There is no good way to reform immigration policy, so let’s lay that point out right away.

Let us also agree that this law and an “open borders” policy do not mix, and anyone that is halfway reasonable should see this as a piece of codified xenophobia which clashes mightily with the federal law on the subject. It was good to see most of it get wiped out by the Supremes.

This blog is against Arizona’s SB 1070 immigration law more or less on principal.

We also believe that no one should be out there doing what John Boehner calls “spiking the football” because of the Supreme Court’s decision, but that’s what everyone is doing. And not just in a positive way.

There’s the usual band of pundits claiming that this was a victory for federalism, liberalism, conservatism, tea-party-borderline-personality-disorder-ism, etc. And then there are the people out there, despite getting their little taste of victory, that are wallowing in the feeling that the ruling wasn’t enough. Take this editorial written by Ali Noorani of the National Immigration Forum.

Ms. Noorani’s point is that this ruling is a disaster because leaving the part of the law requiring law enforcement to verify immigration status of a suspect will lead to profiling… even though racial profiling was not an issue raised by the Department of Justice.

I am going to disagree.

For what Ms. Noorani is saying to be true she presupposes that police will go arrest people in order to check their immigartion status. That’s wrong because, frankly, there was a part of the law, specifically Section 6 of SB 1070, that more or less required that the police racially profile (and allowed them to arrest people for not being white), and that part of the law was summarily eliminated by the Supreme Court. 

The part that is left over is one which requires the police or other law enforcement to check a person’s immigration status after they have been lawfully detained for another valid reason. For example, if someone is arrested after, say, a drunken bar fight, the police can call Immigration and Customs Enforcement (ICE) while the person is sleeping it off. Granted that it does not prolong this person’s time in the drunk tank then it does not actually impinge on the person’s rights to have his or her immigration status confirmed.

Illegal immigrants that are arrested for felonies will be tried, required to serve their sentence, and then deported. That exists already. So, really, Section 6 is an extension of that legal tenant. And the court is right, that section can fesibly be implemented so as to not run afoul of federal law. So where’s the tragedy?

Let’s take off the Devil’s Advocate Cap now.

The tragedy is that most people that come to the U.S. work very hard to do so, and to do it properly.

The majority of immigrants are in the U.S. legally, though, if you believe Tolerance.org, a shockingly high number are one form of illegal or another. However, again according to Tolerance, almost half of those here illegally were at one point or another totally legal. It only takes one database error or misread report for a person in the U.S. legally to be put on the humiliating path to deportation.

Moreover, there is the potential for lots of abuse of this system. While the police forces in Arizona are allegedly receiving specialized training, there is an absolute certainy that an officer somewhere will decide he can detain alleged immigrants because of the remaining section of the law, and if they resisted, they may then be subject to a “legitimate” check of their status.

Fortunately, the ACLU and various immigration advocacy groups are waiting to pounce on any abuses with a eye toward challenging the law on civil rights grounds, rather than your standard federal preemption.

So, sure, the court could have gone and totally eliminated SB 1070. To do that, though, would have required a level of activisim that is often openly fantasized about in the Fox News studios. Instead, the court stuck to the issues presented and came out with a reasonable response. It is tragic that we have gotten to a point where racist and xenophobic laws are being put back on the books (though surely some were never removed), but it is heartening to see that the Supreme Court can still see straight enough to get rid of the obvious ones, and to do it in a very reasonable way.

There are also strong indications that the rest of SB1070 could not survive a challenge rooted in a civil rights claim, rather than a federal preemption one.

The point is that, while it is unglamorous and perhaps isn’t enough, it was the right call and the law should be finished off shortly after it goes into effect for real.

So, cheer up and stop spiking that football. Besides, everyone needs to save their energy for Thursday when “Obamacare” comes up on the Supreme Court’s docket.

Mark NeJame via CNN.com

So, the previous post (done some time ago) was about the Trayvon Martin case. It contained some tweaked facts that allowed us to illustrate the failings of the stand your ground law. Today, a solid topic for discussion is an op-ed currently on CNN.com by Mark NeJame.

NeJame, you’ll all remember is the fellow that caused the original judge to recuse herself because her husband is a business partner, and NeJame is a CNN analyst who would be analyzing the judge. Mark was also asked to take Zimmerman’s case, but declined. He also looks like someone who spend 30 years on the set of Law & Order, not actually in the practice of law, but we digress. 

