Tag: law

Supreme Court Justice Stephen Breyer Announces Retirement After 27 Years On The Court

Justice Stephen Breyer will step down from the Supreme Court at the end of the current term, according to people familiar with his thinking. President Joe Biden and Breyer are scheduled to appear together at the White House on January 26 as the Supreme Court justice is set to announce his retirement, a source familiar with the matter confirmed to NBC News. Justice Breyer is one of the three remaining liberal justices, and his decision to retire after more than 27 years on the court allows Biden to appoint a successor who could serve for decades and, in the short term, maintain the current 6-3 split between conservative and liberal justices.

At 83, Justice Stephen Breyer is currently the court’s oldest member. Liberal activists have urged him for months to retire while Democrats hold both the White House and the Senate, a position that could change after the midterm elections in November. They contended that Justice Ruth Bader Ginsburg stayed too long despite her history of health problems and should have stepped down during the Obama administration. Ginsburg’s death from cancer at 87 allowed then-President Donald Trump to appoint her successor, Amy Coney Barrett, moving the court further to the right. An appointment by President Joe Biden could keep Breyer’s seat on the liberal side of the court for years or decades to come.

Erwin Chemerinsky, dean of the University of California Berkeley School of Law, urged Justice Stephen Breyer to retire in a Washington Post op-ed article in May, writing that there are times “when the stewards of our system must put the good of an institution they love, and of the country, they love, above their own interests. They have to recognize that no one, not even a brilliant justice, is irreplaceable and that the risks presented by remaining are more than hypothetical.” President Joe Biden promised on the campaign trail to nominate a Black woman to the court. In the wake of Breyer’s announcement, there was an outpouring of statements calling for him to follow through. The progressive group Demand Justice hired a truck last year to drive around Washington with the sign: “Breyer Retire. It’s time for a Black woman Supreme Court justice.” Among likely contenders are U.S. Circuit Judge Ketanji Brown Jackson of the Court of Appeals for the District of Columbia, a former Breyer law clerk; and Leondra Kruger, a justice on California’s Supreme Court.

Jackson, formerly a district court judge in Washington, was nominated by Biden to the U.S. Circuit Court and was confirmed by the Senate in mid-June on a 53-44 vote, including three Republicans. She succeeded Merrick Garland, who left the appeals court to become Biden’s attorney general.

Senator Patty Murray (D-WA), was among those who issued a statement soon after the news of Breyer’s impending retirement, calling on Biden to uphold his pledge to nominate a Black woman as the next justice. “The court should reflect the diversity of our country, and it is unacceptable that we have never in our nation’s history had a Black woman sit on the Supreme Court of the United States — I want to change that,” she said.

Senate Majority Whip Dick Durbin (D-IL) echoed those sentiments in a tweet, saying Biden has the opportunity to bring “diversity, experience, and an evenhanded approach to the administration of justice.”

Senate Majority Leader Chuck Schumer (D-NY) said President Joe Biden’s nominee will “receive a prompt hearing in the Senate Judiciary Committee, and will be considered and confirmed by the full United States Senate with all deliberate speed.” “America owes Justice Breyer an enormous debt of gratitude,” Schumer added. Republican Senator Lindsey Graham of South Carolina, who voted for Justices Sonia Sotomayor and Elena Kagan, said if Democrats “hang together,” as he expects, they will have the power to replace Breyer without one Republican vote. “Elections have consequences, and that is most evident when it comes to fulfilling vacancies on the Supreme Court,” Graham said in a statement.

