meeting with constitutional law experts to prepare a legal memorandum saying as much, and intends to send it to the President.”

Small problem. The Senate doesn't initiate impeachments. Those have to come from the House of Representatives; the Senate's role is then to judge the merits of the impeachment.

Art. I, Sec. 2, Clause 5: The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

Art. I, Sec. 3, Clause 6: The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Doesn't Biden — a long-serving Senator, and veteran of impeachment trials — know that by now? Was he misquoted, or is he stupid, or does he think we are?

Posted in Law: Constitutional Law | 17 Comments

Got Work to Do

Posted in Linkorama | Leave a comment

Truly Bad Movie Meme

An anonymous purveyor of electronic chain letters, whom I'm guessing is Ann Bartow, has tagged me with the 'Truly bad movie meme'.

The rules of the game are to “name the worst film I've ever paid money to see”. To show I'm a good sport, I'll play along. Part way. But I don't think I'll 'tag' anyone as that might seem intrusive. Yes, I will break the chain.

As it happens, I am not a movie guy. I resist going, a source of some marital disharmony until the invention of the PC DVD player. So my universe of contenders is small, as I only go out to films if I think the probability of liking them is absurdly high. And I hardly ever watch them on DVD either…

But even in this small universe, it's absolutely no contest. A whole bunch of us in college went to a law school film society showing of a film of considerable legal importance but, it turned out, no redeeming social value whatsoever. Had I not been wedged solidly in the middle of a very long row in a large law school lecture hall I would have walked out after about 15 minutes, but as it was I stayed for the entire ugly and — worse! — boring, boring thing and kept thinking that surely at some point they'd introduce a semblance of plot. Yes, I'm talking about Deep Throat. Horrible. And very hard to see the 'redeeming social value' in it either, which may be one reason why I've never been able to work up enthusiasm for teaching the pornography line of First Amendment cases, even though I still believe that censorship is ultimately more dangerous than cultural drek.

Does this mean Ann will now disown me?

Runner up: the DePalma remake/ripoff of Phantom of the Opera, Phantom of the Paradise. Can't think what possessed me to go to that. Actually, it was the reviews. What did they know.

Posted in Kultcha | 9 Comments

Blastocytes and Legal Logic

The author at SquareState.net:: Anchor Blastocysts has got a good legal argument that I hadn't heard before regarding the movement to classify a fetus as a legal person from the moment of conception. The purpose of the rule is of course to make abortion legally murder. But there will be unanticipated consequences.

If the “Blastocysts are people too!” ballot measure passes in Colorado, the moment any undocumented worker gets pregnant, not only is that Blastocyst a person—it's also an American Citizen!

Aside from the not-so-small point that citizenship is a federal issue and it is not clear from first principles whether the federal rule should or would follow the state rule, there's obviously something powerful about this logic especially if the Colorado model were ever to be adopted on a national basis.

In that case, if a noncitizen female conceives a child in the US, presumably it would be wrong to deport the blastocyte or fetus. And that means we can't deport the mother either. At least until the kid is born after which we are, as news reports from all over show, perfectly willing to deport mothers of small citizens if the mothers lack proper documentation.

I should add that, while powerful, this logic is not inevitable. Anglo-American law has in the past been able to make various distinctions about the unborn. Although not persons for most purposes, the inheritance laws, for example, extended to children “en ventre sa mère” (the absence of the “de” is not a typo; this is Law French, not the real thing). So it remains possible that the same people who deport nursing parents, leaving the citizens to fend for themselves, would have little trouble finding a theory to deport the unborn citizens as well. Pointing to the problems of proving domestic conception (the mind boggles) is only a first step….

Posted in Law: Constitutional Law | 10 Comments

Two Million Views of Discourse.net

Some time in the last couple of days, while I was distracted, this blog had its two millionth page view according to the deeply flawed Sitemeter metric. The far, far stricter unique counter, which won't count you more than once a day, hasn't even hit a million yet. Then again, in this day of RSS newsreaders, I suspect that about half my readers never hit the blog at all but just take the full-text feed.

This blog is a strange enterprise: it's neither narrowly focused on one subject, as are many of the best law blogs, nor is it run by a collection of interesting people as are many of the others. I suppose it's a bit quirky. Perhaps that reflects something about the author.

I remain humbled by the wonderful people who seem to think my hobby is worth their time and especially those who write to me or post comments. Over time, some readers have been kind enough to describe themselves, and you, kind reader, are invited to join in (names optional) if you are so minded.

Posted in Discourse.net | 5 Comments

This is Not My Beautiful House (Anymore)

David Byrne, yes that David Byrne, one of my favorite contemporary musicians, explains the mortgage credit crisis and how the housing bubble might explain why working people voted against their interests in 2004 and helped elect GW Bush,

Meanwhile the recipients — the workingmen and women who are barely eking by — suddenly have loan offers thrown at them by the truckload. They feel richer, more flush; things are going well it seems, and their situations improving. It’s not so hard to pay the bills. They worry less and sleep more. A sense of blissfully ignorant well-being pervades the land. The working class and the under- and unemployed assume that the Republicans are somewhat responsible for this new (virtual) wealth — and maybe they were. It would follow that Mr. Joe Average might vote for the administration seemingly responsible for his new sense of well-being. Now, the bills are coming due — the housing market stalled, as I understand it, triggering the collapse of the whole house of cards.

Although Byrne's analysis of the sources of the bubble isn't half bad, the really good stuff is at Calculated Risk if you have a taste for true insider mortgage industry wonkishness in all its glory. But having seen Bryne's blog entry, I couldn't, just couldn't, resist the chance to use that headline.

Posted in Econ & Money | 3 Comments

Can Typosquatting Be Counterfeiting?

This seems to be media day. Brian Krebs quoted me in the Washingtonpost.com story Dell Takes Cybersquatters to Court.

The story there is about Dell bringing a very large and organized case against a bunch of domain tasters (people who register domain names for a very brief period then drop them, so they don't have to pay for them) who were apparently typosquatting on a grand scale.

What makes the story interesting is that Dell's lawyers threw in a counterfeiting claim into their complaint. It's artfully worded, but the essence of it is that the counterfeits are the domain names, and/or the act of putting up web sites at the domain names that have popups or pop-under ads.

Tactically, this assertion has great value for Dell: it got the judge to treat the complaint the way that courts treat claims that there's a warehouse of phony handbags somewhere; Dell got to file under seal, and to stage a raid before service to impound computers and other evidence. And the statutory damages for counterfeiting are higher than for cybersquatting.

But, and here's the rub, it seems pretty clear to me that the trademark laws don't contemplate this sort of cybersquatting/typosquatting, however heinous and massive, as being called counterfeiting. This isn't like affixing a false mark to some good to make consumers buy it. And even if one were to say that consumers “buy” web sites by “paying” their attention, I don't understand anyone to suggest that the defendants' sites looked like Dell's, just (some of) the domain names. Indeed some of the names, although they had “dell” in them, were so long and weird that you have to wonder how anyone could be confused, or how they could even be seen as diluting Dell's marks. Even so, though, if the complaint's facts are true, there were an awful lot of other names that were close enough to Dell's be actionable.

Overall, it's a very well-written complaint and makes the defendants sound very guilty of trademark infringement, cybersquatting, and various Florida state-law unfair competition claims and the like — but not of counterfeiting. The attempt to re-characterize typosquatting, even massive typosquatting, as counterfeiting seems to me to be an unusually far-fetched construction of the relevant law, but I'm open to correction from people who know counterfeiting law better than I do.

Posted in Internet, Law: Trademark Law | 1 Comment