In his capacity as a CNN analyst NeJame spun this op-ed piece pointing to the erroneous manner in which people had been referring to the use of racial profiling by George Zimmerman. For that his article is a good one. However, despite his extensive experience some points he makes bare disagreeing with.

At its core analysis of this case hinges upon its fundamentals. For example, Zimmerman had no way of knowing anything about Martin other than the fact that he was some kid walking down the sidewalk, wearing a hooded sweatshirt, doing nothing.

So, Zimmerman actually followed someone for mostly no reason, even if he did have a legitimate concern over break-ins in the neighborhood.

Little has been made of the notion that Trayvon had a reason to be concerned for his safety prior to the altercation between Zimmerman and himself. It really is a failing of common sense. Most of us, and likely a jury, would acknowledge that it can be unsettling to have someone follow you down a sidewalk simply because they are going the same way you are.

Now imagine that you are 17, that you asked someone why they were following you and they said nothing (or maybe demanded to know why you were on that sidewalk), and that you made an effort to get away from the person by speeding up… and that they kept up with you… Maybe even attacked you… (not tweaking that fact, just going from what his girlfriend heard.)

(A decent synopsis of the facts is here, though it has also been said that Martin went into a backyard and Zimmerman followed him.)

The bottom line here is that despite NeJame’s well made points and fabulous hair, you have someone that did something to instigate a fight by causing someone else to feel unsafe, that someone looked young, when it turned into an altercation the pursuer did not try to flee, and ultimately shot and killed the young person who turned out to be a minor.

That’s like an essay question on the bar exam. When you try to issue spot that fact pattern you’ll come up with the likely charge of murder against Zimmerman, the possibility of self-defense which is likely mitigated by Zimmerman’s pursuit, assault and battery carried out by Trayvon, and his preemptive self-defense against Zimmerman.

So, when NeJame says he doesn’t see where there’s a case if you can’t prove Zimmerman’s a racist, we say that that is certainly true for hate crime charges, not so true for the murder charge.

The bottom line is, that Zimmerman could plead to a reduced charge and spend not so much time away, be convicted and end up with a similar fate, or walk free and clear. That much is uncertain, but it is clear that the prosecution has a leg to stand on regardless of the race issue.

Hopefully, the ultimate fallout from this whole mess is that Florida and other states think twice about enacting legislation written by lobbyists, and that at some point gun control can become a reality, because NeJame is right about one other thing: if Zimmerman didn’t have a gun to rely on, he probably wouldn’t have followed Trayvon, which means that the kid would still be alive.

A little while ago we broached the topic of self/home defense with one of our Everyday Legal Terms posts. In that post, we discussed how the Castle Doctrine may or may not require you to try to escape a potentially life-threatening situation before you can use deadly force. We also got a little bit into how you need to be afraid that death was the imminent result of a break in.

In Florida and select other states, there is a similar rule for self-defense overall. It is called the “Stand Your Ground” rule. This law makes it so that a person does not need to flee from an altercation in order to claim self-defense.

In some cases, it makes total sense that such a law would exist. If you are cornered in a bar and a fight breaks out, punching someone may be the only way to create a means of egress. However, the law creates a lot of ambiguity as to when someone defended his or her self, versus becoming the aggressor.

Stand Your Ground became an issue recently in the shooting death of Trayvon Martin, a teenager from the Orlando area that was shot by a member of the neighborhood watch one rainy afternoon. At the time, Martin was walking to his father’s girlfriend’s house, where he was apparently staying, when he was spotted by George Zimmerman.

Zimmerman was patrolling the neighborhood in his car with his licensed 9mm by his side. At one point he spotted Martin and almost immediately called 911. After speaking with a 911 operator, and being advised to wait for the police Zimmerman decided to pursue Martin on foot.

Just before he got out of the car, Martin became aware that he was being watched, and seemed irritated by that. He was going to see what the issue was when Zimmerman got out of the car, 9mm aimed at Martin.

Martin ran.

Zimmerman chased him.

The chase ended when Zimmerman shot Martin dead in a backyard. Neighbors were aware of the pursuit, and someone yelling for help, or more like terrified screams for help. Neighbors called 911 as well. There are screams for help, a gun shot, and then nothing.

(Some of the facts have been dramatized a little to make a point, we’ll get there in a second.)

