IP Osgoode has a sane and reasonable summary of the Jack Kirby copyright reversion case here.

Sonia Sotomayor, commenting during oral argument in the Citizens United case which challenges campaign finance restrictions on corporations:

“[Judges] created corporations as persons, gave birth to corporations as persons… There could be an argument made that that was the court’s error to start with…[imbuing] a creature of state law with human characteristics.”

That is huge. Applying individual rights to corporate entities is a legal standard that’s been the norm for almost as long as the modern western world has had them; that a judge would challenge this at a Supreme Court level, even in oral argument, is massive. There’s no other way to describe it.

Sonia Sotomayor might well be the dreaded uberliberal the Republicans were terrified of.

Recently there has been an internet kerfuffle about a scene in Amazing Spider-Man #603, wherein the Chameleon, while impersonating Peter Parker, has sex with Peter’s roommate Michelle (because she of course believes him to be Peter). A number of fans have called out writer Fred Van Lente for using rape as a plot device in a comic book. So people naturally emailed me (a lot of people), all to the general gist of “hey, is that rape?”

The answer is: maybe.

My weekly TV column is up at Torontoist.

Also, now that I am the Managing Editor and Big Chief Hoo-Hah at thecourt.ca, I don’t really write posts there any more so much as I run the place. That having been said, this post about the Prime Minister’s office appealing the Khadr case to the Supreme Court by new staffer James Gotowiec is, I think, a hell of a read.

For those interested, this week at The Court I wrote about the failure of an objective reasonable person standard to take race into account. So, you know: thrills!

I don’t often pass along my work at TheCourt.ca here, but now that I am Managing Editor of the site and therefore incredibly important it seems only proper to pass along my commentary on that case where the young Jehovah’s Witness sued the government for not being allowed to die and that case where the SCC found that advertising on public transit must be considered protected speech and that case where a Hutterite enclave requested drivers’ licenses that didn’t have photographs on them.

Someone emailed me about this municipal tax change in Los Angeles, wherein “creators” are going to be taxed at the rate of “occupations and professions” rather than “wholesale and retail.” (WARNING: link contains lengthy comments section dominated by possibly-retarded Texan who turns the entire thread into a debate about whether or not Barack Obama is a secret Marxist and why Texas would be fine and dandy were it to secede.)

Thanks to Creators Syndicate and other such groups flexing their muscles, back in the 1990s creators were classified as “wholesale and retail” business, which has a lower tax rate. In Los Angeles, this matters, because a lot of creative muscle resides in the city. Anyway, Creators Syndicate is predictably throwing a hissy and threatening to leave. I particularly liked how Rick Newcombe, in his Wall Street Journal moanfest, complains that the city is “ignoring its own ruling” and that “the city is not bound by past rulings – only taxpayers are.”

Well, yes, of course that’s the case; any ruling on a tax situation in Los Angeles is going to be issued by the city clerk. Is the city clerk a judge? No. Are they a neutral party? No. The city clerk is an employee of the city of Los Angeles, and can reverse a previous ruling pretty much at whim because they’re only really expressing the tax preferences of the city. Sometimes those tax preferences will be “well, fuck it, we don’t want to get into a fight with Creators Syndicate right now.” Sometimes they won’t be.

And let’s be honest: classifying the job of creator as “wholesale and retail” is the most obvious kind of tax dodge in the first place, the sort of ruling that reeks of back-room gladhanding and favour-trading. Creators don’t sell their products on a wholesale or retail basis; they’re either working on a contracted basis or independently generating product that will be sold “wholesale or retail” only very rarely. The professions are more akin to what “creator” is; this reversal is merely a return to sensible tax policy, which is of course why people are screaming bloody murder.

After tonight’s SYTYCD elimination, I went over to Television Without Pity’s forums, mostly because I am a masochist. In between the usual ranting about how Philipchbeeb is ruining the show for them and so forth, I also found the usual bevy of conspiracy theories. Melissa is older than 30 because she has lines on her face! They are manipulating the Bottom Three couples so that people’s votes don’t matter! And so forth. (These complaints are always trotted out for American Idol as well, but I don’t care about Idol so I can let them go.)

