Interest Free

A recent decision relating to Wisconsin’s controversial law restricting the collective-bargaining rights of public sector unions in the state raises an important question that I constantly come up against when it comes to discussing Constitutional rights with people who don’t have a background in the law. According to a Madison lawyer, a federal district judge determined that the law restricts the free speech rights of those in public sector unions. Now, for most people, if this was the case, that would mean that the law would be illegitimate. But that’s not why the judge made his decision as he did; instead, his argument is that the government failed to demonstrate a compelling state interest in restricting these rights.

When it comes to the Constitution, most people tend to think that its provisions, especially those contained in the Bill of Rights, are absolute, even if they know that you’re not allowed to shout “fire!” in a crowded theater. But that’s exactly what judges mean when they say compelling state interests: Constitutional rights are absolute, unless there’s something more important at stake. So the next time you think, “They can’t do that, it’s in the Constitution!” remember – maybe they can.

Change We Can’t Believe In

The Law Offices of Donald D. GuthrieA Massachusetts judge recently ordered that a man imprisoned for killing his wife in 1990 be provided by the state with the expenses necessary to undergo a sex change operation. The decision was based on the man’s supposed “serious medical need” to undergo this procedure in order to prevent suicidal tendencies. For the past 20 years, Michelle Lynne Kosilek, formerly Robert Kosilek, has suffered from gender identity disorder, believing himself to be a woman trapped in a man’s body.

I don’t dispute that Kosilek may be suffering from a real medical condition which may, in fact, place his own life in danger. What I do take issue with is the idea that it is the state’s responsibility to provide this person, who strangled his own wife to death, with a costly, medically unnecessary procedure in order to reduce his suicidal tendencies. It is neither cruel nor unusual to refuse to place taxpayer dollars in the service of a deranged lunatic, and to act as though it is represents an unnecessary case of judicial overreach.  It’s very possible that this case may develop into a wrongful death lawsuit.

Paper Chase

According to an Arizona lawyer, a federal judge has upheld the most controversial aspect of Arizona’s already-controversial immigration law, the provision which allows law enforcement officials to question the immigration status of individuals who have been stopped for other reasons (such as speeding). The provision, which is known by detractors as the “show-me-your-papers” provision, has come under fire because of its obvious potential for civil rights violations and racial profiling.

I feel conflicted about this one. On the one hand, I do think that states should be given a wide latitude to come up with measures which allow them to more effectively enforce their laws (because, after all, a law is only a law insofar as it can be put into effect). On the other hand, in my experience, law enforcement officials frequently overstep the boundaries of their authority, and a provision such as this which essentially gives them carte blanche to inspect individuals’ immigration status (and which will clearly only be directed at racial minorities) has a serious potential for abuse. Ultimately, I probably have to come down against this, in terms of preference, while acknowledging that the federal judge probably made the correct ruling. Now, if there is evidence of systematic abuse of this system in a few years, I think a civil rights lawsuit could justifiably be filed to try and end discriminatory practices.

Rotten Apple

The recent decision by nine jurors of a U.S. District Court, which held that Samsung had infringed on Apple’s patents on several features of its smartphone technology, serves to highlight the problem that patent law is beginning to experience in the age of technology. While it’s unquestionable that Samsung’s phones did substantially resemble (or copy, if you prefer) Apple’s product, it remains an open question as to whether or not those features should be able to be patented at all.

An analogy can help make this issue clear. Someone originally invented the automobile, and it largely resembled its present form, with brakes under a steering wheel and a gear shift to the driver’s side. Now, suppose that person had patented the steering wheel-brake-gear shift alignment available in that vehicle. What would other car manufacturers do? I suppose they could have created a system of hand breaks, though that sounds dangerous and impractical. More importantly though, it would have done absolutely nothing to serve the public interest. Indeed, it would have been quite obviously bad for the public, either creating a company with a monopoly on cars or else creating a wide range of different vehicle types, making learning to drive much more difficult.

The bigger point is, when it comes to technological innovation, a large part of the process involves imitating (and improving upon) what others have done in the past. But the way our patent system is presently devised, the first company with an innovative idea can patent many different unique features and effectively stifle competition against its products. It’s anti-free market, and it’s anti-public interest. Well, excuse me, but I still believe in both the free market and the public interest.

New York’s Ultimate DWI Loophole

www.unionlawfirm.comOn July 3rd of 2011, Albany area teenager Alix Rice was struck by an automobile while riding her skateboard home from work.  The driver of the car, Dr. James G. Corasanti, was intoxicated, texting while driving, and speeding when he swerved into the bicycle lane and hit the young girl.  After fleeing the scene of the crime, Rice died.

Corasanti was later charged with driving while intoxicated in addition to vehicular manslaughter, but in an absurd twist of fate, his attorney was able to successfully argue that because of his extreme intoxication, Corasanti did not realize he’d hit an 18 year old girl, and could not therefore be held responsible for his actions.  The jury acquitted Corasanti on all charges except a misdemeanor drunk driving charge and sentenced the doctor to one year in jail.

In an effort to close the loophole that allowed this man to argue that his drunken actions were not actually his own fault, the people of New York, led by Senator Patrick M. Gallivan, are fighting to change the law.  The bill, called “Alix’s Law”, was approved by the New York Senate, but has now been tabled until the legislature is back in session.