People are outraged by a failing by the police to determine whether to charge Zimmerman with murder, or whether Stand Your Ground would apply. They are apparently confused because of the lack of witnesses, but based on the statutes and common sense alone, this should not be that hard to figure out.

Stand Your Ground is based on two statutes, Title XLVI, Chapter 776.012 and 776.013. One is for general self-defense, and the other is for home defense (Florida’s Castle Doctrine). 776.012 is immediately relevant in part:

…a person is justified in the use of deadly force and does not have a duty to retreat if:

(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony…

So, in other words, Zimmerman was entitled to defend himself if he was being attacked, or if Martin was going to rob, assault, stab, etc. Zimmerman or someone else. Zimmerman could also use force, even deadly force, if Martin was breaking into someone’s home and doing select other acts enumerated in the statues.

So far it’s pretty clear, if Zimmerman was attacked, at a minimum, he could at least hit back.

The outrageous part is, that given the reported facts, Zimmerman was never actually in a position where he needed to defend himself, and Martin was never committing a crime. He was, in fact, walking down the street in a gated neighborhood into which he was invited.

Zimmerman chased him with a gun.

Chased him with a gun.

The only time Zimmerman may have been on the defensive was after he seemed to corner Martin. At that point Martin may have felt the need to attack the man who was chasing him with a deadly weapon for apparently no reason. In that scenario, Zimmerman is still the aggressor, and is not defending himself.

But forget all of that for a minute.

Imagine that Zimmerman put his gun away while he was running and/or never took it out. He chases Martin yelling after him something like, “Hey kid, I just want to talk to you!” He gets to the point where he corners Martin. The kid is still unarmed but ready to fight the guys that was chasing him. Maybe punches are exchanged. Maybe not.

Then at some point Zimmerman’s gun comes out. Then he shoots Martin.

It is taught in first year criminal law that self-defense is abrogated when a person unreasonably escalates an even fight. So, if you are, say, jumped by someone who is unarmed, you can defend yourself with your fists. If you are in fear for your life, you can grab a weapon to try to thwart the attack.

However, if you pull out a weapon, especially a gun, prior to being hit you are not defending yourself.

Not at all.

Where the police and the state prosecutors are having a hard time is with the lack of witnesses. No one saw exactly what happened and everything is circumstantial.

Circumstantial evidence is definitely admissible, and even murder cases can be solely based on that. But, because the Florida legislature wanted to make gun advocates happy, Stand Your Ground is an immunity and not a defense.

The difference between the two is the key.

If it was a defense the prosecutors could make a case, and the jury would probably convict Zimmerman for killing an unarmed teenager.

However, since it is an immunity, the prosecutors are not even allowed to bring Zimmerman to trial. He is immune from prosecution. While he needs to prove that he was in fear for his life, the burden of proof is increditbly low, not anywhere close to “beyond a reasonable doubt,” which makes it possible for his word, plus some garbled 911 tapes to support his immunity from prosecution.

If there had been even one witness to the events Zimmerman would be in a lockup right now. Until that happens, and despite the fact that he chased down and shot someone who was for all intents and purposes his neighbor, he will be immune from prosecution.

As a final note, outcry from this even has been so bad that the FBI has decided to get involved. Following the events as they were reported really makes it seem that there wasn’t ever a situation where Zimmerman was required to defend himself, and it seems that the Sanford, FL police, the force in charge of investigating the shooting, balked at the immunity claim and barely tried. Perhaps we will hear something different from the feds in a few weeks.

Hopefully Florida’s legislature rethinks the immunity part of Stand Your Ground.

And here it is. The first time two wholly internet based (social) media companies go head to head in litigation… Kind of.

There are many industries and subsets of industries that exist out in the world. One of the newest is social media having seen its development in earnest within the last decade or so. Given its relatively short life, we have yet to see any real game changing litigation between any social media companies.

However, on Monday Yahoo! took a step toward starting exactly that when it filed a lawsuit against Facebook for infringing ten of its patents.

Facebook apparently had yet to receive process by the time the news broke and learned of it the same way everyone else did. They called the suit “puzzling.” Which, of course is about what you would expect from a company that was founded on a little bit of treachery like Facebook was.

Actually, the two media companies had been discussing resolving their differences via a licensing agreement not so long before this. Talks recently broke down between the two, and as is more or less standard practice, a lawsuit followed. Not very puzzling at all.

