From NBCNews: Assault Weapons Not Protected by Second Amendment, Federal Appeals Court Rules

This will very likely end up in the Supreme Court.

- Click here for the article.

Maryland's ban on 45 kinds of assault weapons and its 10-round limit on gun magazines were upheld Tuesday by a federal appeals court in a decision that met with a strongly worded dissent.

In a 10-4 ruling, the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, said the guns banned under Maryland's law aren't protected by the Second Amendment.

"Put simply, we have no power to extend Second Amendment protections to weapons of war," Judge Robert King wrote for the court, adding that the Supreme Court's decision in District of Columbia v. Heller explicitly excluded such coverage.

Maryland Attorney General Brian Frosh, who led the push for the law in 2013 as a state senator, said it's "unthinkable that these weapons of war, weapons that caused the carnage in Newtown and in other communities across the country, would be protected by the Second Amendment."

"It's a very strong opinion, and it has national significance, both because it's en-banc and for the strength of its decision," Frosh said, noting that all of the court's judges participated.

Judge William Traxler issued a dissent. By concluding the Second Amendment doesn't even apply, Traxler wrote, the majority "has gone to greater lengths than any other court to eviscerate the constitutionally guaranteed right to keep and bear arms." He also wrote that the court did not apply a strict enough review on the constitutionality of the law.

"For a law-abiding citizen who, for whatever reason, chooses to protect his home with a semi-automatic rifle instead of a semi-automatic handgun, Maryland's law clearly imposes a significant burden on the exercise of the right to arm oneself at home, and it should at least be subject to strict scrutiny review before it is allowed to stand," Traxler wrote.

National Rifle Association spokeswoman Jennifer Baker said, "It is absurd to hold that the most popular rifle in America is not a protected 'arm' under the Second Amendment." She added that the majority opinion "clearly ignores the Supreme Court's guidance from District of Columbia v. Heller that the Second Amendment protects arms that are 'in common use at the time for lawful purposes like self-defense.'"

From the Chicago Tribune: Court says Consumer Financial Protection Bureau is unconstitutional

It's organization violates the separation of powers.

- Click here for the article.

A U.S. consumer watchdog agency that helped unravel the Wells Fargo & Co. scandal has an unconstitutional structure because it gives too much power to its director, a federal appeals court ruled Tuesday.

The court said the way that the Consumer Financial Protection Bureau is organized violates the Constitution’s separation of powers because it limits the president’s ability to remove the agency’s director, currently Richard Cordray, a Democrat and former Ohio attorney general.

The ruling, if upheld, would curtail the authority of an agency that has been opposed by the banking industry and some Republican critics.

They view the CFPB — established as part of the Dodd-Frank reforms after the financial crisis of 2008 and 2009 — as a thorn in the side of the industry and one that has overreached in its regulation of consumer financial matters.

“This is a good day for democracy, economic freedom, due process and the Constitution,” Rep. Jeb Hensarling, R-Texas, chairman of the House Financial Services Committee, said in a statement.

The law now states that the bureau’s director can be removed only “for cause,” such as neglect of duty. The court said that conflicted with the Constitution, which allows the president to remove executives for any reason.

Hensarling has proposed overhauling Dodd-Frank, including replacing the CFPB’s single director with a bipartisan, five-member commission. On Tuesday he called the CFPB “arguably the most powerful and least accountable Washington bureaucracy in American history.”

But consumer advocates and some top Democrats decried the court’s ruling, saying it opened the door to the prospect that the CFPB’s efforts could be weakened under increased political pressure from the White House and Congress.

The law creating the CFPB “carefully struck a balance between protecting the consumer bureau from politics and the (financial) industry’s political allies while ensuring it was accountable and had effective oversight,” said Dennis Kelleher, president of the consumer advocacy group Better Markets.

The court’s ruling is “damaging to American consumers” and “it’s going to embolden the industry that’s been trying to kill” the agency, Kelleher said.