Appointed by President Bill Clinton, Justice Stephen Breyer came to the Supreme Court in 1994 and became one of the court’s moderate-to-liberal members, though he often said it was misleading to label justices with such terms. Breyer believed that interpreting the Constitution should be based on practical considerations, changing with the times. That put him at odds with conservative justices who said the court must be guided by the original intent of the founders. “The reason that I do that is because law in general, I think, grows out of communities of people who have some problems they want to solve,” he said in an interview. Breyer wrote the court’s opinion striking down a state law that banned some late-term abortions in 2000 and dissented seven years later, when the Supreme Court upheld a similar federal law passed by Congress. He supported affirmative action and other civil rights measures. And in a widely noted dissent in 2015, he said the death penalty in America had become so arbitrary that it was probably unconstitutional.

January 28, 2022
Appeals Court Slows January 6 House Select Committee’s Effort To Access Trump White House Records

A federal appeals court on November 11 granted a short-term delay in the January 6 select committee’s access to former President Donald Trump’s White House records. A three-judge panel of the US Court of Appeals for the DC Circuit, including President Joe Biden’s first and only appointee to that court, Ketanji Brown Jackson, will instead hear arguments in the matter on November 30. The delay is a minor setback for the House January 6 Committee, which had prevailed in US District Court against Trump’s legal effort to block access to his records altogether. The National Archives, which house Trump’s records, had been preparing to deliver the first batch of requested files to the committee.

The first batch of documents that was slated for release on November 12 is relatively small, as former President Donald Trump contested just 70 pages. But subsequent tranches identified by the Archives include hundreds of pages that were slated for release on November 26. Those will now likely be delayed, as well. The records include call logs, visitor records and documents culled from the files of top Trump aides like chief of staff Mark Meadows. The committee has repeatedly emphasized the urgency of accessing Trump’s records as it explores the former president’s effort to overturn the 2020 election results, including the January 6 assault on the Capitol that disrupted the electoral vote count and sent lawmakers fleeing in fear.

Despite claims of urgency, the January 6 House Select Committee did not object to former President Donald Trump’s request for a temporary injunction while the appeals court considers the broader issues. The Justice Department also took no position on the temporary stay. The composition of the appeals court panel is likely to hearten House investigators. The order issued on November 11 indicates that, in addition to Jackson, the panel includes Judges Patricia Millett and Robert Wilkins, who were appointed by former President Barack Obama to the court. The court’s order emphasized that the move to freeze the status quo, for the time being, should not be seen as reflecting what the court will end up deciding about Trump’s attempt to block disclosure of files from his former White House. “The purpose of this administrative injunction is to protect the court’s jurisdiction to address appellant’s claims of executive privilege and should not be construed in any way as a ruling on the merits,” the order said.

Despite the slowdown, the case is still moving at breakneck speed through typically slow-moving federal courts. Former President Donald Trump filed suit in mid-October to block the January 6 committee’s access to his records. A District Court judge, Tanya Chutkan, rejected Trump’s efforts, dismissing the notion that a former president could overrule the sitting president on matters of executive privilege. Trump quickly appealed the decision and asked the appeals court to delay the effect of Chutkan’s ruling until fuller arguments could be heard. The appeals court’s decision to set a two-week briefing schedule keeps the case moving on a fast track. Trump is due to file his written brief in the case on November 16, with a reply by the National Archives and the House on November 22. Trump will have an additional reply on November 26 before oral arguments the following week. If Trump loses in the three-judge panel, he has the option to appeal to the full appeals court or the Supreme Court.

November 13, 2021
President Donald Trump Nominates Amy Coney Barret To The Supreme Court

President Donald Trump announced September 26 that he will nominate federal appeals court Judge Amy Coney Barrett to the Supreme Court, a choice that would lock a conservative majority on the high court and that could help turn out Republican voters in the election less than six weeks away. Judge Barrett would fill the vacancy left by the death of Justice Ruth Bader Ginsburg, preserving the court’s gender balance of three women and six men while potentially tipping its ideological balance for decades. President Trump introduced Barrett in a Rose Garden ceremony attended by conservative activists, a reminder that shifting the Supreme Court to the ideological right has been a decades-long focus for Republicans.