Even less puzzling is the fact that this kind of thing happens all the time in other industries. A great example is the pharmaceutical industry where there are a few small companies and several mega corporations that are all striving to invent the cure for the common cold and then patent it before anyone else can. When the patent is secured it means that companies can no longer produce that product without the permission of the patent holder, and of course without paying a hefty sum. When these companies try to create substantially similar products without licensing the original, they usually get sued (see Viagra, Cialis, etc.).

These lawsuits typically suck most of the industry in, and they are a fact of life for companies that create novel, but easily reproduced products.

While Yahoo! has been floundering a bit as a company with more or less flat revenue, they have been very productive during their existence procuring over 3,300 patents for various internet processes. They, much like Al Gore, have truly helped build the internet. Because of that production, much of it concerning methods for generating internet ad revenue, a great number of companies have had to license Yahoo!’s patents, including Google.

In fact, back in 2004, Yahoo! pulled almost this exact same move against Google when it was preparing to go public, ultimately resulting in $201 million in cash coming back to Yahoo!.

Of course, this is a proverbial monkey wrench in Facebook’s IPO plans. As such it represents a significant point of leverage that Yahoo! has in wrenching a settlement out of Facebook which is why this is perhaps a sort of all-consuming knockdown drag out type of thing.

Given that 1,000 or so millionaires, including your average Facebook employee, there will be significant internal pressure to avoid a protracted legal battle between the two media companies.

This is most interesting because there has yet to be any really game changing litigation this industry and when it happens, it could really change the way things look and feel across the internet. Facebook, Yahoo!, Google, Zynga, and many others could end up parties to this suit, as this not only concerns what are probably widely used patents, but also perhaps sly attempts to get in on Facebook’s IPO money.

That is certainly a reason for Yahoo!’s timing here as they know that Facebook will be able to foot the bill for a settlement, and Yahoo! very well could grab some equity in Facebook like they did in Google.

The move can also be considered an aggressive first real move from their new CEO who took over in January. Given the pressure he is under to make Yahoo! a player again, we may actually see a solid throw down.

We’ll keep our eyes peeled for the result of this suit. We have certainly harped on things like SOPA and Protect IP enough, but corporate litigation is also a way to see unwanted changes to the internet.

At the end of this suit, we could see something like: “The Internet, Brought To You By Yahoo!” ads everywhere.

Enough said.

This post is not about abortion. It is not about whether using birth control is right. It is not about the fact that God would prefer that your seed land in the belly of a Snooki,  Paris (or Nikki) Hilton, or Kardashian sister than fall on the ground (or in a tissue). It has nothing to do with your religious beliefs being right or wrong.

But it has everything to do with it being unbelievably backwards, stupid, and unconscionable for politicians to want to deny all citizens of the United States, not just women, the right to use contraception in return for votes.

Something we take for granted these days is the availability of condoms and “the pill.” We are able to do so because back in 1965 the case of Griswold v. Connecticut, a challenge to a Connecticut statute outlawing the provision of birth control of any kind including condoms to even married couples, struck down such a prohibition, seemingly for good. Recently, however, the questions considered by Griswold have come back in two somewhat related ways.

First, the would-be Republican presidential candidates have spent a great deal of time bashing contraception and suggesting that it be banned, likely to appease what their polling shows as a field of religiously motivated voters.

The second way, in lock step with the election motivated speech, and as a demonstration that they care to those that are complaining about “Obama Care” forcing them to cover anti-baby pills, House Republicans recently introduced the Blunt Amendment. The amendment is an attempt to backdoor a change to the Affordable Care Act (Obama Care), which would allow companies that provide insurance plans to employees, and insurance companies that underwrite those plans, to avoid providing coverage for contraceptives if they have a moral or religious object to it.

That, in a word, is crazy.

Leave out for a moment the impact this would have on a significant number of people: the unplanned pregnancies, the increased likelihood of breast cancer, the likely spike in HIV if we include the proposed elimination of all contraceptives (like condoms), the increase in abortions despite the borderline abusive laws being put into effect, and increase in teen pregnancies despite the majority of adults/parents okaying birth control for teens in school, etc. An exception like this becomes an enormous loophole for insurance companies and employers.