The CFPB said it disagreed with the ruling by the three-judge panel of the U.S. Court of Appeals for the District of Columbia, and asserted that the ruling would not slow its efforts to investigate wrongdoing and seek enforcement actions.

- Click here for more from the ABA Journal.
- Click here for the decision.

From the Texas Supreme Court: Texas Supreme Court Rules on Who Owns Dog

The court ruled on what the term "impounded" means. It does not include a transfer of ownership.

Now we know.

- Click here for the story.

A three-year legal fight over a German shepherd named Monte Carlo was resolved by the the Texas Supreme Court Friday in a case that may sound like an April Fool's joke but was anything but a laughing matter for those involved.

The court ruled unanimously that a Houston family did not forfeit their ownership claims over their dog even though he had been picked up by local animal control and transferred to a foster home. Nothing in Houston's ordinances “states or implies that a dog merely held by a private shelter, awaiting adoption, has been divested of the ownership rights of the original owner,” the justices stated in an unsigned opinion.

The case began when siblings Alfonso and Lydia Lira’s dog escaped from an open garage door on New Year’s Day 2013. According to case documents, Lydia Lira immediately began searching lost dog websites following Monte Carlo's escape. Meanwhile, the city of Houston’s animal control department picked the dog up. Though they posted his information online, they mistakenly listed him as a Belgian Malinois dog, so he did not come up in Lydia Lira's searches for missing German shepherds on the department's website.

Eight days after Monte Carlo's escape, Lydia Lira saw a message on a missing dog forum indicating her dog might be with the Houston animal control department. She visited the department that day, and identified Monte Carlo from a photograph. Animal control officers told her that Monte Carlo had already been transferred to the privately owned Greater Houston German Shepherd Dog Rescue. One of the rescue volunteers, Cindy Milstead, had agreed to foster the dog. When Lydia Lira called Milstead that afternoon to claim Monte Carlo, Milstead refused to give him back. The private rescue agency said the Lira siblings had lost their right to recover Monte Carlo because they did not come to claim him in his first three days at the pound.

The court disagreed, writing that the term “impounded” “does not suggest a transfer of ownership or the loss of the owner’s right to the return of his property,” the court's opinion read.

Bollea (Hulk Hogan) v Gawker: The latest test of the freedom of the press

We've been looking at the judiciary in most classes - on the state and national level - and here's a case that involves a lot of what we've been covering on the state and national level.

Including:

- free press
- free speech
- the right to privacy
- appeals

For detail, there's this item from the New Yorker's general counsel:

- The Stakes in Hulk Hogan’s Gawker Lawsuit.

On Monday afternoon, a Florida jury added twenty-five million dollars in punitive damages to the hundred and fifteen million dollars it had awarded Hulk Hogan, on Friday, in his invasion-of-privacy case against Gawker Media. Hogan sued Gawker for posting portions of a sex tape it received from an anonymous sender. It’s a shocking amount, not least because it’s forty million dollars more than Hogan (whose real name is Terry Bollea) had demanded.

Verdicts of this size can pose an existential risk to a media company. Gawker has reported that it earned forty-four million dollars in revenue in 2014, and in January Gawker’s owner, Nick Denton, announced that he had sold a portion of his company to investors in order to fund this case. Gawker will certainly appeal the verdict, as it should (after it pays a bond of up to fifty million dollars), arguing that the jury was unreasonable in finding that Hogan’s right to privacy outweighed Gawker’s right to publish the material, which it believed was of public interest. The publication of a videotape of consensual sex between adults is not the most appealing place to plant a First Amendment flag. But it is worth considering the possible effects on publishers if a judgment of this magnitude is allowed to stand.

There appears to be something of a consensus that the jury decision will be overturned on appeal - specifically by an appellate court that does not have the same dislike of the media that a trial jury might have. Hogan claims the tape humiliated him, but he has been up front about details of his sex life before,plus he is a public person. He has less of a claim to privacy than other who are not in the spotlight have. The right to publish newsworthy content seems to generally trump the right to privacy. And there is the complicating factor regarding the impact the decision might have on press on the internet.