“Amy Coney Barrett will decide cases based on the text of the Constitution as written,” President Donald Trump said, as the nominee stood beside him. “As Amy has said, being a judge takes courage. You are not there to decide cases as you may prefer. You are there to do your duty and to follow the law, wherever it may take you.” President Trump and Judge Barrett praised Ginsburg as a trailblazer, and Barrett said she would do the job of a justice “mindful of who came before me.” Their views and backgrounds could not be more different, however, as the deeply conservative Barrett made clear with a tribute to the late Antonin Scalia, the conservative jurist for whom she was a law clerk and who she said was her legal role model. “I have no illusions that the road ahead of me will be easy, either for the short term or the long haul. I never imagined that I would find myself in this position, but now that I am, I assure you that I will meet the challenge with both humility and courage,” Barrett said, adding that she looked forward to meeting with senators.

Judge Amy Coney Barrett is expected to be confirmed swiftly by the Republican-majority Senate and could be seated before the Presidential election, the resolution of which President Donald Trump has predicted could end up before the Supreme Court. Democrats, with little chance of derailing the nomination, say they are being steamrolled. Some in the party are refusing to meet with Barrett, while liberal activists are pushing Democratic lawmakers for more drastic moves such as boycotting the confirmation hearings. Senate Republicans were preparing to accelerate the confirmation process as soon as the announcement was made, with Senate Majority Leader Mitch McConnell (R-KY) planning to meet with Barrett on September 29, according to an aide. Senate Judiciary Committee Chairman Lindsey Graham (R-SC) confirmed in an interview with Fox News that the hearings for Barrett will begin October 12 with opening statements, with questions set to take place on October 13 and 14. There will be testimony from outside witnesses at some point, he said, and the committee process will begin October 15, meaning a panel vote on Barrett’s nomination could come as early as October 22 under Judiciary rules. “I expect they’re going to throw the kitchen sink at us,” Senate Majority Whip John Barrasso (R-WY), said in an interview. But he said he was confident Barrett would be confirmed before the election “if everything moves along smoothly.”

The prospect of conservative judges and a shift on the high court helped President Donald Trump, with few ideological lodestars, win over skeptical Republicans in 2016, and he has been unapologetic about using this surprise vacancy to further his chances for reelection. “Fill that seat” has been a featured chant at President Donald Trump’s political rallies over the past week, and his campaign is raising money with messages to supporters that tout the president’s Supreme Court pick. Republicans also started selling a T-shirt Saturday that appropriated Ginsburg’s pop-culture-inspired nickname, “Notorious RBG.” The shirts say “Notorious ACB.”

During the White House announcement, the election was not mentioned, nor was abortion, the issue on which many senators of both parties are likely to base their vote on Amy Coney Barrett. Democratic presidential nominee Joe Biden issued a statement on the nomination that focused on the Coronavirus and the Affordable Care Act’s future, which is back before the high court in the term that begins October 5. “She has a written track record of disagreeing with the U.S. Supreme Court’s decision upholding the Affordable Care Act” in 2012, Biden said, noting that Barrett had also criticized Chief Justice John Roberts for his deciding vote in that case.

The 16 days from Amy Barrett’s nomination to the start of her confirmation hearings would be the shortest in recent memory. Since 1990, it has taken an average of 50 days from a Supreme Court pick’s nomination to the start of his or her confirmation hearings, significantly shortcutting the time available for Senators to examine Barrett’s record, read through her writings, and to prepare questions for the hearings. Republican leaders are aiming for a final confirmation vote just days before Election Day, a goal they say is feasible in part because Barrett’s record and background were already scrutinized during her bitter 2017 confirmation to the federal bench. Democrats cited Senate Majority Leader Mitch McConnell’s 2016 refusal to hold hearings for President Barack Obama’s last Supreme Court nominee, Judge Merrick Garland, on the theory that voters in that year’s presidential election should have their say first. Senator McConnell has since reversed his opinion to say that Trump’s confirmation pick should go forward before the election.

