Sigh. I don't do a whole lot of international law, and my experience with the LOAC (law of armed conflict) comes from the same source as Jim Macdonald's (if, perhaps a bit closer to the pointy end of the stick). Thus, my thoughts tend toward procedure, not substance.
That said, the real problem is that — technically — I don't think Rumsfeld has, in fact, committed a "war crime." The definitions of "war crimes" are very narrow, and require one of three things:
* Genocidal acts under command authority
* Genocidal acts without command authority
* Persistent, systematic maltreatment of prisoners of war
We might expect that last one to be the closest, but (unfortunately) mere torture to obtain information doesn't meet that standard unless it is widespread and ignored. Abu G'raib actually helps Rumsfeld's case, because it wasn't ignored. (The consequences weren't sufficient, but degree doesn't matter.) Then, too, there's the question of whether everyone at Gitmo qualifies as a POW. IMNSHO, they do... but there are some inventive arguments one can make otherwise.
On to my area of expertise — civil procedure. (We can rule court martial right out, as Rumsfeld was not subject to the UCMJ.) There are essentially four critical errors that need to be corrected to make this a procedurally proper suit:
* The suit must be in the name of one or more persons who have standing to sue. That also means that, under whatever substantive theory gets put forth, there must be a remedy that the court could enforce. Offhand, I would say that the most promising places to look would be 42 U.S.C. §§ 1981–83 ... but that requires credible evidence of discriminatory intent and action against a protected group. There are other possibilities (such as RICO), but they all require exceptionally strong foundations to be used against public officials.
* The suit must be filed in the correct location, and it must allege an appropriate basis for personal jurisdiction over the defendant(s). Hint: That is tested at the time the suit is filed, not at the time that the alleged misconduct occurred.
* Too many complaints, including this one, forget that we have "notice pleading" under Fed. R. Civ. Proc. 8, not the convoluted "fact pleading" required by many state systems. A complaint in a case of this nature should be as succinct and bare as possible. The defendant(s) can always file a motion for more definite statement to get more details on issues that remain unclear from the complaint. A succinct complaint is much harder to get rid of on a motion to dismiss; the less one alleges, the more room one has to demonstrate the existence of a set of facts consistent with the complaint that would allow relief.
* The complaint needs to be restructured to foreclose two of the major abstention doctrines. There are ways to do so; the complaint as it exists now, though, whispers something like this to a judge: "Psst. You can get this one off your docket really easily by invoking either Younger or the discretionary-function rule. You really don't want this one to rule your life forever; nobody remembers the Hon. John Scirica for anything other than Watergate, even though his opinion on antitrust and administrative law matter more today. No matter which way you decide anything of substance you're going to get death threats."
And, of course, fixing that just gets the ball rolling, probably for longer than Jarndyce v. Jarndyce.
With the exception of one message after #27 in this thread, y'all have just demonstrated why defense attorneys are so prone to attacking witnesses with seeming irrelevancies:
It works to get even dedicated people thinking about something other than their clients' guilt.
Teresa, I completely agree with respect for the rule of law. Unfortunately, under existing doctrine this particular suit against Rumsfeld personally must be dismissed.
The complaint appears to be structured more as a PR document for grandstanding than it is a serious lawsuit. For one thing, the personal jurisdiction allegations (as summarized to me) are incomplete; for another, the complaint apparently does not allege facts that would support standing for the plaintiffs — that is, that the plaintiff organizations have an actual, cognizable interest in the outcome of the litigation that would or could be resolved by a remedy enforceable by the courts. Even getting past those two hurdles (which can be managed by just about any second-year law suit... but "can be" doesn't mean "motivated by underlying strategy to"), there's a whole series of cases on a doctrine called "abstention" that give the court a way to get this monstrosity off its docket. IMNSHO, abstention doctrine has become far, far too broad since 1973. However, the rule of law requires that I nonetheless respect the doctrine; I can try to get it changed, but a lawsuit with this kind of political fallout won't do that. And once one clears these procedural hurdles, there are substantive doctrines on deference to the executive branch that will come into play.
In short, this lawsuit should not have named Rumsfeld in his personal capacity (or his official capacity) — not because he shouldn't be held accountable, but because this lawsuit isn't properly structured to do so under the law as it now stands, or under a reasonable and reasoned theory for extension of the law. The rule of law extends to both procedure and substance.
