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OpenMarket: Law and Constitution

  • Money Violates Civil Rights Laws, Court Rules

    November 28, 2006
    A federal judge in Washington, D.C. has just ruled that America's money bills, such as $1, $10, and $100 bills, discriminate against the blind, in violation of the federal Rehabilitation Act, which prohibits the federal government and recipients of federal funds from discriminating against the disabled. Unlike some foreign currencies, such as the Euro, American money bills don't vary in size, color, or texture based on denomination, making it harder for blind people to distinguish them.  Blind people often end up folding each denomination differently in order to keep track of them.   The Rehabilitation Act has been construed to require agencies to make "reasonable accommodation" for the disabled unless doing so would cause "undue hardship."  The American Council for the Blind argued...
  • Freedom vs. Democracy – the Perpetual Tension between Voice and Exit

    November 27, 2006
    The current debate over whether the SEC should strengthen shareholder participation “rights” in public companies (subscribers see the Wall Street Journal editorial “Board Games” of November 27) is a replay of the old debate over whether society is better organized by “voice” (a broader participation in the management of the institution) or by “exit” (the decision to move oneself or one's assets to some entity). That distinction discussed in Albert O. Hirschman's Exit, Voice, and Loyalty: Responses to Decline in Firms, Organizations, and States in many ways distinguishes those favoring the politicization of society and those favoring liberty. The SEC faces...
  • Court Ensures Painful Death for Terminally Ill

    November 22, 2006
    Yesterday, the D.C. Circuit Court of Appeals voted to vacate and rehear its Abigail Alliance v. Von Eschenbach decision, which would have required the FDA to justify why it prevents gravely ill people who would otherwise die from obtaining access to drugs that have passed the first stage of the FDA's lengthy approval process. Decisions are usually reversed when they are reheard by the full court. Apparently, the specter of terminally ill people being able to access experimental drugs that might save their lives was just too scary for many of the D.C. Circuit judges. Perhaps they agreed with the specious arguments of the Washington Post, which editorialized against the D.C. Circuit's original decision in favor of the terminally ill by using the straw-man argument that no one has an affirmative right of access to medical...
  • Keeping an Eye on the CBS Legal Department

    November 21, 2006
    CBS is appealing new FCC indecency regulations (and fines) in court, arguing that the new rules run afoul of the First Amendment. Which, of course, they do. Hopefully the executives at CBS and other broadcast stations will remember this when reporting on other FCC intrusions into what we are allowed to see, hear, download, upload, talk about or even buy online. And just in case you were wondering what depraved indecencies have been getting the FCC's knickers in such a twist over the past few years, check out a pile of them here.
  • The Logic of Smoking Regulation: Your Apartment Is Now a Public Place

    November 16, 2006
    Dana Yates of the San Mateo, California Daily Journal brings us a bracing look at the future of tobacco regulation - a total ban on public smoking. And yes, that includes apartments and everyplace that isn't a "single-family detached residence." Take it away, Dana:
    Armed with growing evidence that second-hand smoke causes negative health effects, the [Belmont, California town] council chose to pursue the strictest law possible and deal with any legal challenges later. Last month, the council said it wanted to pursue a law similar to ones passed in Dublin and the Southern California city of Calabasas. It took up the cause after a citizen at a senior living facility requested smoke be declared a public nuisance, allowing him to sue neighbors who smoke.
    That's right, cranky senior...
  • Kelo Ruling Gutting Property Rights Will Live On

    November 15, 2006
    In Kelo v. New London (2005), the Supreme Court ruled 5-to-4 that private property (like your home) could be seized by the government for use by a politically-connected developer. That eroded property rights a lot. The 3 conservative justices (Rehnquist, Thomas, and Scalia) dissented from this ruling gutting property rights, along with one “moderate” (O'Connor), while the 4 liberal justices and one “moderate” (Kennedy) joined in the majority opinion gutting property rights. (Since then, two of the dissenters have retired or died). Now, thanks to the GOP's loss of the Senate, there won't be any conservative appointments to the Supreme Court for a long time. At least, that's what Democratic leader Charles Schumer (D-NY) promises. He says the Senate's new Democratic majority will...
  • When Your Home Is Not Your Castle

    November 7, 2006
    Craig Bannister emails this morning with more debate over the Kelo v. New London Supreme Court decision on the power of eminent domain. It seems 11 states have anti-property seizure ballot measures up this election day.
  • The ADA Meets Cyberspace

    November 1, 2006
    BNA is covering the recent district court ruling that Target can be sued if its website is inaccessible to the blind:
    In this class action suit—brought by the National Federation of the Blind (NFB)—the Court rejected Target's argument that only physical stores were covered by anti-discrimination laws, ruling instead that certain aspects of Target's virtual space—target.com— are subject to the Americans with Disabilities Act (ADA) and California state law. NFB and University of California Berkeley blind student Bruce Sexton brought the lawsuit, contending that Target's website violates the ADA as well as California anti-discrimination laws by failing to include, among other things, “alt-text”—which screen readers use to vocalize a description of an image to a blind computer user. The plaintiffs allege that...
  • Taking Tobacco to Court

    November 1, 2006
    In case you missed it, the Supremes are tackling a major tobacco/tort reform liability case this week. AP's Mark Sherman has the story:
    The Supreme Court grappled Tuesday with whether to allow a $79.5 million verdict against a cigarette company, a case that business groups are pointing to in asking the justices to clamp down on large damage awards. Mayola Williams was in the crowded courtroom to hear the justices discuss the judgment that an Oregon jury imposed against Altria Group Inc.'s Philip Morris USA in connection with the death of her husband, Jesse. A two-pack-a-day smoker of Marlboros for 45 years, Jesse Williams died of lung cancer nine years ago. Mayola Williams followed through on a promise she said she made to her husband and sued Philip Morris, which makes Marlboros,...
  • Turning Free Speech Upside Down

    October 31, 2006
    Thomas Jefferson once wrote that “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical.” A similar principle is rooted in the First Amendment, which generally prohibits the government from forcing people to pay for speech with which they disagree. Federal law nevertheless permits states to impose “agency shop” arrangements under which every employee in a unionized workplace, even though not a union member, must pay to the union, as a condition of employment, a compulsory service charge equal in amount to union dues. The Supreme Court rejected non-union employees' challenges to such coerced charges on freedom of association grounds in Railway Employees v. Hanson (1956). But it softened that harsh result by ruling in Abood v. Detroit Board of Education (1977), that such compelled charges cannot be used over an...

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