Amy Coney Barrett is already well known to Republican senators, many of whom had hoped Trump would pick her for the next vacancy. When President Donald Trump said he would consider only women to fill Ginsburg’s seat, Barrett became the automatic favorite. President Trump said he considered five women, but Barrett is the only one he is known to have interviewed in person. Senate Majority Leader Mitch McConnell made known to Trump his preference for Barrett, since his ranks were the most familiar with her. Although her writings on precedent and personal antiabortion views could be a significant obstacle for Senators Susan Collins (R-ME) and Lisa Murkowski (R-AK), who support access to abortion, both have said they do not support holding a confirmation vote before the election anyway. That cleared the way for Trump and McConnell to push through the most conservative candidate possible. As he departed the White House for a Saturday night rally in Pennsylvania, Trump told reporters he did not discuss abortion with Barrett during their interview. “I never discussed that with Amy” and the court itself is “going to have to make that decision,” he said. At the rally, he said that “most important of all she will defend your God-given rights and freedoms.” People behind Trump wore MAGA hats and MAGA masks and held signs saying “Fill That Seat” and “Peaceful Protester.”

September 27, 2020
In Major Victory For Coronavirus Lockdown Opponents, Federal Judge Rules Unconstitutional Lockdown Measures Put In Place In Pennsylvania

On September 14, a federal judge ruled as unconstitutional some of Pennsylvania Governor Tom Wolf’s orders to control the Coronavirus outbreak, including limits on crowd sizes, requirements that people stay home, and non-essential businesses close down. Ruling on a lawsuit brought by business owners and Republican politicians, District Judge William Stickman IV, a Trump appointee, said the restrictions were executed with good intentions but were arbitrary and violated individual rights. While some of the limits have been lifted since the lawsuit was filed in May, the Democratic governor has maintained some restrictions on gatherings and on bars and restaurants. Previous legal challenges to some of the governor’s pandemic-related restrictions had been unsuccessful.

There have been hundreds of cases filed in federal and state courts across the US, challenging various local Coronavirus restrictions, with some going all the way to the Supreme Court. The Supreme Court in July declined to lift a 50-person limit on religious services adopted by Nevada’s Democratic governor in response to the pandemic, and in May it rejected challenges to Coronavirus curbs on religious services in California and Illinois. Perhaps one of the most emblematic cases of the clash over pandemic curbs took place in Wisconsin in May, when some residents flocked to bars to celebrate a ruling by the state’s top court that struck down a statewide stay-at-home order. Several lawsuits challenging Illinois Governor J.B. Pritzker orders are working their way through state courts. The lawsuits accuse Pritzker, a Democrat, of overstepping his authority.

Despite a recent return to school for many students and teachers, Coronavirus cases in the US have dropped sharply in recent weeks, and both deaths and hospitalizations are trending lower at a slower pace. According to a Reuters analysis, the number of new cases fell 15% last week and deaths fell for a fourth week in a row. On average, the US reported 35,000 new cases each day in the week ended September 13, marking the eighth straight week of declines from a peak in July of about 75,000 new cases a day. Coronavirus death rates have declined somewhat as well, with approximately 1,200 people dying per day, down from a peak of 3,000 per day at the end of March.

September 14, 2020
Criminal Law: Theories of Punishment

One of the major debates within the American Criminal Law system is what for of punishment will do the most to deter crime and rehabilitate criminal defendants. This issue has been at the forefront of policymakers and legal scholars alike and has changed throughout the decades. During the heyday of liberalism between the 1930s and mid-1960s, the judicial and executive branches wielded power in sentencing. Legislators designed sentencing laws with rehabilitation in mind. More recently, during the increase in support for conservative policies the late 1960s legislators seized power over sentencing, and a combination of theories, deterrence, retribution, and incapacitation, have influenced sentencing laws. Here is a list of all the main theories of punishment in criminal law
1. Incarceration