(Please put on your "I'm not humor impaired" t-shirt before reading this.)
I have to disagree with ajay's proposed German translation (#63), for three reasons:
* Hauptamt is a "department" that is clearly subordinate to something else; for a free-standing agency, and particularly a cabinet-level government agency, Bü is probably more accurate, and certainly connotes "faceless bureaucracy" better than does Hauptamt
* Reichsheim means closer to "home federation" than to "homeland" (historical example: Geheimstaatspolizei, better known to us as Gestapo)
* It's more fun to make one's mangled Germanic nouns similar to those from the past, and especially to previous American mistranslations of the past. Thus, my preference is Geheimstaatssicheritätsbüro, leading to the even-more-amusing (at least, to those of us who've struggled through many documents from the Abwehr) Geheimstaatssicheritätsbürostrebener (almost-desperately-aspiring members of... )
All of which just shows that translation is more an art than a science. And that humorous ones are even more so.
Treason! Someone has defamed the Republic of Gilead's Geheimstaatsicheritätsbüro by claiming that there are no real threats justifying a 600-rounds-per-minute weapon! Pass me that roll of duct tape, will ya?
Randolph (76-77), the problem with your statements is that you're assuming that there exists some monolithic set of procedures, assumptions, etc. called "the publishing industry." I'm afraid not.
As a specific example, consider Dow-Jones Irwin, which publishes both WSJ and financial/business books (it also packages some books, but it does indeed have a book-publishing operation in Homewood, Illinois, just south of Chicago). An editor in the books division knows nothing at all about what our Gracious Hosts go through in getting blurbs, in cover design, in convention placement… the list goes on. And the less said about the non-editorial differences between trade fiction and trade/professional serious nonfiction, the better. (I've been there and done that; so, for that matter, has the lovely TNH.)
Instead, the "publishing industry" is an accretion of niches sharing a common package for words, underpaying the authors, and whinging about both profits and the poor taste of the American bookbuying public. Beyond those four commonalities, there really aren't any aspects that are universal, and darned few that one can claim even as applicable to a majority.
Freedom is the right to say "religious bigotry-based partisanship plus the old-boy network equals tyranny".
Or, to jump back one book:
All Congresscritters are equal, but some Congresscritters are more equal than others.
Don't get me started: My primary literary field was 20th century utopian fiction and its relationship to Orwell...
What's really saddest about this nonsense is this:
Torture can make anyone talk. What it cannot do is give the interrogator any assurances that the victim is telling the truth, or telling the truth without a bodyguard of lies... or that the victim really knows what is of interest to the interrogator.
And the less said about interrogator presuppositions of what the victim has to say, the better. Even civilians engaging in only "third degree" understand that; ever heard of a false confession?
Actually, one need not use a spirit of any kind to make the cream behave; turning this into a "mock carbonara" works out just fine. Modify Jim's recipe like this:
additional ingredients—one egg, lightly beaten
1/4 tsp freshly ground pepper (white or black)
additional steps—as the cream begins to bubble evenly across its surface (instead of just little bubbles at the edge), add the egg in a thin stream, stirring constantly. Do not allow the mixture to come to a full boil; instead, stir it constantly until it suddenly thickens, which should take about 1-2 minutes. If it does not suddenly thicken, it was too hot when the egg was added; it's not ruined, but must be gently heated for about 20 minutes to thicken it instead of boiling or it will get "grainy." Either way, add the pepper just before tossing with the pasta.
Note: Unlike some stove-top yolk-thickened sauces, in this instance the egg is cooked through.
I don't recall whether it was on the front page, but Jonathan Carroll's The Wooden Sea was reviewed—favorably—as fiction without a single mention of "genre". And it's a Tor book, so I suspect P & T would have remembered if it had been on the front page of the NYTBR...
In any event, The Wooden Sea also earned mention in 2001 as a "Notable Book," again without any reference to "genre."
All I can really say is that it's pretty obvious that nobody at TSA has any understanding of the difference between basic chemistry and chemical engineering. For example, a substantial proportion of the chemicals necessary to make [name of incendiary withheld] can be carried as separate powders and will not set off a current-generation detector, especially if broken down into multiple loads… and can be reconstituted and mixed in water if you're feeling suicidal.