For more:

- Jury awards Hulk Hogan $115 million as Gawker looks to appeal.
- Gawker to Appeal Verdict Awarding Hulk Hogan $115 Million.
- Here's Why the Gawker Verdict Should Be—and Likely Will Be—Overturned.
- Trial judge in Hulk Hogan-Gawker case is most reversed in Pinellas.

Here are previous court rulings concerning the question of Hogan's privacy.

- Bollea v. Gawker.
- Gawker v Bollea.

From the Austin American Statesman: Appeals court’s rulings limit warrantless blood draws

The Bill of Rights in Texas as defined by the Texas 3rd Court of Criminal Appeals.

- Click here for the story.

The Texas 3rd Court of Appeals delivered three rulings Wednesday that essentially gutted a portion of the state law that allowed police in certain circumstances to draw blood from suspected drunken drivers without a warrant.

The court ruled that police can no longer rely on portions of the Texas Transportation Code that say they don’t need a warrant if a driver has two previous convictions for driving while intoxicated or if the driver had caused a serious injury.

One case reviewed by the court involved a suspected drunken driver who was involved in a 2011 crash that sent two people to the hospital. The driver, Gina Roop, refused sobriety tests and didn’t consent to police taking a blood sample.

However, at the Travis County Jail, the Austin police officer who detained her ordered her blood drawn, which indicated Roop’s blood alcohol level was 0.276, more than three times the legal limit. Roop tried to have the blood test suppressed in her case, but a judge ruled against that. She later pleaded guilty to felony driving while intoxicated.

One of the three rulings Wednesday voided her conviction and ordered a new trial. The appeals court ruled that blood could only be taken without a warrant if a police officer was in a situation in which a warrant couldn’t be obtained before the driver’s blood alcohol level returned to normal. In Roop’s case, a magistrate was on call at the time of her arrest, but the officer made no attempt to get a warrant.

And in other Texas Ethics Commission news ....

Here's a bit on an ongoing dispute it has had with a leader of an influential Tea Party affiliated activist. The Texas Ethics Commission thinks he's a lobbyist and should be subject to rules related to lobbying in the state. He disagrees.

- Click here for "Ethics commission wins at appeals court in lobbying case."

A state appeals court has ruled against a powerful conservative activist locked in a long-running legal feud with Texas’ campaign finance regulator, ordering a case that centers on a fine for breaking lobbying laws to be transferred to Travis County. 

Empower Texans President Michael Quinn Sullivan, an influential figure in tea party circles, was fined by the commission in July 2014 for not registering as a lobbyist after it found “evidence of direct communications intended to influence legislative action.”

He appealed in state district court. However, shortly after the fine was levied, Sullivan claimed Denton County as his primary residence in a move that allowed the legal challenge to play out in North Texas as opposed to Travis County.

The Fort Worth-based 2nd Court of Appeals issued a ruling Wednesday to overturn a lower court that had determined Sullivan was a resident of Denton County. The appeals court also ordered the case to be transferred to Travis County, which the court described as the “mandatory venue.”

In the roughly 15 months that the case has bounced around state courts, residency has emerged as a key issue in the case. The commission had long charged that Sullivan plotted to evade a state fine for breaking lobbying laws by claiming residency outside of traditionally liberal Travis County and taking his case up north, where it was dismissed by a judge in Denton earlier this year.

Sullivan’s lawyers, who argue that his actions never amounted to lobbying, said he had long-standing roots in North Texas before claiming Denton as his residence, including family ties and an Empower Texans office.

The three-judge panel at the appeals court rejected that, along with an affidavit Sullivan signed attesting to Denton residency, saying the argument “is nothing more than a legal conclusion unless it is supported by facts that establish such residence.”

For more:

- Wikipedia: Michael Quinn Sullivan.- Tribpedia: Michael Quinn Sullivan.
- Wikipedia: Texans for Fiscal Responsibility.
- Appeals Court Backs Ethics Commission Over Activist.

