Dominatio Per Malum

New York Times

The questions before the judges in Courtroom No. 1 of Britain’s Supreme Court were as ancient and as complex as Judaism itself.

Who is a Jew? And who gets to decide?

On the surface, the court was considering a straightforward challenge to the admissions policy of a Jewish high school in London. But the case, in which arguments concluded Oct. 30, has potential repercussions for thousands of other parochial schools across Britain. And in addressing issues at the heart of Jewish identity, it has exposed bitter divisions in Britain’s community of 300,000 or so Jews, pitting members of various Jewish denominations against one another.

“This is potentially the biggest case in the British Jewish community’s modern history,” said Stephen Pollard, editor of the Jewish Chronicle newspaper here. “It speaks directly to the right of the state to intervene in how a religion operates.”

The case began when a 12-year-old boy, an observant Jew whose father is Jewish and whose mother is a Jewish convert, applied to the school, JFS. Founded in 1732 as the Jews’ Free School, it is a centerpiece of North London’s Jewish community. It has around 1,900 students, but it gets far more applicants than it accepts.

Britain has nearly 7,000 publicly financed religious schools, representing Judaism as well as the Church of England, Catholicism and Islam, among others. Under a 2006 law, the schools can in busy years give preference to applicants within their own faiths, using criteria laid down by a designated religious authority.

By many standards, the JFS applicant, identified in court papers as “M,” is Jewish. But not in the eyes of the school, which defines Judaism under the Orthodox definition set out by Jonathan Sacks, chief rabbi of the United Hebrew Congregations of the Commonwealth. Because M’s mother converted in a progressive, not an Orthodox, synagogue, the school said, she was not a Jew — nor was her son. It turned down his application.

That would have been the end of it. But M’s family sued, saying that the school had discriminated against him. They lost, but the ruling was overturned by the Court of Appeal this summer.

In an explosive decision, the court concluded that basing school admissions on a classic test of Judaism — whether one’s mother is Jewish — was by definition discriminatory. Whether the rationale was “benign or malignant, theological or supremacist,” the court wrote, “makes it no less and no more unlawful.”

The case rested on whether the school’s test of Jewishness was based on religion, which would be legal, or on race or ethnicity, which would not. The court ruled that it was an ethnic test because it concerned the status of M’s mother rather than whether M considered himself Jewish and practiced Judaism.

New York Times Editorial

The First Amendment protects even disturbing speech, a point the Supreme Court should keep in mind on Tuesday when it hears arguments in the case of a man convicted of selling videos of dogfighting and other animal cruelty. A federal appeals court reversed his conviction, ruling that the federal law under which he was prosecuted is unconstitutional. The Supreme Court should uphold that well-reasoned decision. Robert Stevens, who ran a business called “Dogs of Velvet and Steel,” sold videos of pit bulls engaging in dogfights and attacking other animals. He did not participate in the attacks personally, but he was charged under a federal law that makes it illegal to sell depictions of acts of animal cruelty that are themselves illegal in the state where the depiction is sold.

The NY Times editorial argues that, despite the ethical problems of videos depicting animal cruelty, it should nevertheless be legal as a form of freedom of expression. It argues that like other forms of speech which are vile, such as racism, these animal cruelty videos should nevertheless be a legitimate form of expression. This is one of those times that I am going to disagree with the NYT editorial. I believe that freedom of speech should offer no protection for videos which clearly depict animal cruelty for exploitation. There are clear barriers when it comes to freedom of speech. Child pornography or films depicting people being killed, for example would qualify as clear examples where freedom of speech cannot be used as a protective shield. Whilst animal cruelty seems to belong to that grey area, I think that it should be clear that such videos should not be tolerated. Naturally this will create some difficult grey areas. For example, if Discovery Channel were to show a video of a Lion mauling its prey, would that count as animal cruelty? Or if some animals were killed in the production of a film, would that suffice? That is the dangers of outright banning such videos and there may well be a grey area involved. However, there are clear-cut videos of animal cruelty and in the obvious cases, we should have no qualms about taking a strong stance against it.

Roman Polanski raped a child.

Kate Harding starts her article with this important and powerful reminder of what Polanski has done. It is an impassioned and lucidly argued piece on why no one should be above the law, not least Polanski. Rape is rape. There is no issue of consent, because the child’s age makes it statutory rape. In any case, consent had not been given.