And I'm wondering what a contact-wearer with allergies is going to feel like at the end of a transoceanic flight without his/her eyedrops, especially given the dry, ionized, lower-pressure air found in aircraft cabins. Gee—you think a creative lawyer might find a way to sue the airlines for eye injuries?
As noted above, using the px (pixel) element as the default measurement is just asking for trouble, particularly for font sizes (if less so for placement of elements). For example, try replacing
.comments-body {
font-family:verdana,arial,sans-serif;
background:#FFF;
font-size:11px;
font-weight:normal;
line-height:15px;
padding:10px;
}
with this
.comments-body {
font-family:verdana,arial,sans-serif;
background:#FFF;
font-size:1em;
font-weight:normal;
line-height:1.4em;
padding:0.8em;
}
which will draw default type sizes from the user's browser settings without having to choose an alternate style sheet. You have to be judicious in deciding which elements really can be sized relatively (font size, leading, and so on are good candidates) and which cannot (border width is a good example). However, it's very much a "fire and forget" solution: Once the style sheet has been established, it will automatically resize to the user's default. Thus, if Teresa wants to use 10pt type as her browser's standard, while Patrick wants to use 16pt type as his, that's fine—and each one should be fine.
To see one way (that has been pretty successful and stable for several years now with only occasional tweaking), you can look at the style sheet for my main website at
Authorslawyer.com
Unfortunately, the only CSS standard unit that is actually both relative and cascading from the user's default is the em. On the other hand, given Our Gracious Hosts' respective backgrounds in typography, that's no sillier than designing page layouts in picas in this day of proportional fonts…
Gee, it looks like I'll have to drive everywhere I go now. As an attorney, I keep privileged information on my laptop. However, if I allow the laptop to go into checked baggage, that information becomes accessible to others (particularly since I'm no longer allowed to securely lock check-on baggage before I get it to the airport). I will therefore have committed an ethics violation.
It can't be much better for others who keep confidential company information on a laptop. Let's say that an executive's laptop gets mysteriously damaged in transit, and that the trade secrets on that laptop get mysteriously leaked to competitors and/or the press. Wouldn't you just love to be the first-year associate at BigF*ckingLawFirm who is assigned to research whether checking that laptop with the Samsonite Gorillas just might constitute failing to take adequate care to keep trade secrets confidential?
Bottom line: As usual, somebody:
* Had the authority to make this kind of decision/statement,
* Had little or no experience with the practicalities of counterterrorist and counterintelligence methods and operations, and
* Had fewer operating braincells than I have children (two)
I'm probably the only semiregular whose first reaction to the title of this post was "the EP from the Lonelies? Kewl!"
But then, the album itself is not entirely unrelated...
Bauer typically claims that there's a DMCA issue when she writes her screeds. She's wrong, but somehow I don't find that surprising.
One explanation:
The DMCA has no relationship whatsoever to this contretemps. The DMCA relates only to copyright infringement, and I am not aware of any accusations of copyright infringement that have been made against AW. Copying someone's e-mail address is not a copyright infringement.
In a probably futile attempt to tie everything together, let me quote Justice Ginsburg from her opinion in New York Times, Inc. v. Tasini, 533 U.S. 483, 498 n.6 (2001):More to the point, even if the dissent is correct that some authors, in the long run, are helped, not hurt, by Database reproductions, the fact remains that the Authors who brought the case now before us have asserted their rights under § 201(c). We may not invoke our conception of their interests to diminish those rights.(emphasis added)
Although Justice Ginsburg was actually resolving a dispute over republication of magazine articles in online databases like Nexis, EBSCO, etc. in the authors' favor, the principle that she states applies equally to fanfic, and in fact to every variety of copyright infringement the defenders of which proclaim "but it's free publicity!" The whole point of copyright is that it is the author's exclusive right. That is what the Constitution authorizes Congress to do (Art. I, § 8, cl. 8):The Congress shall have power… to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;(capitalization modernized)
Justice Ginsburg is really asking "What part of 'exclusive right' did you not understand, you cretinous self-aggrandizing overrationalizing slimebags?" of a group of publishers more notorious than most for neither paying fully (or on time) nor properly crediting authors. Simultaneously, though, she was rejecting the prime justification for Napster that didn't falter immediately on "but we're cheap-ass SOBs": the claim that free redistribution of music is "free publicity" that will invariably benefit the artists by increasing their sales, on the theory that a rising tide lifts all boats. (Of course, that theory doesn't consider boats that have holes in them, or that get swamped by the increased wave action, or are torn from their moorings and swept into the rocks.)