Incarceration is the most commonly used form of punishment in the US.
An argument in favor of mass incarceration is that it gets criminals off the streets and protects the public. The idea is to remove an offender from society, making it physically impossible (or at least very difficult) for him or her to commit further crimes against the public while serving a sentence. Incapacitation works as long as the offenders remain locked up. There is no question that incapacitation reduces crime rates by some unknown degree. The problem is that it is costly. Incapacitation carries high costs not only in terms of building and operating prisons but also in terms of disrupting families when family members are locked up. Incarceration is the typical form of punishment meted out today in the US for serious crimes. According to the International Centre for Prison Studies, the US has the second highest rate of incarceration, behind the small country of Seychelles. Even authoritarian regimes such as Saudi Arabia, Israel, and China have lower incarceration rates than the US. The rapid increase in the rate of imprisonment after 1970 has produced an era of “mass incarceration” in the US. Although the incarceration rate has declined from a high of 506 per 100,000 in 2007 to 480 per 100,000 in 2012, state and federal prisons still house over 1.5 million people. The causes of mass incarceration in the US are numerous, ranging from the rise of the Prison Industrial Complex since the 1980s, draconian anti-crime laws that were passed in 1984 and 1994, and the federal War on Drugs, which was first implemented by President Woodrow Wilson in 1914 with the Harrison Narcotics Tax Act and expanded by President Franklin Roosevelt in 1937, President Richard Nixon in 1971, President Ronald Reagan in 1982, President Bill Clinton in 1994, and President Donald Trump in 2017. Additionally, a vast majority of Americans support mass incarceration in spite of its costs and have called upon their elected officials to expand incarceration rates despite the fact that crime in the US is at its lowest level since the late 1950s.
2. Utilitarian Theory
The utilitarian theory of punishment seeks to punish offenders to discourage, or “deter,” future wrongdoing. The retributive theory seeks to punish offenders because they deserve to be punished. Under the utilitarian philosophy, laws should be used to maximize the happiness of society. Because crime and punishment are inconsistent with societal happiness, they should be kept to a minimum. Utilitarians understand that a crime-free society does not exist, but they endeavor to inflict only as much punishment as is required to prevent future crimes. The utilitarian theory is “consequentialist” in nature. It recognizes that punishment has consequences for both the offender and society and holds that the total welfare produced by the punishment should exceed the total evil. In other words, the punishment should not be unlimited. One illustration of consequentialism in punishment is the release of a prison inmate suffering from a debilitating illness. If the prisoner’s death is imminent, society is not served by his continued confinement because he is no longer capable of committing crimes. Under the utilitarian philosophy, laws that specify punishment for criminal conduct should be designed to deter future criminal conduct. Deterrence operates on a specific and a general level. General deterrence means that punishment should prevent other people from committing criminal acts. The punishment serves as an example to the rest of society, and it puts others on notice that criminal behavior will be punished.
3. Retribution Theory
“Let the punishment fit the crime” captures the essence of the retributivist theory of punishment. Proponents of this theory advocate just deserts, which defines justice in terms of fairness and proportionality. Retributivists aim to dispense punishment according to an offender’s moral blameworthiness (as measured by the severity of crimes of which the offender was convicted). Ideally, the harshness of punishments should be proportionate to the seriousness of crimes. In reality, it is difficult to match punishments and crimes, since there is no way to objectively calibrate the moral depravity of particular crimes and the painfulness of specific punishments. Retribution is a backward‐looking theory of punishment. It looks to the past to determine what to do in the present. The retributionist theory is constrained in part by the Eighth Amendment to the US Constitution, which forbids “cruel and unusual punishments.”
4. Deterrence Theory (Can Fear Prevent Crime?)