But Polanski has his supporters. Patrick Goldstein asks if “at a time when California is shredding the safety net that protects the poor and the unemployed, not to mention the budget of the public school system, you’d hope that L.A. County prosecutors had better things to do than cause an international furor by hounding a film director for a 32-year-old sex crime, especially one that Polanski’s victim wants to put behind her.” In so doing he evokes a most compelling allegory, describing Polanski as a modern day Jean Valjean from the classic “Les Miserables” by Victor Hugo about an ex-convict trying desperately to be a good man but perpetually haunted by tenacious constable. I am not entirely convinced by the Les Mis analogy, not least because Valjean’s crimes were far less disturbing than Polanski’s.

Still, Polanski’s capture has triggered much debate, with the NYT’s Room For Debate Post highlighting the different perspectives. Now, just as there is no doubt as to Polanski’s guilt, let it be said too that there is also no doubt as to Polanski’s brilliance. The Pianist(2002), his powerful, wrenching tale for which Polanski a won Best Director Oscar is a testament to his craft. My personal favourite however, is his “Death and the Maiden” which is one of the most brilliant psychological thrillers i have ever had the chance to watch.

But should brilliance, however great absolve one of wrongdoing? And what of judicial misconduct? Should the fact that the then trial judge intended not to honor the plea bargain reached between Polanski and the Prosecutor be a redeeming factor? And should the victim’s subsequent forgiveness count for anything?

Having recently watched Michael Sandel’s thought provoking classes on ethics in http://justiceharvard.org/, this episode actually pits two competing school of thoughts, that of Consequentialism, which derives its ideas from utilitarianism. The idea is to look at the welfare of society as a whole and decide if it is beneficial. As Robert Harris, someone who does know Polanski questions in this NYT editorial questions:

“He is no threat to the public. The original judicial procedure was undeniably murky. So cui bono, as the Romans used to say — who benefits?”

In short, what is the point of jailing an old man for a crime committed 30 plus years ago when that man can better contribute to society as a director?

In contrast a Deontological approach takes a view that the ends do not justify the means. Again, back to Kate Harding who reminds us that:

“It works on behalf of the people, in fact — the people whose laws in every state make it clear that both child rape and fleeing prosecution are serious crimes. The point is not to keep 76-year-old Polanski off the streets or help his victim feel safe. The point is that drugging and raping a child, then leaving the country before you can be sentenced for it, is behavior our society should not — and at least in theory, does not — tolerate, no matter how famous, wealthy or well-connected you are, no matter how old you were when you finally got caught, no matter what your victim says about it now, no matter how mature she looked at 13, no matter how pushy her mother was, and no matter how many really swell movies you’ve made.”

And so, we are back to a grey area where whether Polanski should be extradited depends really on whether you follow a consequential reasoning or a deontological reasoning. For my part, i do believe that Polanski should be punished for his crimes, but the fact that there was judicial misconduct in the proceedings and the time lag should thereby entitle him to significant reduction in sentence because it is a strong mitigating factor. The victim’s forgiveness is a relevant point to be taken into consideration.

The reason why i believe that judicial misconduct and the failures of due process should either entitle a guilty accused to be acquitted or have his sentence discounted is because the rule of law is itself dependant on the justice system following the rules which it has set. Because of the seriousness of Polanski’s crime, it would be unwise to give a full acquittal, but the lack of due process should entitle him to a discount in sentence. As Justice Louis Brandeis opines in one of the most famous dissents in OLMSTEAD v. U.S., 277 U.S. 438 (1928) :

“Will this court, by sustaining the judgment below, sanction such conduct on the part of the executive? The governing principle has long been settled. It is that a court will not redress a wrong when he who invokes its aid has unclean hands. 16 The maxim of unclean hands comes [277 U.S. 438, 484] from courts of equity. 17 But the principle prevails also in courts of law. Its common application is in civil actions between private parties. Where the government is the actor, the reasons for applying it are even more persuasive. Where the remedies invoked are those of the criminal law, the reasons are compelling.