Appellate Court Decisions

Last week U.S. Circuit Courts of Appeals made a handful of decisions worth a look. This gives 2305 students an opportunity to look ahead to this specific institution and the judicial process as well.


- NYT: Ruling Limits Protests Outside Supreme Court.

A federal appeals court on Friday upheld 65-year-old limits on protesters’ First Amendment rights to gather and wave signs on the grand plaza in front of theSupreme Court, reversing a district court ruling that had found the restrictions “plainly unconstitutional.” A three-judge panel of the United States Court of Appeals for the District of Columbia Circuit ruled unanimously that restricting demonstrators to the wide sidewalks alongside the plaza was a reasonable limit to preserve the court’s decorum.

- Washington Post: Appeals court deals blow to lawsuit over NSA’s bulk phone data collection.

An appeals court in Washington dealt a setback Friday to an activist’s lawsuit against the government over the legality of the National Security Agency’s call records program, ruling that the plaintiff has not proved his standing to sue. A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled that ­public-interest lawyer Larry Klayman, the founder of Freedom Watch, has not proved that his own phone records were collected by the NSA — and so has not met a condition of bringing the lawsuit. It sent the case back to a lower court for further deliberation on the issue. The panel’s ruling also reversed a ban on the NSA’s collection that had been imposed — and temporarily stayed — by a district court judge in December 2013.

- Texas Tribune: Court: Texas Voter ID Law Violates Voting Rights Act.

Texas’ four-year-old voter ID law violates the Voting Rights Act but is not a “poll tax” barred under the U.S. Constitution, a federal appeals court has ruled. The U.S. 5th Circuit Court of Appeals on Wednesday ruled that the Texas voter ID law has a “discriminatory effect” that violates the federal law that prohibits racial discrimination in voting, but it is not an unconstitutional “poll tax.”

From the Texas Tribune: Water Ruling Cuts State's Power in Droughts

California recently responded to a crisis in the availability of water by placing limits on usage.

Texas Courts of Appeals have made it difficult for that to occur in Texas should our drought get that bad.

- Click here for the article.

A state appeals court has sided with farmers, ranchers and other longstanding water rights holders in a Brazos River case with widespread implications for future water battles in drought-prone Texas.

Upholding a lower court’s ruling, the 13th Court of Appeals in Corpus Christi on Thursday ruled that Texas cannot give special treatment to cities or power generators over more “senior” water rights holders on parched rivers – even if the state declares it necessary to protect the “public health, safety and welfare.”

As it stands, the decision would require some cities, power generators or others with more “junior” river rights to pay up or go thirsty when severe drought strikes.
The Texas Farm Bureau, which challenged a Texas Commission on Environmental Quality policy giving cities preferential treatment in certain water squabbles, applauded the ruling.

“It’s a clear win for private property rights,” said Regan Beck, assistant general counsel for the group. “The rules that TCEQ is trying to promulgate would really do away with the priority system as we know it.”

The TCEQ said it was "disappointed" in the decision and planned to appeal it to the Texas Supreme Court.

Prioritizing access for cities and power plants is "essential for public health, safety and welfare throughout the state, especially during these times of record drought," Terry Clawson, its spokesman, said in a statement.

Attorney General Abbott will appeal yesterday's federal rule overturning the state's ban on gay marriage

This was to be expected.

Politico provides detail:

Texas Attorney General Greg Abbott, a Republican running for governor, will appeal a Wednesday ruling striking down the Lone Star State’s ban on gay marriage.

In a statement, Abbott announced that same-sex marriage is “an issue that will ultimately be resolved by a higher court. Texas will begin that process by appealing today’s ruling to the Fifth Circuit.”

“The U.S. Supreme Court has ruled over and over again that states have the authority to define and regulate marriage,” said Abbott, who is set to face off with Democratic state Sen. Wendy Davis in the deep-red state. “The Texas Constitution defines marriage as between one man and one woman. If the Fifth Circuit honors those precedents, then today’s decision should be overturned and the Texas Constitution will be upheld.”