In case my opinion on the matter is not clear, I am absolutely amazed it has taken this long to address such an outstanding problem in the judicial system in New York.  Drunk drivers should not have any opportunity to argue their way out of legal repercussions for their recklessness.  It is absolutely imperative that New York lawyers and law makers find a way to ensure that these criminals are held accountable for any property damage, injuries, and deaths that they cause.

Indecent Proposal

Last Friday, three young girls filed a lawsuit against Backpage.com for allowing them to be sold for sex.  The girls were captured by pimps after running away from home and then required to participate in various sex trafficking activities such as posing in lingerie.  One of the girls was 13 years old, and another only 15.  The lawsuit is intended to hold Backpage.com responsible because they “allowed” the advertising of underage girls.

The suit refers to the Communications Decency Act of 1996, a document intended to protect service providers from the opinions and statements of their users.  A federal judge declared that Backpage.com should be required to advertise the ages of their girls, but Backpage is arguing that this violates both the Communications Decency Act, the Commerce Clause of the Constitution, and the 1st and 5th Amendments.

I’m unimpressed that Backpage.com has not accepted this arrangement and instead, has chosen to fight the people that work to put an end to child-sex trafficking.  Although they have every right to defend themselves, there are some situations in which public decency should trump self-defense.

Illegal Legalities

A recent case in California is testing the limits of how far our country is willing to extend legal rights to those who come to our country illegally. In California, a man is applying to be admitted to the bar to practice law in the state. The only problem is, he’s here illegally. The California Supreme Court is currently considering whether or not to grant his request, even though the U.S. Department of Justice has made clear that doing so would contradict federal law.

Some people are saying this is a difficult case, with a variety of legal issues to consider. Let me make it real clear – it isn’t. I have nothing against this man, he sounds like a perfectly hard worker (I should know; passing the bar is not an easy thing to do) and his circumstances are at the heart of the American success story. But he isn’t here legally, and there is simply no way that he can legally practice the law. The idea of a rule of law is that it applies equally to everyone, and as much as I can sympathize with his case, there cannot be exceptions. None, whatsoever.

Trouble In Pennsylvania

As I’ve said before, I think the sexual abuse of a child is one of the worst things that any person can do, and I have no tolerance whatsoever for those who commit or abet these kinds of abominable acts. So I welcomed the recent news that the victims of Jerry Sandusky, the former defensive coach at Penn State University who was recently convicted for the serial molestation of numerous young children, have planned to file a lawsuit against the University for its role in allowing him to continue his heinous acts for more than a decade.

I know that a lot of people feel that the University has already been duly punished, both by the NCAA and by the serious damage that has been done to their reputation as a result of the scandal. While these measures are an important step in the right direction, really, it’s important that the school be held fully accountable for the consequences of actions committed by their officials, even if those individuals are no longer with the institution. And one of the requirements for this type of accountability to be achieved is for the victims to get the restitution they deserve for the pain and suffering they had to endure.

Supreme Court Considers Life without Parole for Juveniles

In the coming weeks, the Supreme Court will release its opinion on whether or not it is constitutional to subject individuals younger than 14 years of age to life imprisonment without the possibility of parole. Two separate cases, one involving a 14 year old who was involved in a robbery that ended in the murder of a store clerk (though the teen was not the actual killer) and another involving a 14 year old who beat and set fire to an elderly neighbor, are being used to challenge these laws, the harshest punishment available for juvenile offenders since the court struck down the juvenile death penalty in 2005.

Constitutional law is not my expertise, but knowing the current court’s makeup, I have a hard time believing that they will overturn these laws. The bigger question, for me, is whether they should. From a personal standpoint, I see these two cases as being fundamentally different: I don’t think felony murder (the crime of being involved in a crime that leads to the death of another person, even though the individual didn’t directly cause the death) should qualify a youth offender for life imprisonment, simply because kids get involved in things that they don’t understand, like this robbery, without being able to anticipate this type of consequence.

On the other hand, a kid that sets his neighbor on fire? You know what? I’m fine with him getting life imprisonment.

Spinal Cord Injuries At The University Of Illiniois

The Law Offices of Donald D. GuthrieDave Waller at the University of Illinois understands more than most that the spinal cord is an essential part of the body that provides a direct link between a person’s brain and the rest of his body.  For this reason, any injury to the spinal cord can mean a serious disruption of that link, and the loss of physical and mental abilities that it provides.  Many spinal cord injuries result from the dangerous actions of other people, and leave victims powerless and dependent on those around them for constant attention and care.  However, some victims of spinal cord injuries have been able to glean compensation out of a personal injury lawsuit, which can help pay for the costs that often arise from this type of injury.

Two Most Common Spinal Cord Injuries

A spinal cord injury can result in a variety of life-changing circumstances.  Two of the most common and most commonly recognized types of spinal cord injuries are:

  • Paraplegia (partial paralysis)
  • Quadriplegia (total paralysis)

These two conditions can seriously impact a person’s ability to provide for himself or herself, and more often than not, they necessitate constant medical attention and subsequent cost.  Treating and living with these conditions can be extremely expensive, but many victims of spinal cord injuries have sought financial compensation through a personal injury lawsuit against the person who caused their injury. An Urbana personal injury attorney can help you better understand your legal options for pursuing this type of legal action.