Applying this sentiment to fanfic is left as an exercise for the student—primarily because preaching to the fanfic-converted is at least as frustrating as talking sense to a politician. And, before I became a lawyer, trying to talk sense to politicians was part of my job, so I think I know what I'm talking about!
On registration of copyrights:
First, Dave Bell's initial misconception is an easy one to make. Although the Copyright Act is not nearly clear enough, the registration requirement (since 31 March 1989) has applied only to US-originated works. If a work is accepted as in copyright by its nation of origin, and that nation of origin is not the US, the copyright holder can file suit in a US court against a US infringer without filing for a certificate of registration.
Second, keep in mind that "independent conception" is a complete defense to an instance of copyright infringement. Copyright infringement requires both "access" and "substantial similarity." Without access, there is no "copying." The law presumes that there was access to published works (although this can, in rare instances, be defeated with adequate evidence, but it's very difficult). Thus, the hypothetical on multiple registrations should really be answered "so what?"… even if the Copyright Office actually checked applications for originality. Note, too, that this is distinct from both patents and trademarks; independent conception is not a defense to a patent or trademark claim, and the PTO does examine applications for originality.
Upstream a ways, someone asked about the "poor man's copyright." Someone else quickly came up with the correct answer, but the provenance of the theory's popularity today says a great deal about writing scams. (Note: All of these comments relate specifically to US law.)
During the early 20th century, documents couldn't be admitted into court for the truth of what was contained in them without other "indicia of authenticity." At that time, the fee to register a copyright was vastly higher in relative terms than it is now—fairly constantly about $370 in 2004 dollars (except during the Depression). Since the "mail the pages to oneself" method was accepted by the Patent Office as evidence in patent proceedings, some genius somewhere decided that this would also work for copyright. That it never actually has worked has proven no barrier to the theory's popularity, even though copyright registration has dropped to $30 (going up to $45 on 01 July 2006).
However, in the 1950s, two reforms occurred that undercut even the patent-law background. First, the rules of evidence began to be relaxed, allowing documents kept in the ordinary course of business—such as lab notebooks for inventors, or submission records for authors—to be admitted for their own truth without addition indicia. Second, the Patent Office specifically changed its rules to make lab notebooks admissible for virtually all purposes. That didn't filter into "How to Be an Inventor" books until the early 1980s, though; I distinctly recall reading that in a 1977 or 1978 book on that topic from Arco Press.
Then, too, there's a huge difference between contemporary patents and contemporary copyrights. Contemporary patents are somewhat similar to 1909 Act copyrights in that they have no meaning without the equivalent of registration, whereas the contemporary copyright exists upon putting the work into a fixed form. (As I noted above, one can assert the copyright at that moment; enforcing it in court requires registration, and to answer another question a "jurisdictional bar" means that the court can never get jurisdiction under those facts—that is, can't hear the case until there's a certificate of registration in hand.)
The real problem is that, for both the arts and useful articles, ignoramuses continue to proclaim "secret formulae" for success. There are considerably more snake-oil salescreatures who make an excellent living through deception of writers, of musicians, of artists and photographers, of inventors than legitimate, authoritative sources who proclaim "there is no secret formula—it takes hard work, and even then there's no guarantee of success."
This relates to fan fiction in several ways. The most obvious is that there continues to exist a thread of belief that fan fiction will get one's writing noticed and provide a launch toward a career as a writer. More insidiously, there's the thread of belief that writing fan fiction is a way to share in the actual creator's success, even if only psychologically (and selfishly). Then there's the whole wish-fulfillment/"Mary Sue" aspect lurking simultaneously under the substance and the act of creating works of fan fiction. I could go on; and, in fact, I have (and that's just the watered-down-for-non-lawyers version that strips away a lot of the contextual material); but that's enough of my yakking for now.
There's an old Not Necessarily the News tidbit in which one of the reporters is interviewing a serial killer, and asks if after all the therapy he's had he would continue to kill. He answers, "Yes. I probably would." I'm a serial theorist. Draw your own conclusion. (Then, if you want it protected, register it.)
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