His comments came after a ruling earlier in the day from a federal judge in Austin.

“This is an issue on which there are good, well-meaning people on both sides,” Abbott said.

The last remarks seems telling to me - an increasing group of Republicans seem to believe (1) that acceptance of gay marriage is growing among Republicans so they may have to prepare ground work for a switch on the issue, and (2) the courts will mandate this change anyway so it might be worth getting ahead of it. Having the court overturn Texas laws - including part of the Texas Constitution - relieves Texas of the political dirty work associated with changing it. It takes it off their hands - which simultaneously gets rid of the issue and gives them a target to blame for the change.

The Fifth Circuit Court of Appeals rehears Fisher v UT - strict scrutiny must apply

This past summer the Supreme Court sent this case back to the fifth Circuit and asked them to apply strict scrutiny to the case.

The NYT reports:

An affirmative-action program at the University of Texas at Austin that takes applicants’ race into account was unnecessary because the campus had achieved a “critical mass” of minority students, lawyers for the white applicant who sued the university told a federal appeals court here on Wednesday in a case with high stakes for the future of race-conscious admissions policies at public colleges and universities.

University lawyers denied a critical mass of underrepresented students had been reached. They said the institution was entitled to supplement its race-neutral admissions policies with ones that take race into account to achieve diversity. But the reaction of the appeals judges, who expressed skepticism at times about the manner in which the university applied race-conscious decisions and the university’s abstract definition of “critical mass,” illustrated the complex path for the Texas flagship university, as it tries to show that its admissions program was necessary.

Bert Rein, the lawyer for the white applicant, Abigail Fisher, said the university had no numerical standards to determine when its student body was sufficiently diverse. “They have no metric,” he said. “ ‘We know it when we see it.’ That’s the university’s position.”

The lawyers for Ms. Fisher, the university and minority student groups appeared before the United States Court of Appeals for the Fifth Circuit on Wednesday to sort through a tangle of new legal issues raised by the Supreme Court in June. The Supreme Court sent the case back to the Fifth Circuit, instructing it to apply a greater degree of scrutiny to the university’s race-conscious admissions program.

The decision, while generally upholding the use of race as a factor in the program, jeopardized the future of it at the same time, by instructing courts to use tougher standards and to verify that race-neutral alternatives were not available to the university.

EPA greenshouse emmission regulations upheld by appellate court

From the NYT:

A federal appeals court on Tuesday upheld a finding by the Environmental Protection Agency that heat-trapping gases from industry and vehicles endanger public health, dealing a decisive blow to companies and states that had sued to block agency rules.

. . . The judges unanimously dismissed arguments from industry that the science of global warming was not well supported and that the agency had based its judgment on unreliable studies. “This is how science works,” they wrote. “The E.P.A. is not required to reprove the existence of the atom every time it approaches a scientific question.”

In addition to upholding the E.P.A.’s so-called endangerment finding, the court let stand related rules setting limits on greenhouse gas emissions from cars and limiting emissions from stationary sources. Opponents had also challenged the agency’s timetable for enforcement and its rules singling out big polluters, but the court said the plaintiffs lacked the standing to do so.

Fourteen states, led by Virginia and Texas, had sued to block the rules. Fifteen states, including New York, California and Massachusetts, went to court to support the agency.



More from the Volokh Conspiracy.

From the NYT: Split Decision and Barbed Comments Show a Court Deeply Divided on Wiretapping

A nasty split decsision from an appelate court on how to strike a balance between security and privacy:

An appellate court decision on Wednesday revealed deep and lingering divisions among a dozen judges over the government’s wiretapping powers and the courts’ ability to regulate them.

Deadlocked by a 6-to-6 vote, the United States Court of Appeals for the Second Circuit cleared the way for a lower court to hear a challenge to the constitutionality of broadened wiretapping powers that Congress approved in 2008 at the urging of the George W. Bush administration. . . .

