Unavoidably Detained Link Sausages

Even cynical sausage-makers/collectors sometimes have other things to do...

• Ownership of art stolen during wartime — whether via "expropriation" by governments or retail theft by soldiers — is an emotional issue with immense implications for copyright law, cultural validity... and civil procedure (PDF). My bottom line is simple: This particular manner of corrupting the chain of title is seldom, if ever, completely hidden from the so-called "bona fide purchaser for value" — art collectors and museums either do considerable prepurchase/postpurchase investigation or refuse to do so because they're afraid of what they'll find — and even so, replevin (return of the actual physical item) is still the appropriate remedy for stolen unique property against a bfpv. And where the piece was literally taken as unlawful loot by soldiers, there's even less excuse. However, foreign courts simply will not accept that (exhaustion requirements are excusable when exhaustion would be futile); and, therefore, I think Judge Gould (and Chief Judge Kozinski) are wrong in their dissent pragmatically, on a policy basis, and on the text (and contextual meaning) of the statute.
• A story in WaPo on selecting pseudonyms completely neglects one of the most common (and most disturbing) reasons that authors publish under a pen name: Tracking software makes an existing author name no longer commercially viable...
• ...at chain stores like Barnes & Noble. I'm no fan of the Riggio family's management of B&N, but the alternative being offered by investor Ron Burkle is worse. And that leads into the dubious land of takeover fights, poison pills, and management's "duty" to consider offers for a company, where short-term shareholder valuation too often seems to be the only measure of a business's viability.
• Two opposing reactions out of H'wood disclose something rather disquieting, but not at all surprising. The WGA wants the 'net regulated by the FCC and strictly neutral, while most of the other trade organizations and guilds oppose FCC guarantees of 'net neutrality through regulation. This isn't just a fight over "regulation," or even over "'net neutrality," though; it reflects the medieval/renaissance patronage structure of H'wood far more than anything else.
• On the international law front, it's becoming easier to learn about international law of human rights, thanks to an online summary of sources, while at the same time, overdue indictments for the Srbenica massacre have finally issued. John Yoo will not be pleased.
• Also on the human rights front, there have been some questions raised about how standing works (or doesn't) in the Proposition 8 case. Judge Walker's well-structured denial of the motion to stay by the proponents (PDF) properly points out that the proponents may have a lot of difficulty showing appellate standing in front of the Ninth Circuit. That leads to an obvious question, though: If they don't have appellate standing, why would they have standing in the trial court? Basically, that comes down to a longstanding (as in several centuries!) preference in the common law:
  • Whenever possible, matters are to be tried on their merits. Had the intervenors not come forward, there would have been a default judgment against Proposition 8, which would be bad for everyone. This way, Proposition 8 got a defense. However,
  • The judgment that issued was not against the intervenors, but against the State of California. Thus, the intervenors are not legally aggrieved by any aspect of that judgment... and therefore don't have appellate standing.

  I would have argued against the intervenors' standing in the trial court, too, but that's as much a policy and court-relationship-to-other-branches issue as anything else; it's messy; and if Judge Walker had denied standing only to be overturned, he would have had to do the trial anyway. And, naturally enough, those proponents have had time to file a 75-page "emergency motion for stay" in the Ninth Circuit... which doesn't sound like much of an emergency to me.

  Ironically, much of the law on appellate standing in this area comes from lawsuits that found that "mere taxpayers" did not have standing to challenge government actions that, in the eyes of those taxpayers, violated the Establishment Clause (or, in a couple of instances, the Free Exercise Clause). Hoist by their own petard; it couldn't happen to a more-deserving example of odious bigotry.