: Supreme Court Nominee John Roberts Jr. On The Dickensian Lawyer Scale. Sydney Carton? Uriah Heap?

July 29, 2005 by · Leave a Comment
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Ever wonder about Roberts, outstanding student and athlete in high school, outstanding student and athlete in college, outstanding student in law school, Supreme Court clerk, White House Attorney, Deputy Solicitor General, partner in a prestigious Washington corporate law firm, Federal Appeals Court Judge. Married with two children. Associates with well-known conservatives, Reagan, Starr, Rehnquist. Bush Sr. and Bush Jr. He was slated for the Federal Appellate Court by Bush Sr. but Bush Sr. lost the 1992 election and his nomination died in the Judiciary Committee. This seems to be one of the few miscalculations in his life.

No problem with the draft because he was too young. No screw-ups as a kid. No DUI’s like Bush or expulsion from Harvard like Teddy Kennedy. No drunken auto accidents. No misdemeanors for breaking windows or for unlawful student demonstrations. No published personal philosophy or personal position papers. Lots of conservative memos and legal advice while a White House Attorney. Bush won’t release his memorandums while Principal Deputy Solicitor General to Kenneth Starr! Hm.. that’s strange. Wonder why. Roberts seems to be the epitome of a bloodless conservative. Nary a shred of pragmatism or enlightened imagination in his record as a person, lawyer or justice.

He was compelled to uphold the conviction of a twelve year old girl who was arrested and imprisoned for eating a french fry on the subway instead of being issued a ticket as an adult would have been because she was too young?
The disturbing but politically correct reasoning in his opinion misses the point of this law enforcement overreaction to an infraction by a minor that leads to her incarceration. It should have been handled differently.

Marries late in life and then to a woman lawyer too old to have children. No birth control problem there.

All his life he has been a nay sayer to enlightened social and economic policy. Always alert to finding ways to narrowly interpret the law to further some gimlet eyed conservative end. He has used his intellect and imagination to buttress ultra conservative viewpoints whenever he could.
PRO BONO WORK

We never hear of any major pro bono work done on behalf of the general public, or even on a local basis in the Courts of Washington D.C. No representation of a convicted criminal in an appeal involving constitutional questions and his specialty is federal appellate work. No counseling of minors in the grip of the legal system. Just all those calculating endeavors in the conservative Washington hierarchy in concert with the major political conservatives.

He denied he was a member of the Federalist Society founded by Bork and Scalia then later it is revealed he was listed in their directory in the late 1990’s as a member the Federalist Societies Steering Committee. Strange he didn’t remember. He seems to have remembered everything else. More on the Federalist Society( http://www.edsopinion.com/modules.php?op=modload&name=News&file=article&sid=68)

Bush wants to reverse the flow of history more than he already has with this nominee who has a reputation for thinking inside the box or backwards by a narrow interpretation of the Constitution. There seems to be no inclination to take past precident and meld it with the facts of a changing environment and society to create a new legal synthesis based on the old legal priciples

The Bush administration must be a little edgy about their conservative boy wonder. They are starting a campaign to defend Roberts as a Catholic. Even though he has not been attacked on those grounds and three of the present Justices are Catholic and it doesn’t seem to be a problem. I guess this is another Karl Rove red herring.

Well what’s the problem? Nothing, except his path to the Supreme Court seems to be too calculated. No childhood pranks that led to problems. No student passions that led to trouble with the law. No draft or military problems. No women problems. No compassionate stances for his fellow man as a man or a lawyer. Always the correct position from a conservative point of view. Even notable Constitutional lawyers like Tribe and Boies have nothing to say against him probably because they realize they might have to appear before him one day. No major physical,(like FDR) personal or social obstacles to overcome. No race, poverty or even gender obstacles (like Sandra Day O’Connor). Is this who we want on the Supreme Court? Is he a Sydney Carton the lawyer who sacrfices his life in place of Charles Darnay on the guillotine saying, “It is a far,far better thing that I do,than I have ever done;it is a far, far better rest that I go to than I have ever known.” Or a calculating, manipulative Uriah Heap, the lawyer, whose only concern is himself no matter what the cost to others. Only time will tell.