As significant as the decision itself were the sometimes barbed comments of the appellate judges, as they clashed over whether Amnesty International, the American Civil Liberties Union and other groups should be allowed to challenge the constitutionality of the wiretapping powers.

In an unusual turn, 5 of the 12 judges issued separate written opinions on the question of whether the plaintiffs had legal grounds to sue the government.

Judge Gerard E. Lynch, explaining why the lawsuit should move ahead, wrote that the case represented an important test of the balance between the government’s ability to detect national security threats and the plaintiffs’ claims to privacy under the Fourth Amendment.

“The Constitution sets limits on the powers even of Congress,” Judge Lynch wrote. “It is the glory of our system that even our elected leaders must defend the legality of their conduct when challenged.”

Chief Judge Dennis G. Jacobs was equally forceful in arguing that the lawsuit should not proceed. He called the suit “frivolous” and likened it to a “plaintiff’s allegation that the C.I.A. is controlling him through a radio embedded in his molar.”

In a related story, Senators in a recent hearing take the Justice Department to task on how the surveillance is beign carrid out.

Appeals Court Upholds Obama’s Health Care Law

From the NYT:

The Obama administration prevailed in the first appellate review of the 2010 health care law on Wednesday as a three-judge panel from the United States Court of Appeals for the Sixth Circuit held that it was constitutional for Congress to require that Americans obtain health insurance.

The ruling by the Cincinnati court is the first of three opinions to be delivered by separate courts of appeal that heard arguments in the health care litigation in May and June. Opinions are expected soon from panels in both the Fourth Circuit in Richmond, Va., and the Eleventh Circuit in Atlanta.

Lawyers on both sides of the case widely expect the Supreme Court to take one or more of the cases, perhaps as soon as its coming term, which starts in October. The speed of the Sixth Circuit ruling could help insure that timing.
You can read the decision here.

Here's a key part of the story:

The Sixth Circuit majority held that the mandate was “facially constitutional under the Commerce Clause” for two reasons.

“First, the provision regulates economic activity that Congress had a rational basis to believe has substantial effects on interstate commerce,” Judge Martin wrote. “In addition, Congress had a rational basis to believe that the provision was essential to its larger economic scheme reforming the interstate markets in health care and health insurance.”

The court directly addressed whether a choice to go without health insurance qualifies as an “activity” that substantially affects interstate commerce, which is the standard set in prior Supreme Court decisions on the breadth of the Commerce Clause.

“The activity of foregoing health insurance and attempting to cover the cost of health care needs by self-insuring is no less economic than the activity of purchasing an insurance plan,” the opinion stated.

The majority emphasized that the case should not hang on distinctions about whether the failure to purchase insurance should be defined as activity or inactivity, a question the Supreme Court has never considered. “The constitutionality of the minimum coverage provision cannot be resolved with a myopic focus on a malleable label,” the judges said.

In his concurrence, Judge Sutton added: “Inaction is action, sometimes for better, sometimes for worse, when it comes to financial risk.” Whether an individual buys an insurance policy or not, the judge wrote, “each requires affirmative choices; one is no less active than the other; and both affect commerce.”

Is cheerleading ( or in this case not cheerleading) protected free speech? And how do we know what is and isn't a frivolous lawsuit?

These question stem from an uncomfortable case from Silsbee that the Supreme Court refused to review.

- Raped Cheerleader Told by Courts to Go Home and Be Quiet

- Cheerleader who wouldn't root for assailant loses

- Court OKs booting of cheerleader who wouldn’t cheer for rapist

- Cheer for your attacker, or else!

Here's the decision from the 5th Circuit Court of Appeals:

- John Doe, et al v. Silsbee Indep School District

Fergus Cullen: Last week I had my day in (U.S. Supreme) Court - Saturday, Apr. 9, 2011

Fergus Cullen: Last week I had my day in (U.S. Supreme) Court - Saturday, Apr. 9, 2011

This is a fun, brief piece detailing on man's visit to a session of the Supreme Court.