I would just like to make it clear: these people are full of crap. I mean, they are full of crap on the level of the guy at that party who tells you that Kentucky Fried Chicken changed their name to KFC because they weren’t legally allowed to call it “chicken” any more, because they invented centipede-chickens with ten drumsticks apiece. They are graduates of the School Of Somebody Told Me.

How do I know they are full of crap? Because 19 Entertainment and Fox have created a happy fun television show that A) invites contestants to compete for a large cash prize, and B) invites the public to vote, at cost, to determine winners. In the case of both groups, the contestants, the show is therefore responsible to them to present the rules of the show publicly and openly, and to abide by those rules. Were the producers to not do this, then they would be liable to both groups; any contestants who felt slighted would be able to sue for the “loss of a chance,” which is well-established in contract law as potential grounds for a suit. There would similarly be grounds for a class action lawsuit on the public’s behalf.

This is why every episode ends with a disclaimer in small print admitting that the show’s producers might just possibly monkey around with partner selection and dance selection as they see fit. (I snark about non-random dance selection as much as anybody else, but if they say the dances are randomly assigned, they’re either assigning them purely randomly, or assigning them randomly and then offering a “trade” option of some sort that the dancers can take advantage of if they wish, or something along those lines.) It’s all about liability.

Seriously, it’s a multimillion dollar television franchise. They’re not gonna kill the cash cow with something that stupid.

People sometimes try to convince me that Mark Steyn’s drivel is worth taking seriously. As counter, I suggest people read his latest screed for Maclean’s wherein he bravely tackles the demon that is empathy:

Then-senator Obama voted against the confirmation of Chief Justice Roberts because the nominee said he saw the judge’s role as that of “umpire.” The President wants someone less hung up on the rule book. He likes to cite the case of Lilly Ledbetter, who sued Goodyear Tire for discrimination but ran up against the pesky old statute of limitations. An “empathetic” judge would presumably say, “Screw the statute of limitations.”

Now, Steyn is actually pretty smart despite his lack of ethics, so presumably he knows that the issue in Ledbetter v. Goodyear wasn’t whether or not to get rid of “the pesky old statute of limitations” but how the statute of limitations was applied, because the question was whether the statute of limitations should start running from the point that the pay discrimination that Ledbetter suffered began, or whether it should start running from the point where she became aware of it. The conservative wing of the Supreme Court decided against all common sense that it should be the former, and that the clock on Ledbetter’s ability to sue in fact began years before she even knew that she was being discriminated against.

Again, Steyn probably knows this. But I doubt he cares; it’s just one more bullet in his gun filled with the usual cheap potshots about how Palestinians are actually savage animals (which he knows because he was in the West Bank for a week this one time and he totally saw tons of convenience stores with “Martyr of the Week” posters, and just because Steyn was just busy completely mischaracterizing a well-known and entirely public legal decision two paragraphs previously, why would we ever suspect him of being a fabulist in this regard?) and then accusing Barack Obama of sympathizing with terrorists in his Cairo speech (you know, the one where he bluntly told the Arab world that violent extremism wasn’t just unacceptable, but also that Holocaust denialism was ridiculous, and that Palestinians needed to come to grips with the fact that the Israelis aren’t going anywhere, and that Muslim countries need to better ensure women’s rights).

He’s a cheap hack. He always has been, he always will be. Don’t ever forget it.

Top comment: Y’know, I notice that people keep angrily bringing up the fact that you called Steyn a cheap hack, but no-one seems to care that you called him a malicious asshole, too. – Skemono

…the American Supreme Court ruled 5-4 that police may question a defendant without a lawyer present.

Naturally, the freedom-loving conservatives on the Court saw no worry about the fears of the tyrannical state this time around (in a police powers case? Shocking). Antonin Scalia, well-known as that brilliant jurisprudential mind,¹ wrote in his decision that “there is little if any chance that a defendant will be badgered into waiving his right to have counsel present during interrogation.”

To which all I can say is uh-huh.

1. You know he’s brilliant because everybody keeps telling you he’s brilliant! [↩]

1.) My weekly TV column is up at Torontoist.

2.) My article this week for The Court is about R. v. Middleton, a sentencing case. Be forewarned the topic matter is so dry I nearly fell asleep twice while writing it.

3.) Finally, I made a rare PODCASTING APPEARANCE on Hour 42 yesterday, wherein I articulated poorly about the potential of Gooch the Dark Wonder Dog, among other things.