…

Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means-to declare that the government may commit crimes in order to secure the conviction of a private criminal-would bring terrible retribution. Against that pernicious doctrine this court should resolutely set its face. “

New York Times

There is a long and remarkable article in the current New Yorker about a man who was executed in Texas in 2004 for deliberately setting a fire that killed his three small children. Rigorous scientific analysis has since shown that there was no evidence that the fire in a one-story, wood frame house in Corsicana was the result of arson, as the authorities had alleged.

In other words, it was an accident. No crime had occurred.

Cameron Todd Willingham, who refused to accept a guilty plea that would have spared his life, and who insisted until his last painful breath that he was innocent, had in fact been telling the truth all along.

US judge ‘ignored death row plea’

A judge in Texas has gone on trial accused of refusing to let lawyers for a convicted murderer on death row lodge a last-minute appeal.

Sharon Keller is charged with professional misconduct.

The prisoner, Michael Wayne Richard, was put to death hours after she allegedly shut the court, despite being told an appeal was imminent.

Half of all executions in the US last year were in Texas and Judge Keller has earned the nickname Sharon Killer.

She is known for her tough stance on the death penalty.

This is just sad. Access to justice is a fundamental human right and brings with it the right to lodge appeals. It is appalling that such a judge can preside over the Texas Court of Appeal

Judges’ Dissents for Death Row Inmates Are Rising : New York Times

It took just 80 words for a federal appeals court to deny Kevin Cooper’s most recent plea to avoid execution. But attached to that order was a forceful 101-page dissent by a judge, all but pleading to spare Mr. Cooper’s life.

“The State of California may be about to execute an innocent man,” it began.

The judge who wrote the dissent, William A. Fletcher of the United States Court of Appeals for the Ninth Circuit, in San Francisco, argued that the police and prosecutors had withheld and tampered with evidence in the case for decades; Judge Fletcher even accused the district court of having sabotaged the case.

Compared with the dry, mannerly prose found in many opinions, Judge Fletcher’s passion in Cooper v. Brown is startling. But these kinds of fervent, lonely dissents, urging that a prisoner’s life be spared, have noticeably increased in the last decade, compared with previous years, according to a review of death penalty opinions by The New York Times, as confirmed by experts in the field.

In dozens of capital cases in recent years, appeals court judges, some of whom have ruled in favor of the death penalty many times, have complained that Congress and the Supreme Court have raised daunting barriers for death row prisoners to appeal their convictions, and in many cases the judges have taken on their colleagues.

“There is an increasing frustration among federal judges throughout the system,” said Eric M. Freedman, a critic of the death penalty who teaches on the subject at Hofstra Law School.

Dissents are common in US cases, but even then, an impassioned, forcefully argued dissent that spans 100 pages is indeed exceptional. Judge Fletcher’s stirring dissent in Cooper v Brown is eloquently argued and deserves to be read. It starts with a stark sentence: “The State of California may be about to execute an innocent man.” (page 2) and then goes on to present a series of judicial failures and police negligence that has led to this unfortunate event. It is not simply a last ditch desperate attempt by a man on death row, but a forceful indictment of a justice system that has gone horribly awry.

Commenting on how the district court had utterly failed to uphold justice, Judge Fletcher had this to say [at page 5]:

There is no way to say this politely. The district court failed to provide Cooper a fair hearing and flouted our direction to perform the two tests. As will be described in greater detail below, the district court impeded and obstructed Cooper’s attorneys at every turn as they sought to develop the record. The court imposed unreasonable conditions on the testing the en banc court directed; refused discovery that should have been available as a matter of course; limited testimony that should not have been limited; and found facts unreasonably, based on a truncated and distorted record.

It is a rare for appellate courts to issue such a stinging rebuke upon the incompetence of a lower court. In his concluding paragraphs, Judge Fletcher doesn’t merely state his dissent, he even goes as far as to suggest innocence of the accused:

Kevin Cooper has now been on death row for nearly half his life. In my opinion, he is probably innocent of the crimes for which the State of California is about to execute him. If he is innocent, the real killers have escaped. They may kill again. They may already have done so. We owe it to the victims of this horrible crime, to Kevin Cooper, and to ourselves to get this one right. We should have taken this case en banc and ordered the district judge to give Cooper the fair hearing he has never had.