Most, if not all, of these companies will be able to find enough religiously affiliated people of one denomination or another within their employees and/or management to make the case that they do not support the use of contraceptives. And by the way, religious organizations would have been exempt from the requirement. When you consider that something like 98% of Catholic women use birth control, 70 percent have used the pill or IUDs, this amendment to the Affordable Care Act could feasibly end coverage of contraceptives for everyone, effectively pricing a great deal of women out of their use.

While it is great that the GOP can provide a cost savings to some insurance companies, as well as allowing their executives to get right with God, the talk of eliminating birth control in addition to the attempt to eliminate coverage for it would probably do nothing for anyone. Consider that once the resulting children are born, they and their expenses will have to be covered by the insurance companies.

Aside from that bit of goodness, what the Republican candidates have been discussing has already been deemed offensive to the Constitution.

The Connecticut statute in Griswold also provided for a prison term of 60 days to one year in prison for prescribing, “…any drug, medicinal article or instrument for the purpose of preventing conception…” Looking back at it from 2012, it seems unfathomable that such a law ever existed, let alone that it is being contemplated again.

The Supreme Court looked at the appeal of the doctors arrested for providing birth control and decided that the law was unconstitutional. They did it for good reason, and frankly, they did it for reasons that the candidates should celebrate and agree with; specifically, because:

…a law cannot stand in light of the familiar principle, so often applied by this Court, that a

 ’governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.’ [Griswold citing NAACP v. Alabama]

In other words, a law cannot be created, or allowed to stand, that expands governmental interference into the home or governing what people do “behind closed doors.” It creates a governmental power that could eventually, and did at one time, allow people to be jailed for wanting to have safe sex and not always have a child be the end result.

As the Supremes note, there is a special relationship between husband and wife (or husband and husband or wife and wife these days) which lies under the penumbra of the Bill of Rights. The attempts to eliminate coverage for birth control are measures that would have “a maximum destructive impact upon that relationship.” [Griswold]

So, this idea of eliminating contraception could be harmful to the institution of marriage and put the government into the home in a way that Republicans usually virulently oppose. And, of course, even if that amendment to the Affordable Care Act had been passed, it could have been struck down as an attempt to abrogate the reproductive rights enumerated in Griswold.

These rights exist for The People to use or not use as they see fit. There are certainly groups that can demonstrate that they have a religious gripe with providing birth control, but is not an excuse to take an action that is a combination of religiously motivated and injurious to a well settled right. While the GOP’s objections center around the idea that companies being required to provide coverage for birth control inhibits free practice of religion, that is demonstrably untrue.

No one is being required to use contraception. If companies are religious in nature they are exempt from providing coverage. Also, while corporations have been (erroneously) recognized as having rights, free practice of religion isn’t one of them, unless the company identifies itself as strictly religious.

The practice of religion, including not using birth control, is not being inhibited. People can still choose to use contraception or not. Really, the whole debate about mandatory coverage for birth control really boils down to a distraction from the most important thing in this election cycle.

Shouldn't it be one gun per month?

Despite a few rulings and opinions saying that it might be prudent for Congress and state legislatures to regulate things like gun ownership, and even okaying limitations being placed on free speech, people almost always have a virulent negative reaction when they feel the Bill of Rights is being limited in any way.

Especially the Second Amendment.

Such was the case with the “One Gun a Month” or “Handgun-a-Month” Law that was recently repealed in Virginia.

The law was targeted at limiting “straw man” gun sales coming out of Virginia, which remains a state that produces high levels of illegal gun sales and trafficking to other states. The idea was that a person who could pass a background check would buy multiple guns, and then sell those guns to criminals. Those person to person sales are legal and background checks are not required, so this certainly presents a problem. The “One Gun a Month” Law was meant to limit the mass sales by, you guessed it, limiting purchases to one per month.

Now it seems like at least an okay idea to stop that specific problem, but in the 20 or so years it existed no one ever checked to see if it actually worked, and eventually Virginians got tired of it, so it was repealed. Thus, mass gun buys are legal once again in Virginia.

If you look at the comment section on WTVR.com‘s article about the law you see many people saying good riddance and that it violated the Second Amendment anyway. (lol) Many people there, and in the gun debate in general, pointed to home defense as a reason to never limit gun sales. Ever.

It’s a nice idea and it certainly seems valid, so let’s talk about it, and how the home defense thing actually works.

Your Everyday Legal Term is: the Castle Doctrine.