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Karl Rove, Valerie Plame, Joe Wilson, Judith Miller and Robert Novak. Why This Story Won’t Die.

July 22, 2005 by · Leave a Comment
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Karl Rove Master Of Deceit.
In reviewing the facts on the Karl Rove-Valerie Plame matter one has to ask oneself who would benefit from disclosing that Valerie Plame was a CIA expert married to Joseph Wilson. Wilson wrote an op-ed piece for the New York Times stating that the Administrations claim that Iraq was buying or trying to buy yellow cake (used to make a nuclear weapon) from Niger as part of the justification for invading Iraq was not true. He was a former ambassador and an expert on Africa and Iraq where he had served as charge’d affairs in the U.S. Embassy before the 1991 invasion. He had been commended by Bush Sr. for his work in Iraq.

The Karl Rove Smear of Joseph Wilson.
Karl Rove was trying to get out the story that Wilson was sent to Niger to check out the yellow cake story by his wife on behalf of the CIA and therefore his claim was to be disregarded. However it has been later verified by others and admitted by the Administration as true. Also Valerie Plume did not have the authority to send her husband to Niger. Higher ups in the CIA did that after Vice President Cheney wanted more information. When Wilson’s report did not verify the Administration’s claim it chose to ignore it. Wilson decided to go public in the op-ed piece and he was smeared as a political hack who engineered his trip to Niger through his wife. All untrue.

The Karl Rove Smear of John McCain.
It turns out that Rove spoke to at least two reporters identifying Wilson’s wife as a CIA agent and an expert on weapons of mass destruction. Also Scooter Libbey, Cheney’s spokesman, did so too. All this would be typical skull duggery by Rove and company to disseminate disinformation on the reasons given for invading Iraq. No matter who had to be smeared. However he went too far in identifying Wilson’s wife as a CIA agent and expert on weapons of mass destruction in his smear because it was a crime. One wonders why a member of the Administration would be talking about a CIA agent who was a covert agent and had worked outside the U.S. in covert positions anyway. Now all the work she has done in the past is being investigated by the countries where she was stationed. Her status was still classified as secret and only the CIA had the authority to declassify her not Karl Rove, Scooter Libbey or their journalist front man Robert Novak. This is a typical Rove smear much like the smear of John McCain after he won the Republican primary in New Hampshire and the primary in South Carolina was critical to Bush. A story was circulated that McCain had an illegitimate child with a black woman. The truth was that John McCain and his wife had adopted a black child to raise with their own children. The smear worked and Bush won South Carolina and the Republican nomination

Novak has not been indicted yet and it’s his syndicated column that disclosed the name of Valerie Plame and her status with the CIA as and expert on WPM and the fact that she was married to Joseph Wilson who wrote the op-piece. Whatever deal he made with Special Prosecutor Patrick Fitzgerald as to the source of his information has not been disclosed.

However he testified before the grand jury. He is considered to be a conservative columnist for the Chicago Sun-Times.
WHY THIS STORY WILL NOT DIE.

This Story Will Not Die Because Judith Miller Is In Jail.
This story is not going to die because a reporter for the New York Times is in jail for refusing to disclose her source on the case even though she did not write a story. Normally federal prosecutors don’t put reporters in jail unless they believe they have a strong case. Otherwise they raise the wrath of the press needlessly. Her fellow reporters will keep the story alive until she is released and the truth comes out either through journalist investigation or an indictment of the leakers. The fingerprints of Karl Rove are all over this case. This matter certainly falls within his M.O. All that remains to be seen if he will sleaze out of it and avoid criminal prosecution or if Bush will go back on his vow to fire the leaker. I think Bush will not fire him unless he is convicted of a crime as they are birds of a feather.

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What’s Wrong With The Pop Music Business? The Ramifications of MGM v. Grokster.