Fletcher J. is not the sole dissenter in this case. Joining in his dissent were Justices Wardlaw, Peregeson, Reinhardt, Thomas, Berzon, Fisher, Kozinski and Graber.

In Justice Reinhardt’s dissent, he opines that:

I concur in Judge Fletcher’s thorough and highly persuasive dissent, as well as in Judge Wardlaw’s pithy summary of the judicial failures that infect this case. I would add, however, that the failures are not solely those of the district court. Our own handling of the matter, some of which has been made public and some of which has not, leaves much to be desired, and is a cause of considerable regret. There is no purpose, however, to looking backward at this point. What matters is that we have an obligation to afford Kevin Cooper a full and fair judicial hearing, and that once again we fail. By denying en banc review, we add to the prior systemic judicial malfunctions, and this time, we do so under a cloak of secrecy.

How can it possibly be safe to institute the sentence when so many judges have expressed reservations about the accused’s guilt? Whilst the American Death Penalty often takes a very long time with accused typically lodging multiple appeals, its strength is its willingness to give the accused the opportunity to challenge its conviction. Once upon a time i used to favor the death penalty but with time i have increasingly moved towards an abolitionist position. While not quite a true blue abolitionist, i think that the Cooper case is one clear situation where the accused can and should be given the benefit of doubt. The power to execute is too grave a sentence to be applied without absolute certainly of a person’s guilt.

Briton wins landmark ruling on assisted suicide

Right-to-die law to be clarified

Prosecutors will start work later to clarify the law on assisted suicide after a landmark court victory by a multiple sclerosis sufferer. On Thursday, Law Lords backed Debbie Purdy’s call for formal advice to be issued on the legal position of those who help a loved one commit suicide. Director of Public Prosecutions (DPP) Keir Starmer said interim policy guidance would be issued by September. Critics say the ruling could pressure people into ending their lives early.

COMMENT

The law should be clearly stated. The DPP’s discretion whether or not to prosecute should not remain shadowy and ambiguous. The House of Lords decision in R (on the application of Purdy) (Appellant) v Director of Public Prosecutions (Respondent) [2009] UKHL 45 is therefore the correct one and it is good that the Law Lords came to an unanimous decision in favor of the appellant.

Wikipedia painting row escalates

The battle over Wikipedia’s use of images from a British art gallery’s website has intensified.

The online encyclopaedia has accused the National Portrait Gallery (NPG) of betraying its public service mission.

But the gallery has said it needs to recoup the £1m cost of its digitisation programme and claims Wikipedia has misrepresented its position.

The NPG is threatening legal action after 3,300 images from its website were uploaded to Wikipedia.

The high-resolution images were uploaded by Wikipedia volunteer Derrick Coetzee.

Now Erik Moeller, the deputy director of the Wikimedia Foundation which runs the online encyclopaedia, has laid out the organisation’s stance in a blog post.

‘Empire building’

He said most observers would think the two sides should be “allies not adversaries” and that museums and other cultural institutions should not pursue extra revenue at the expense of limiting public access to their material.

“It is hard to see a plausible argument that excluding public domain content from a free, non-profit encyclopaedia serves any public interest whatsoever,” he wrote.

He points out that two German photographic archives donated 350,000 copyrighted images for use on Wikipedia, and other institutions in the United States and the UK have seen benefits in making material available for use.

Definitely worth a read is Erik Moeller rebuttal to NPG and his defence of wikipedia here. I will post a relevant excerpt below:

Both the NPG and Wikimedia agree that the paintings depicted in these images are in the public domain – many of these portraits are hundreds of years old, all long out of copyright. However, the NPG claims that it holds a copyright to the reproduction of these images (while also controlling access to the physical objects). In other words, the NPG believes that the slavish reproduction of a public domain painting without any added originality conveys a new full copyright to the digital copy, creating the opportunity to monetize this digital copy for many decades. The NPG is therefore effectively asserting full control over these public domain paintings.