The Fed's Brief Appealing Vinson's Trial Court Decision on Health Care Law

Andrew Cohen, writing in the Atlantic, details how the Justice Departments is preparing its appeal of a trial court judge's decision declaring the Affordable Health Care Act unconstitutional:

The Justice Department's latest appellate brief in the fight over the constitutionality of the Patient Protection and Affordable Care Act is no fur-and-teeth affair. The first half of the 110-page filing, made April Fool's Day at the 11th U.S. Circuit Court of Appeals, reads like a policy paper on health care as much as it does a legal filing. And the second half of the document devotes itself to politely chronicling the number of ways in which the feds believe that U.S. District Judge Roger Vinson got it all wrong in January when he declared the Act unconstitutional in its entirety.

The tone of this document is mellow; the rhetoric far afield from where the ugly political discourse has taken the matter of health care reform (that's probably so, from the White House's perspective, for both legal and political reasons). Anyone who has followed the legal story of the Affordable Care Act, through all its trial court rulings over the past six months, will recognize the major points of contention offered now. But what is striking now is how soft federal lawyers took it with Judge Vinson, the Reagan appointee sitting in senior status in Northern Florida. You can go for pages without so much as a mention of the trial judge who has so forcefully threatened to shut the whole thing down.

Are Drug Sniffing Dogs Reliable?

Maybe Not. From Reason:

For the first few years I had her, I was impressed by my late dog Harper's uncanny ability to assess people's character. She hated every crappy landlord and bad roommate. Barked at them. Snarled at them. Wouldn't go near them. But if I brought home a date I liked, Harper, a Shar Pei/Labrador mix, would curl up right next to the woman and turn on the charm. It took me several years to figure out that my dog wasn't a good judge of character; she was just good at reading me. She liked the people I liked and disliked the people who rubbed me the wrong way. For dogs descended from lines bred for protection and companionship, this talent makes sense. A dog adept at distinguishing friend from foe was likely to be kept around and bred, and one very good way to tell friend from foe is to read your master's body language.

My confusion about what was going on in Harper's head reflects a common misconception that is also apparent in the ways dogs are used in criminal investigations. When we think dogs are using their well-honed noses to sniff out drugs or criminal suspects, they may actually be displaying a more recently evolved trait: an urgent desire to please their masters, coupled with the ability to read their cues.

Several studies and tests have shown that drug-sniffing dogs, scent hounds, and even explosive-detecting dogs are not nearly as accurate as they have been portrayed in court.

Did Texas Execute an Innocent Man?

Possibly. More problematic question: Do we care?

Can a Convicted Death Row Inmate Use DNA Evidence to Prove Innocence?

Not necessarily.

In both 2301 (while we discuss civil liberties) and 2302 ( while we discuss the role of judiciary) we will wade into this question. Is it the responsibility of the appellate courts to determine innocence, or is that strictly a trial court responsibility? Does the Supreme Court do "justice" or does it simply stick to process?

FCC Ruling on Fleeting Expletives Overturned

From the New York Times:

A federal appeals court struck down a Federal Communications Commission policy on indecency Tuesday, saying that regulations barring the use of “fleeting expletives” on radio and television violated the First Amendment because they were vague and could inhibit free speech.

...

In a unanimous three-judge decision, the Court of Appeals for the Second Circuit in New York said that the F.C.C.’s current policy created “a chilling effect that goes far beyond the fleeting expletives at issue here” because it left broadcasters without a reliable guide to what the commission would find offensive.

The appeals court emphasized that it was not precluding federal regulation of broadcast standards. “We do not suggest that the F.C.C. could not create a constitutional policy,” the court said. “We hold only that the F.C.C.’s current policy fails constitutional scrutiny.”

More from ScotuBlog.

This is the latest stage of the saga of FCC v Fox, which is more about the vagueness of rules rather than speech -- as far as I can tell anyway. The FCC may be able to punish broadcasters for these outbursts, but it has to be able to clearly and non-capriciously define them. That seems to be a difficult thing to do.

- What is a fleeting expletive?