Deterrence is another theory of punishment that is often debated.
Crime deterrence is simply the action of discouraging an activity through instilling doubt or fear of its consequences in the minds of the perpetrator. There has been much debate over whether deterrence works. Proponents assert that punishment deters if it is administered with swiftness, certainty, and severity. There are two different forms of deterrence, general deterrence, and specific deterrence. General deterrence uses the person sentenced for a crime as an example to induce the public to refrain from criminal conduct, while specific deterrence punishes an offender to dissuade that offender from committing crimes in the future. Critics point to the high recidivism rates of persons sentenced to prison as evidence of the lack of effectiveness of specific deterrence. Critics also note that there are limits to the impact of general deterrence. Some crimes, such as crimes of passion and crimes committed while under the influence of drugs, cannot be deterred because their perpetrators don’t rationally weigh the benefits versus the costs (which include punishment) before breaking the law. Research evidence suggests that the deterrent effect of punishment is much weaker than its proponents suggest.
5. Reintegrative Shaming
The reintegrative shaming theory emphasizes the importance of shame in criminal punishment. The theory holds that punishments should focus on the offender’s behavior rather than the characteristics of the offender or the actual crime committed. Australian criminologist John Braithwaite developed this theory at Australian National University in 1989. An example of reintegrative shaming is in the 2004 case United States v. Gementera, wherein a 24-year-old mail thief was sentenced to wear a sandwich board sign stating, “I stole mail; this is my punishment” while standing outside of a San Francisco postal facility. The main strength of this theory is that it consists of a humane way to punish someone who committed a crime and places the onus of responsibility on themselves. On the other hand, opponents of the reintegrative shaming theory argue that it does not strongly punish a criminal defendant and may result in them committing more crimes in the future.

February 14, 2019
Theories of Property Law

¹⁾Property law is the area of law that governs the various forms of ownership and tenancy in both real and personal property. In the civil law system, there is a division between movable and immovable property. Movable property roughly corresponds to personal property (computers, cars, widgets, etc.), while immovable property corresponds to real estate (real property) and the associated rights, and obligations thereon.

The American property law system is based on the concept that property is a human invention, not the result of a divine gift or natural right (social construct). Thus, property exists only to the extent that it is recognized by the government, an approach called legal positivism. Because property is a human invention, it is necessarily based on reason. The justification of property is important because it determines the scope and extent of legally recognized property rights. Accordingly, natural law theory (the idea that certain rights naturally existed as a matter of fundamental justice regardless of government action) has little impact on modern property law.

Within the study of property law, there exist five distinctive theories explaining how or why things become property, as well as why the concept of property is necessary

Protect First Possession:

This theory offers a practical explanation of how unowned things become property. In settings where resources are plentiful, but where people are few (i.e. the early US), this first-in-time approach accurately describes how unowned property came to be owned. Particularly during the 19th Century, property rights in water, oil and gas, wild animals, and other natural resources were often allocated to the first possessor. Additionally, US laws such as the Homestead Act of 1862 are examples of the first-in-time approach towards property law.

The first-in-time approach has less relevance today because almost every tangible thing is already owned by someone, but its influence lingers in cases. For example, all of use this principle in everyday life. A parking lot on the street, a seat in a movie theater, or a spot in a long line, are all allocated through an implicit first-in-time system. Yet most scholars conclude that the first possession approach does not adequately justify property as a general matter. It describes how property rights arose, but not why it makes sense for society to recognize those rights.

Encouraging Labor

Writing in the late 1600s, John Locke reasoned that each person was entitled to the property produced through their labor. Assuming an unlimited supply of natural resources, Locke argued that when a person mixed their labor (which they owned) with natural resources (which they did not own), they acquired property rights through this mixture.

Labor theory has profoundly influenced American property law over the past 200 years. A problem with this theory is that there are no unlimited resources today (perhaps only oxygen is the only infinite resource), this theory is applied less to real property and more towards tangible personal property and intellectual property.