The Wikimedia Foundation has no reason to believe that the user in question has violated any applicable law, and we are exploring ways to support the user in the event that NPG follows up on its original threat. We are open to a compromise around the specific images, but our position on the legal status of these images is unlikely to change. Our position is shared by legal scholars and by many in the community of galleries, libraries, archives, and museums. In 2003, Peter Hirtle, 58th president of the Society of American Archivists, wrote:

“The conclusion we must draw is inescapable. Efforts to try to monopolize our holdings and generate revenue by exploiting our physical ownership of public domain works should not succeed. Such efforts make a mockery of the copyright balance between the interests of the copyright creator and the public.”

Some in the international GLAM community have taken the opposite approach, and even gone so far to suggest that GLAM institutions should employ digitial watermarking and other Digital Restrictions Management (DRM) technologies to protect their alleged rights over public domain objects, and to enforce those rights aggressively.

COMMENTS

I will say that NPG stands on the wrong side of history here. Not only that, it is doing serious damage to its PR and it barely has a legal leg to stand on. Indeed it is trite law that indirect copying is still copying and you can indeed infringe copyright indirectly (Interlego v Tyco [1989 AC 217). For example, the painting is the original copy. Assuming it is copyright protected and a photographer takes a photograph of that painting, the photographer gains a valid copy right of the photo. If you then scan and reproduce multiple copies of said photograph, not only do you directly infringe the photographer’s copyright in that photo, you also indirectly infringe the copyright of the painter. Thus both the painter and photographer can sue you for copyright infringement, the former for indirect copying.

So far so good. But the problem is that the painting itself does not have copyright. It is undisputed that the paintings have already passed into the public domain. What NPG seeks to assert is that by “digitising” the paintings, it somehow has renewed copyright over these digitised versions and can therefore prevent your from reproducing such pictures. In short, it is akin to the photography example listed above, only this time the photographer has taken a picture of a painting in the public domain and seeks to now prevent people from copying his photos. The practical effect of this, especially since NPG has the sole right to digitise the paintings is to gain a de facto monopoly over the images. If one assets that NPG has copyright over such digital reproductions, it only begs a further the question of who has copyright over the product. This is because it is essential to identify the copyright holder for the purpose of determining the length of the copyright. Depending on where you are copyright protection can last anywhere from between the life of the author plus 50 years to life of the author plus 70 years.

Clearly, NPG as an organization cannot be said to own the copyright, because if it did the organization could theoretically last forever and consequently the copyright can be perpetual. Instead, it is more accurate that NPG’s employee has copyright over the digitisation (by virtue of doing the digitising) and NPG by virtue of being the employer owns the benefits of the copyright. Now, one can easily see as a matter of policy the dangers of allowing such an easy copyright to be asserted, because it would defeat the purpose of having public domain. Imagine if tomorrow the Louvre decided to “digitise” the Mona Lisa and block everyone from using the photo of Mona Lisa.

Indeed even in Interlego v Tyco, the court rejected the “sweat of the brow” effort in Walter v Lane [1900] AC 539. Instead the test of whether a copied work (in this case a digitised copy of the painting) can gain a new an independent copyright is whether there is a “material embellishment” that makes the copy different from the original. The mere fact that there was skill and effort in digitising (copying) is not enough. Granted, this position set our in Interlego is not entirely uncontroversial and Hyperion Records v Sawkins [2005] RPC 32 recently preferred the approach in Walter v Lane. But Hyperion should better be seen as crafting a limited to its exceptional facts and can in any case be distinguished from the Wikipedia case which is far closer to the situation of Interlego.

I can do no better than to cite the words of Lord Oliver in Interlego v Tyco why NPG firmly stands on the wrong side of history, and of the law:

Originality in the context of literary copyright has been said in several well known cases to depend upon the degree of skill, labour and judgment involved in preparing a compilation. Macmillan & Co. Ltd. v. Cooper, 40 T.L.R. 186 was such a case. So was G.A. Cramp & Son Ltd. v. Frank Smythson Ltd. [1944] A.C. 329 . Similarly in the speeches of Lord Reid and Lord Hodson in Ladbroke (Football) Ltd. v. William Hill (Football) Ltd.[1964] 1 W.L.R. 273, 277 (Lord Reid) and at pp. 285 and 287 (Lord Hodson) it is stressed that the amount of skill, judgment or labour is likely to be decisive in the case of compilations. To apply that, however, as a universal test of originality in all copyright cases is not only unwarranted by the context in which the observations were made but palpably erroneous.