July 13, 2005 by · Leave a Comment
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t used to be that American pop music was an affirmation of life and love, think of “My Girl” by the Temptations or any of the songs by Ray Charles or the myriad of other pop artists before the current rap scene. Black artists in particular seemed to breathe the essence and the joy of living and loving into their music. Ray Charles, Jackie Wilson and the Temptations are just a few of many great black artists who did so.

Pop music seems to have two parts now; a bland Country Western for broader appeal. I doubt if yesterday’s C and W artists would be comfortable with the fake angst of the genre today. And the darker Rap music that’s calls up the seamier side of life and in, particular the brutal and darker side of sex. Love is no longer celebrated as love. Sex is described as something close to rape and it is not love anymore but sex for itself alone. Life is celebrated as living in a kill or be killed world. There is no respect for anyone else including members of the opposite gender. Of course there are exceptions to these generalizations but these seem to be the main currents of Pop music today.

The music business finds itself in decline and blames this decline on Internet down loaders who exchange songs for free. Hollywood has made at least one movie, “Be Cool”, depicting the music business as corrupt. Buyers of music albums for a long time felt they had to pay for unwanted songs bundled in an album in order to get the song they wanted. If they felt ripped off they are getting their revenge with iPODS that allow them to download the songs they want to hear in compilations they want to listen to at a reasonable price. Others take their revenge out through file sharing with other Internet users.

Non comercial sharing of music between immediate friends or family was always considered fair use under copyright law.

Even Universal v.Sony,(click here) was based on the argument that Sony’s Video Recorders would be used for time shifting of programs so a consumer could record a program to be viewed later at a more convenient time for his own use was fair use under copyright law. The ruling said that new devices that could be used for legitimate uses as well as illegitimate uses could not be banned from the market place. Further that manufacturers or purveyors of such devices could not be sued for copyright infringement. Much like an auto dealer who sells a man a car who uses the car in a bank robbery to pay for the car is not liable for the criminal act of the man. Even if the auto dealer knew that the man could use the car for a criminal purpose.

MGM v. Grokster

The recent MGM v. Grokster case took this a step further and said the purveyors of technology, in this case P2P file sharing by Grokster and Streamcast (Morpeus) via the Internet, could be liable for the infringement of copyright even though the software and devices could be used for legitimate file sharing uses. Thus giving a powerful litigation advantage to members of the Recording Industry Association of America (RIAA) and the Motion Picture Association of America (MPAA) who are now free to sue not just youthful offenders and their grannies but purveyors of file sharing software and companies like Microsoft and Sony also who make (read encourage) technology that could be used to infringe. This is likely to inhibit research and development of technology that could be valuable for legitimate uses as well as copyright infringement. (click here)

Grokster v. MGM placed responsibility on the purveyors but only if they actively encouraged copyright infringement. The irony of this is that if the owners of copyrights, Universal and the producers of television entertainment had won Sony in the first place there probably would have been no commercial incentive to develop DVD or CD players and recorders from which the motion picture industry gets a large share of its current profits.

Music is different from DVD in that it can be presently downloaded in a few moments whereas movies take considerably longer even with broadband.

As Ye Sow So Shall You Reap.

Tthe music industry for a long time it bundled an artists inferior work with his best work and forced the consumer to buy it. Albums cost about twenty dollars and for many young people who are the consumers and target audience of this product it was an extortionary price.

The music industry instead of developing the
Apple model sat on its old business model in the face of changing technology hoping that the courts would vindicate them.

The problem here is how much infringement constitutes liability and does just the act of making P2P software constitute encouragement of infringement? What would be the damages? Thousands, millions or billions of dollars? Damages large enough to put Microsoft or Sony out of business or possibly liability so draconian that it would prevent inventors from developing new technology that could be have valuable legitimate uses but could be used by a few to infringe on copyrighted material.

The music business needs a new business model, perhaps along the iPOD model or some other new innovative model. Obviously the demand is there. Perhaps the problem lies with their current content and their bundling method of sales. At any rate the music business can now sue the creators of the technology which made their monopolistic and abusive practices unprofitable along with the consumers or wise up and change to meet the new marketplace and the youth culture that is infinitely more digitally sophisticated than the RIAA and the MPAA.

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