This is the legal concept that allows you to use deadly force, i.e. a gun, knife, etc. to defend your home. The essence of the rule is that a man’s (or woman’s) home is his castle and he should be allowed to defend it and those within its walls. However, this rule is actually pretty limited in its practical application.

To be blunt, the biggest misconception here is the notion that you can shoot anyone that trespasses on your property. There is a multitude of reasons why that doesn’t work, one being that suburban America isn’t the Wild West of yore. So, take it from us, that is not a real thing.

So what is the actually rule?

Since the phrase “Castle Doctrine” is colloquial (and codified) it isn’t in our law dictionary, so we will let the Supreme Court of Appeals of West Virginia define it for us:

The law regarding self-defense is often deceptively and simply stated: that a defendant who is not the aggressor and has reasonable grounds to believe, and actually does believe, that he is in imminent danger of death or serious bodily harm from which he could save himself only by using deadly force against his assailant has the right to employ deadly force in order to defend himself. [myweb.wvnet.edu]

In other words, you must believe that an intruder means to kill or maim you or anyone else in your house before you can take action. But, there’s more.

You cannot provoke an intruder into attacking you. Perhaps that sounds foolish, but if someone breaks into your house and is clearly only there to steal your TV, you cannot and should not corner this person or try to hold them at gun (or knife, bat, lamp, etc.) point. This kind of act makes you the aggressor, and may put the burglar into a position where he or she would be justified in defending his or her self against you, and if you killed that person you could be facing a murder charge. So, you can only really be on the defensive.

However, you may, and sometimes you must, announce to the intruder that you will defend yourself at all costs.

There is also the question of whether you have a duty to try to escape.

This is based strictly on state law, and about half of the states require some kind of attempt to flee from harm before you can use deadly force. The other half require only what the West Virginia Supreme Court of Appeals does, so if you are heart set on being able to injure an intruder, take a quiet moment and look up what your state requires.

Remember, your best option when you are subject to a home invasion is to get somewhere safe and call the police. If you do not have that option, then your next best option is to try to hurt an assailant enough that it will let you get away.

To all the “home defense” gun owners out there, make sure to continue to comply with any and all gun license requirements, and do not under any circumstances become aggressive unless it is strictly necessary. If you go beyond defending yourself and your family/guests you could end up in big trouble because, in the end, while you might have the right to own a gun, you need to understand that 99.999% of the time you do not have the right to point it at someone, even if they are walking out of your house with your TV.

Here they come. They are full of very passionate people with very passionate wallets who don’t even notice that they are suddenly out $14 million.

Likely by now we have all heard of them. They are a scourge of the legal world.

Political commentators speak of them with a good deal of contempt and even a great deal of lawyers think that they are ridiculous.

That’s right. We’re talking about SuperPACs.

These companies have existed in one form or another for longer than you would think, but have only come to prominence since the Supreme Court’s 2010 decision in Citizens United v. Federal Election Committee.

In that case, a company, Citizens United, wanted to produce a movie aimed at taking Hillary Clinton down a peg or two, Michael Moore style, and advertise it far and wide prior to the primary elections eventually won by Barack Obama.

Alas, Citizens United and DirectTV sought to make the movie available on-demand within 30 days of the Democratic Primaries which was illegal because Citizens United is a company, which was prohibited from producing ads attacking any specific candidate within 30 days of a primary, and 60 days of the general election. In order to profit right this wrong, Citizens United sued the Federal Election Committee.

Their main claim was that Hillary: The Movie, their film, was analogous to Farenheit 9/11 as a fact based documentary and not “electioneering.”

The D.C. District Court found the film to be a 90 minute attack ad against Hillary Clinton and was clearly electioneering. That inspired the appeals that brought the case to the Supremes.

And the rest, as they say, is history.

Super Political Action Committees (PAC[s]) can take in tremendous sums of money now and advertise at will for a specific candidate. TheCitizens United case has made these companies a convenient corporations and wealthy individuals to avoid campaign donation limitations and disclosure rules, the maximum donation being $2,500 which includes being listed publicly as a donor.

This all comes up now because of a recent article in the New York Times detailing how “superdonors” are spending their money.

Now, make no mistake, it is a bit premature to mark this as the way things will shape up in the end, but the Republican candidates for the 2012 election have been getting a head start on fund raising, and these super donors are leading the charge.

Who are these donors and how much have they contributed?

Glad you asked.