Take the simplest case of artistic copyright, a painting or a photograph. It takes great skill, judgment and labour to produce a good copy by painting or to produce an enlarged photograph from a positive print, but no one would reasonably contend that the copy painting or enlargement was an “original” artistic work in which the copier is entitled to claim copyright. Skill, labour or judgment merely in the process of copying cannot confer originality. In this connection some reliance was placed on a passage from the judgment of Whitford J. in L.B. (Plastics) Ltd. v. Swish Products Ltd. [1979] R.P.C. 551, 568-569, where he expressed the opinion that a drawing of a three-dimensional prototype, not itself produced from the drawing and not being a work of artistic craftsmanship, would qualify as an original work. That may well be right, for there is no more reason for denying originality to the depiction of a three-dimensional prototype than there is for denying originality to the depiction in two-dimensional form of any other physical object. It by no means follows, however, that that which is an exact and literal reproduction in two-dimensional form of an existing two-dimensional work becomes an original work simply because the process of copying it involves the application of skill and labour. There must in addition be some element of material alteration or embellishment which suffices to make the totality of the work an original work. Of course, even a relatively small alteration or addition quantitatively may, if material, suffice to convert that which is substantially copied from an earlier work into an original work. Whether it does so or not is a question of degree having regard to the quality rather than the quantity of the addition. But copying, per se, however much skill or labour may be devoted to the process, cannot make an original work. A well executed tracing is the result of much labour and skill but remains what it is, a tracing.

New York Times

WASHINGTON — The Supreme Court ruled on Monday that white firefighters in New Haven were subjected to race discrimination when the city threw out a promotional examination on which they had done well and black firefighters poorly.

“The city rejected the test results solely because the higher scoring candidates were white,” Justice Anthony M. Kennedy wrote for the majority, adding that the possibility of a lawsuit from minority firefighters was not a lawful justification for the city’s action.

“Fear of litigation alone,” Justice Kennedy wrote, “cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions.”

The 5-to-4 ruling, which reversed an appeals court decision joined by Judge Sonia Sotomayor, now a Supreme Court nominee, will have broad impact, lawyers specializing in employment discrimination law said.

“This decision will change the landscape of civil rights law,” said Sheila Foster, a law professor at Fordham.

The new standards announced by the court will make it much harder for employers to discard the results of hiring and promotion tests once they are administered, even if they have a disproportionately negative impact on members of a given racial group.

Public employers that use civil service examinations and similar tests will be most directly affected, but the principle announced by the court applies to all employers and all sorts of procedures used to rank and sort potential and current employees.

Although i normally agree with the “Liberal” Wing of the USSC, this is one time where i think the “conservative” majority has rightly decided the case. Even as we seek to eliminate discrimination, we should no go so far in the other extreme as to effectively discriminate against the majority. Equality means just that, to be equal.

The New York Times

Justice John Paul Stevens, the leader of the Supreme Court’s liberal wing, likes to say that he has not moved to the left since he was appointed to the court by President Gerald R. Ford in 1975. It is the court, Justice Stevens says, that has moved to the right. Justice Stevens, who continues to be a keen and lively participant in oral arguments at the court, will turn 89 in April. Actuarial statistics alone suggest that President Obama may end up naming his replacement.

And that will present the new president with a question. Should he appoint someone who by historical standards is a full-throated liberal, a lion like Justice William J. Brennan Jr. or Justice Thurgood Marshall? Or should he follow the lead of President Bill Clinton, whose two appointees, Justice Ginsburg and Justice Stephen G. Breyer, are by those standards relative moderates?

It is certainly depressing that the Supreme Court has moved so unabashedly towards the conservative right in recent years. 5 of the 10 most conservative judges sit on the Supreme Court and quite possibly the most enduring legacy of the Bush administration has to be the judges appointed to the Supreme Court. Justice John Paul Stevens, one of my most respected judges is actually more of a moderate but appears far more liberal when compared to the rest of the Supreme Court. I’m not expecting Obama to appoint someone like Thurgood Marshall or William Brennan (though i do secretly hope that he will pick a decidedly liberal judge) but i do hope he will not continue the disturbing trend of appointing judges who are more conservative than their predecessors.