Maximizing Societal Happiness

This theory states that individuals recognize property in order to maximize the overall happiness of society (utilitarianism theory). We distribute and define property rights in a manner that best promotes the welfare of all citizens – not simply those who own property. A division between clear rules and equitable rules (tension between clarity and equity) is highlighted in this theory, which may not always lead to a result that is considered fair. Clear rules also minimize transaction costs, which may benefit society and reduce litigation.

Law & Economics Theory

Property is seen as an efficient method of allocating valuable resources in order to maximize one particular facet of societal happiness: wealth, typically measured in dollars.

Ensure Democracy

Civic republican theory states that property facilitates democracy. Idea is that one who has his own private property should feel free to challenge governmental actions that are abusive or unfair. Gives independence.

Personhood Theory

Property is necessary for an individual’s personal development. Each person has a close emotional connection to certain tangible things, which virtually become part of one’s self.

All of these theories help form the foundation of American property law. It is important to understand that no one theory is accepted as the only justification for property. Our property system reflects a blend of different approaches which often overlap with each other.

February 7, 2019
What is Copyright Law?
A Copyright is a form of legal protection automatically provided to the authors of “original works of authorship,” including literary, dramatic, musical, and artistic works. The US Constitution authorizes Congress to “promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The federal copyright law arises from the portions of this clause concerning “authors” and “writings.” Thus, copyright law exists to serve a specified utilitarian goal: to promote the progress of science and the useful arts. Copyright protection serves this goal by giving authors an incentive to create works that will benefit the public.

The copyright owner has a right to exclude. For example, they may prevent other persons from reproducing, distributing performing, or publically displaying their work without their permission. Additionally, they may transfer their copyright to others and effectively destroy it by abandoning it.

Many different types of works are protected by US copyright law including:
- Literary works
- Music and lyrics
- Dramatic works and music
- Pantomimes and choreographic works
- Photographs, graphics, paintings, and sculptural works
- Motion pictures and other audiovisual works
- Video games and computer software
- Audio recordings
- Architectural work
Despite the fact that many different types of creative works are copyrightable under existing federal law, several other creative works such as ideas are also not copyrightable. Only tangible forms of expression (e.g., a book, play, drawing, film, or photo, etc.) are copyrightable. Once you express your idea in a fixed form as a digital painting, recorded song, or even scribbled on a napkin, it is automatically copyrighted if it is an original work of authorship. Unfixed works that have not been recorded in a tangible, fixed form (e.g., a song you made up and sang in the shower), works in the public domain, titles, names, short phrases, and slogans; familiar symbols or designs; numbers, ideas and facts, processes and systems (e.g., the Dewey decimal system), and federal government works (e.g., the tax code) are not copyrightable under US law.

The author/creator, their heirs assuming that the creator is dead, creators of a joint work, and anyone to whom the author/creator has given or assigned his or her copyright (e.g., an employer if the copyrighted work is created under a “work made for hire” agreement, a publisher or record company if the copyrighted work is given in exchange for a publishing or recording contract) are copyright owners under the law.

With regards to recorded music, if a person writes a song and records it, that person is the creator and owns the copyright. But professionally produced music can have many copyright owners. For example, the copyright to a particular sound recording may be owned by the songwriter, the performer, the producer, a record label (i.e. the RCA-Victor, Columbia, Supraphon, Esta, etc.), a publisher, or a combination thereof. The 1976 Copyright Act extended the basic term for new works to the author’s life plus 50 years, whereas the 1998 Copyright Term Extension Act (CTEA) extended the terms of all existing and future copyrights by an additional 20 years.

Generally speaking, any work published in the US prior to 1923 is now in the public domain, though recorded music going back to 1889 (the year in which Edison Records, then known as the North American Phonograph Co., released the first pre-recorded music on wax cylinder records) is now copyrighted due to the Music Modernization Act of 2018. Though all American music recordings going back to 1889 are potentially copyrightable under the Music Modernization Act, other works such as movies, comic books, etc. are not and the clock will start ticking again in 2020 when works made after 1924 will start trickling into the public domain.

https://youtu.be/ho8QEJSF3YA
February 4, 2019
Is President Obama’s Immigration Executive Constitutional?

