25 June 2008

Jockey Shorts

The "sexier" version of legal briefs. Believe me, you don't want to see middle-aged lawyers wearing thongs...

The Supreme Court appears to plan on ending its term tomorrow (Thursday), issuing opinions in both Heller (the DC gun-control case) and the latest iteration of the election finance cases (which would be much easier if it would just overrule Buckley v. Valeo and start over). Today's opinions are more interesting for their implications than they are for their substance... and even the technical ones matter.

  • Exxon, the punitive damages case resulting from the massive oil spill in Prince William Sound, has several technical aspects with interesting implications. The most important is that it does not decide the most-important issue: Whether respondeat superior — the responsibility of a master (the corporation) for the reckless acts of its servant (the captain of the Exxon Valdez) — applies in maritime law. Interestingly, though, the rest of the opinion emphasizes that the context of a matter is as important as any proscriptive Constitutional vision: The remainder of the opinion is careful to limit itself to maritime law, which is largely international law. And here's the implication: So is the law of armed conflict.
  • Kennedy, the death-penalty-for-child-rape case, also has some interesting implications. First, the Court specifically states that the death penalty is not appropriate absent both the actual death of an identifiable victim and an appropriate finding of intent to cause that death. This has some interesting implications for the law of conflict in general and GITMO in particular, because there are two classes of offenses that have authorized death penalties that do not meet that standard: Treason and espionage/terrorism. I doubt that anyone was thinking about that while writing Kennedy, though; thinking of necessary implications seems incredibly disfavored by the Roberts Court.
  • Giles seems, at first blush, like a technical case relating only to rules of evidence. However, it is much more than that. One of the problems with the rules of evidence is that many of the exceptions and doctrines built into the rules are ultimately circular. Giles rejects one variety of that circularity. A California evidence rule allowed the prosecution to enter testimonial statements by the victim against a defendant without offering the defendant his constitutional right to confront his accuser(s) through cross-examination. The evidence rule was basically that if the defendant had caused the unavailability of the victim, he couldn't benefit by having the evidence excluded... which makes some sense, except when the subject of the trial in question is the not-yet-proven accusation that the defendant killed the victim. That's circular logic of the worst kind, and the Court rightly rejected the California rule of evidence.
  • Finally today, there's a mindnumbingly technical opinion on jurisdiction in Plains Commerce Bank. This opinion seems to have nothing to do with much of anything, at least at first blush, because it relates to the jurisdiction of tribal courts. Ah, but it does: GITMO and the International Court of Justice include some of the same issues. I'm still thinking this one through... but, if it really means what I think it might, then I'll have more to say down the road.

Finally for the moment, you really should check out Professor Patry's blawg for yesterday, which includes two different entries on the MPAA's latest chutzpah. I am anti-piracy, but there is a limit: Combatting IP piracy necessarily includes following the law as it exists, not as one wishes it was. I'm a procedure geek, so invoking The Charming Betsy always sounds like fun to me. More disturbing, though, is the attempt to cite Nimmer's treatise — out of context, I might add — as somehow "binding" on someone over the age of three. Leaving aside my general hostility to the Nimmer treatise (which is especially relevant here, given the past attorney-client relationships and the procedural posture of this matter), I would note that this is neither the summer of love nor Blackstone.

The MPAA, its counsel, and its defenders should seriously consider the metatextual implications of that last sentence and its linked media. Sadly, that's more unreasonable than expecting nicotine addicts to read (and heed) the warning labels on cigarette packages... or pollsters to comprehend what the "secret" in "secret ballot" means. And the irony that, in this day of media consolidation and ownership of publishers by film interests, the MPAA's position makes it much more difficult for other creators of copyrighted material to assert and protect their interests just makes it that much more interesting (in the Chinese sense of "interesting").