The Times didn’t put out the entire list, however, they did detail a few (about two dozen) that really show how absurd this is going to get.

For example, Sheldon Adelson, number 8 on the Forbes 400, has donated over a million dollars, likely to Newt Gingrich; Mitt Romney has garnered around a million from Paul B. Edgerley, his friend and former boss at Bain Capital; and David and Charles Koch ($25 billion each) are broad range supporters, also have donated over a million thus far, and spent $45 million of their money and donated funds on the last mid-term election cycle alone, and seem to coordinate some of the richest donors; quoth the Times:

Several [superdonors] attend the exclusive, secretive gatherings of wealthy conservative donors hosted twice a year by the billionaire Koch brothers. [NYT]

Thus far, however, the largest most obscene donor has been Harold C. Simmons, number 33 on Forbes’ list of the 400 wealthiest individuals in America.

Simmons, thus far, has donated a combined $14 million to various Republican candidates, through their supporting PACs, with more certainly on its way.

It is scary to see the logical progression coming from this.

Assuming that the Democrats catch up in the donation and PAC department that leaves the majority of the influence over the people who are supposed to represent the will of the people to about 50 wealthy individuals and companies (though we should assume it’ll be a little more as we get closer to the general election).

That is ridiculous and terrifying.

We as a people shouldn’t want the principles of Bain Capital, The Koch Company, Valhi, Inc., etc. having even more power to influence politics than they do already. That leads to them suggesting things to their favorite politicians that will interfere with our everyday lives, such as Simmons recent initiative in the Texas House of Representatives to pass a bill allowing,

Simmons’ Waste Control Specialists to import low level radioactive waste from other states and dispose of the material at their facility in Andrews County, Texas. [Forbes]

In summary, the Supreme Court took the legal fiction that tries to make sense of corporate rights though personification way too far. In Providence Bank v. Billings, 29 U.S. 514 (1830), Chief Justice Marshall said that, “The great object of an incorporation is to bestow the character and properties of individuality on a collective and changing body of men.” However, we believe that has been greatly taken out of context.

People are flesh and blood. They do not act by committee. They taste, smell, touch, see, hear, and feel. They make and break associations. They talk. They interact. And the rights that they have within the Constitution are derived from that.

Companies, on the other hand, have more in common with well-trained pet. They act as their individuals decide. They can do tricks. They can even “speak” if they are told to. And we personify them because that is how we relate to them. But, make no mistake, just like pets, corporations are property.

We have given our pets some basic rights, but at the end of the day, Fluffy doesn’t have a “voice” or a vote, and neither should Bain Capital, Bank of America, Microsoft, Google, American Express, or Domino’s Pizza.

Hopefully this will be settled sometime in the future and we can all have a good laugh the next time he goes to the Iowa State Fair and declares that “corporations are people”.

For 2012, however, we’ll have to sit back and watch the carnage as the Superdonors and their pets run amok over the general election.

We welcome your thoughts on the superdonors and Citizens United case.

It has been pointed out recently, that the major banks that are administering several states’ unemployment programs have been charging people receiving those benefits numerous, and (shocker) poorly disclosed, fees for the use of a debit card. We touched on this topic a little while ago in a post about the misconceptions surrounding TANF and other welfare programs, but it is absolutely worth revisiting.

You can find a news story from Rhode Island here that gives more detail about how the system works, but the long and the short of it is that the states find it cheaper to dole out unemployment benefits via a deposit into an account attached to a debit card than they do to send paper checks, and the accounts and debit cards are serviced by major banks.

If you pay close attention to state-level politics, you may have heard a state legislator selling this to his constituents as a cheap way to administer the state’s unemployment program. Cheap, because the banks doing this tend to do it for free. They do it for free because the states allow them to charge numerous fees that your average consumer is not subject to.

Here is an example of what the fees are in Michigan, including a fee that occurs every time a recipient checks his or her account balance, and a fee for ever making a withdrawal from a teller.

It is understandable that the states would want to find the cheapest possible way to run an unemployment program. After all, state budgets have finite amounts of money to cover all of the programs that states need to run.

That being said, sacrificing people who are receiving unemployment benefits to banks like JPMorgan Chase or Bank of America is an unconscionable act.

Just like allowing banks to charge welfare recipients overdraft fees, allowing banks to charge fees for every single transaction that an unemployed person might make allows banks to load up on government money while almost totally defeating the purpose of social assistance programs.