The issue of immigration reform in the United States has ignited a series of political debates over the last few years and has increased the partisan divide between both political parties. In the debate over illegal immigration, some argue that the proper solution is to enhance border security and to provide a program that establishes a pathway to citizenship for undocumented immigrants. On the other hand, others argue that illegal immigration negatively impacts taxpayers, tarnish the public perception of immigrants, and jeopardizes the safety of law enforcement officials and citizens along the US-Mexican border. Additionally, opponents of comprehensive immigration reform argue that in effect, any reform would “reward lawbreakers” at the expense of immigrants who come to the United States through legal means. The issue of immigration reform has also resulted in several different proposals at the Congressional level by members of both political parties.

To address a number of issues surrounding illegal immigration, President Obama issued a series of executive orders in November 2014 meant to protect some 5 million undocumented immigrants from deportation and allow for a percentage of undocumented immigrants to apply for citizenship under the Deferred Action for Childhood Arrivals (DACA) program. The response to President Obama’s executive actions has been mixed, with Democrats almost universally in favor and Republicans nearly unanimous in their opposition. In addition, the sweeping nature of the executive orders has led some to argue that President Obama’s actions are unconstitutional and represent an instance of executive overreach. In response to the allegations of the order’s unconstitutionality, several states have signed on to a federal lawsuit challenging the Obama Administration. Overall, it can be argued that President Obama’s actions are unconstitutional and represent an abuse of executive power.

The main point of contention against the Obama Administration’s executive actions on immigration is that they go against the principle of separation of power and usurp legislative authority regarding the implementation of immigration laws. The historical precedence regarding immigration law is that Congress has the authority to regulate immigration and legislate any laws surrounding it. Article 1, Section 8 of the US Constitution goes on to entrust the legislative branch to “establish a uniform role of naturalization.” Such language confirms the fact that Congress is to have the primary power in establishing laws that determine how noncitizens are to become citizens of the United States. The idea of Congress having the power to regulate immigration has been upheld by the Supreme Court cases in many cases such as Henderson v. Mayor of New York and Arizona v. United States.

Additionally, President Obama using an executive order to influence existing law may set a precedent for future Presidents to use executive authority to address matters explicitly reserved for other branches of government.
Additionally, opponents of President Obama’s immigration executive order argue that his decision to not enforce existing immigration law is a violation of his Constitutional powers. Article 2, Section 3 of the Constitution requires the President to “take Care that the Laws be faithfully executed.” Such guidelines mean that the President cannot nullify or not enforce laws that they do not agree with. An example of a law passed by Congress that President Obama has chosen not to support through his executive order is the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (IIRAIRA). The purpose of the Act was to improve border security by increasing the powers and responsibilities of agencies charged with monitoring visa applications. Additionally, the law gave federal agents increased latitude with deporting undocumented immigrants. Considering such factors, it can be argued that President Obama is acting outside of his Constitutionally defined powers by issuing the executive orders regarding immigration.

In conclusion, the debate over immigration reform has emerged as an important political topic over the past few years and has served to highlight the partisan divisions between both the Republican and Democratic parties. Numerous solutions were proposed to address the issue, but the stark divisions between both sides have thus far prevented any substantial reform from emerging. The executive orders issued by President Obama has added to the debate over illegal immigration and has raised numerous questions about the powers of the executive branch. It can be argued that President Obama’s executive order are in violation of the principles of separation of power and are in violation of the President Constitutional powers, in particular, their obligation to uphold and execute all laws. Only time will tell if the issue of immigration reform will become settled law and whether or not President Obama’s executive actions will be deemed Constitutional or not.

December 20, 2014