The New York Times

This month, Chief Justice Roberts, writing for the majority in Herring v. United States, a 5-to-4 decision, took a big step toward the goal he had discussed a quarter-century before. Taking aim at one of the towering legacies of the Warren Court, its landmark 1961 decision applying the exclusionary rule to the states, the chief justice’s majority opinion established for the first time that unlawful police conduct should not require the suppression of evidence if all that was involved was isolated carelessness. That was a significant step in itself. More important yet, it suggested that the exclusionary rule itself might be at risk.

The Herring decision “jumped a firewall,” said Kent Scheidegger, the general counsel of the Criminal Justice Legal Foundation, a victims’ rights group. “I think Herring may be setting the stage for the Holy Grail,” he wrote on the group’s blog, referring to the overruling of Mapp v. Ohio, the 1961 Warren Court decision.

To be fair, i think that on the facts of the case itself, the ruling can be justified. But this decision is a chip on the armor of the Fourth Amendment. Ultimately the policy can simply be put as whether we should be more or less protective of defendant’s rights. And i tend to fall on the side that personal liberty should be given the greatest respect. The difficulty here is that on the facts, i actually tend to agree with the majority’s reasoning that carelessness itself should not automatically invoke the exclusionary rule. This is one of those cases where as a matter of policy, i agree with the dissenting position, especially as laid out by Justice Ginsberg, but on the facts, i accept that the majority’s reasoning is justifiable.

Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), is an example of strict legalistic interpretation overriding common sense. It is a poorly decided case, all the more shocking because a majority of the US Supreme Court upheld it. The facts are these:

“Lilly Ledbetter was a supervisor at Goodyear Tire and Rubber’s plant in Gadsden, Alabama, from 1979 until her retirement in 1998. For most of those years, she worked as an area manager, a position largely occupied by men. Initially, Ledbetter’s salary was in line with the salaries of men performing substantially similar work. Over time, however, her pay slipped in comparison to the pay of male area managers with equal or less seniority. By the end of 1997, Ledbetter was the only woman working as an area manager and the pay discrepancy between Ledbetter and her 15 male counterparts was stark: Ledbetter was paid $3,727 per month; the lowest paid male area manager received $4,286 per month, the highest paid, $5,236.”

Now what seems to be a clear cut case of gender discrimination becomes altogether more complicated because of a statute of limitation because Title VII provides that a charge of discrimination “shall be filed within [180] days after the alleged unlawful employment practice occurred.” 42 U. S. C. §2000e–5(e)(1). Because Ledbetter did not file her claim on time, her suit failed on this technical ground. The absurdity and manifest injustice of this decision is clear and it is appalling that the majority denied her claim. Justice Ginsberg’s vigorous dissent is noteworthy in just how strongly worded it is:

“The Court’s approbation of these consequences is totally at odds with the robust protection against workplace discrimination Congress intended Title VII to secure… This is not the first time the Court has ordered a cramped interpretation of Title VII, incompatible with the statute’s broad remedial purpose. … Once again, the ball is in Congress’ court. As in 1991, the Legislature may act to correct this Court’s parsimonious reading of Title VII”

And indeed it seems that Obama and the Congress are working to overturn Ledbetter, which is an appalling decision and a step back for workplace equality.

And as always, Stephen Colbert demonstrates with his usual satirical style, how ridiculous this case really is. Hopefully common sense will prevail, and the atrocious decision that is Ledbetter be overturned.

Singapore Strikes Again

Let us begin with an apology to our readers in Asia. Unless they are online, they will not see this editorial. For legal reasons, we are refraining from publishing it in The Wall Street Journal Asia, which circulates in Singapore.

Our subject is free speech and the rule of law in the Southeast Asian city-state — something on which the international press and Singapore’s government have often clashed. We can’t say which side would prevail if the Singapore public could hear an open debate, but the fact is that we know of no foreign publication that has ever won in a Singapore court of law. Virtually every Western publication that circulates in the city-state has faced a lawsuit, or the threat of one.

This is one of those days where you are embarrassed by the standards of the judiciary.

I only realised quite recently, that Lord Millett was spelt with 2 “t”s. I have been spelling it as “Millet” for the longest time. Another bit of trivia: Hoffmann is spelt with 2 “n”s, not one.