What is the point of giving people money to help them make ends meet when they are losing it just because they have it in a bank?

And, why was a bank retained by Rhode Island to administer their program when it does not have a single branch or “in-network” ATM in the state, and knowing that, why were they allowed to charge fees for using “out of network” ATMs?

Fortunately, in response to some outrage over the Chase’s fee structure Rhode Island legislators are looking into having local banks to administer the program and some other altrnatives. The end result, however, should be a flat fee paid by the state. Even if that were to cut into benefits a little, it would be more transparent and would not affect out of work people who tend to spend more, like parents with multiple children.

So the question remains, is it fair for banks to charge these fees? We say no, because this system hurts unemployed people who tend to need it more. However, no one said that the banks had to provide the service for free.

What do you readers think?

This is how people should let the law work, but it is never that easy, is it?

“The 9th Circuit’s decision is completely out of step with every other federal appellate and Supreme Court decision in American history on the subject of marriage, but it really doesn’t come as a surprise, given the history of the 9th Circuit, which is often overturned.”  [Via Huffington Post]

 

John Goodman and his daughter Heather Hutchins

The thought of somehow making your girlfriend into your “daughter” is a little bit creepy. Even more so when you are a mere six years older than her.

However, that is exactly what happened when the awesomely named, albeit scummy, John Goodman, 48, adopted his longtime partner Heather Hutchins, 42. Critics of the move say that this is a ruse intended to protect Goodman’s assets, while Goodman himself says that he only seeks to ensure that his children, both still minors, remain protected.

Both are true. Goodman is clearly trying to protect his children by making sure that his money is unreachable by creditors and kept safe should he become unavailable to care for the kids.

Which leads to the question, how did this actually come up in the first place? And, why is Goodman a scum bag?

Glad you asked.

You see, John Goodman was involved in a hit and run accident while he was highly intoxicated. This accident caused the death of Scott Patrick Wilson, 23.

Scott Wilson’s family is currently suing Goodman for the wrongful death of their child. This type of suit, especially when it is brought against someone wealthy, usually yields large awards because the jury wants to provide a sense of justice and vindication to the bereaved, and rightfully so. In this instance Goodman’s actions caused the death of someone who had yet to have a chance at life, the least he can give up in return is some money.

Goodman is also facing an upcoming trial on the charges of Vehicular Homicide, DUI Manslaughter (a lesser included offense), and leaving the scene of a crime. That puts Goodman at risk of spending the next 30 or so years in prison.

He would be quite unavailable to his children, and quite unable to enjoy his money (though he would be able to buy lots of cigaretts and junk food at the commissary).

It is no wonder, then that he would want to safeguard his children’s future.

The adoption comes into play because John Goodman had setup a trust for his kids. However, given the way some trusts work, his children would need to have reached the age of majority (18 years old) in order for the trust to vest and become irrevocable.

At its most basic, a trust needs three things in order to protect money or property: 1) A trustee, 2) beneficiaries, 3) funding. The trustee is the person that controls the trust, and no doubt that the trustee is Goodman. The beneficiaries are his kids. The funding part is obvious, it’s the money.

Why wasn’t all of that good enough?

Because, as I said before, sometimes children need to reach the age of majority. This is because trust documents are usually written in a way that provides for the death of a child or the inclusion of an accidental child or something of the sort.

In other words, the trust is written so as not to acknowledge that the children exist until they are a certain age. Then, as each child passes that age they become entitled to their share of the trust.

Thus, this is a gambit to ensure that the trust becomes active, thereby shielding Goodman’s assets from the Wilson family.

As of now this move is legal, but it is going to be challenged by the Wilson’s attorneys as against the legislature’s intent in creative the adoption laws.

As a lawyer it is hard to find fault with the legal side of this. You do what you must to defend your client and his or her interests. Here, Goodman’s lawyers took a creative approach to that, though it does seem that the move will eventually be undone. On a. Personal level, though, we can say that just because Goodman’s lawyers could do that, they probably shouldn’t.

The Wilson family is entitled to a little shred of justice for their loss. Granted that Goodman is convicted or accepts a plea bargain he will be spending a decent amount of time away, and hopefully that will provide some solace. And given the look of things, John Goodman was a very wealthy man, and he has enough to pay what will likely be a steep judgment against him and ensure that his children have a good future.