In the fingerprinting post on Monday, will writes:

I’m still not clear on how the police having my fingerprints — or my DNA — on file could be used to oppress me.

Abandoning the dire fantasies of totalitarian government – for that is what they largely are – we can find the idea of oppression in harm inflicted on the citizen that is, by and large, unintentional. I’m not talking here about the Glenn Beck school of “I have to pay taxes and so I am oppressed.” I’m talking about mistake.

Like I said before: I’m not anti-cop. Cops do a hard job and most of the time they get it mostly right. But they never get it entirely right. There are always people who slip through the cracks of proper procedure. I spent a year working for the Innocence Project at Osgoode, helping people challenge convictions they argued to be unjust, and in every case where I think there was someone genuinely innocent convicted of a crime, there was a common thread: the police had already decided that this person was guilty.

Again: the police are right, most of the time, when somebody is guilty. But not always. And it’s the not-alwayses that become the horror stories of the justice system. The spouse isn’t always the person who murders their partner, regardless of how common it is for that to be the case (and it is common, believe me). The black drug dealer might be a drug dealer, but it turns out he didn’t kill anybody. And so on and so forth.

And so this is how having your fingerprints on file can be used to oppress you: you are a suspect in a murder that you did not commit. The police regard you as the likely culprit. They look for evidence to tie you to the crime, and because you knew the guy, hey what do you know your fingerprints are all over the place. The police have your fingerprints already, which paints you in the eyes of a jury as a shady individual. That combination of circumstantial evidence and worsening of your image is enough to get you sent away to a lengthy jail term for a crime you did not commit. And you can’t appeal based on the evidence being wrong – the justice system doesn’t work like that. You can only appeal on points of law, not points of fact (IE, you can argue that your fingerprints were wrongly introduced as evidence because the potential for creating bias outweighed the probative value of the evidence – but, in all seriousness, good luck with that approach).

The police have a tough job. Sometimes they take shortcuts. It happens, we shouldn’t really judge them for it, and most of the time it doesn’t hurt anybody – except when it does. That’s why we need institutional safeguards built into the system to make sure that poor evidence collection methods aren’t abused. And that’s why de facto fingerprinting of individuals who haven’t even been arrested for a crime is wrong.

The Tories introduced legislation that would allow police to collect fingerprints before a person is charged with a crime and would not require the police to destroy those fingerprints should the person never be charged. The Tories argue that this is about “streamlining” the affairs of police to make them more efficient. But here’s the thing. Consider this quote from Rob Nicholson, the Justice minister:

“Crime is constantly evolving in Canada so it is crucial that our criminal justice system evolves with it.”

Now, I like Rob Nicholson. But what the fuck does that even mean? Let’s be blunt: the only reason for this legislation is to give police the power to collect fingerprints of people who can’t be proven to be criminals, or even can’t be charged with a crime because there’s reasonable and probable grounds to charge them with a crime. How comfortable are you with the police having that power? Because I’m not.

I’m not reflexively anti-cop, or even generally anti-cop. I think cops in Canada do a valuable and difficult job and most of the time they do it very well. But here’s the thing: since policing is always going to be a political hobbyhorse of one stripe or another, the cops always feel a bit besieged. That sucks and it’s not fair to them, but it’s not fair that doctors are expected to be miracle-workers or that lawyers are fodder for jokes about amorality when we all know that we should be making those jokes about accountants instead.¹

But the practical public downside of the cops feeling besieged is this: they tend to close ranks when one of their own is accused of wrongdoing, be that accusation merited or not. Usually it isn’t. But when it is, they protect bad actors within the system. And I this is exactly why I don’t like giving the police additional powers that are obviously and blatantly fodder for abuse – and this is definitely an abusive power just waiting to be used improperly.

Top comment: I look forward to you getting telepathic judges and super-speed cops to deal with the rampaging mutant criminal element. – lilacsigil

1. Take that, beanpushers. [↩]

My weekly TV column is up at Torontoist. Also, I have a column regarding the SCC’s lengthy delay in deciding R. v. Suberu here. Guess which one has F-bombs in it!

My weekly TV column is up at Torontoist. But ALSO, I have a point/counterpoint column about the Tamil protests here. And on top of that, my first summer column for thecourt.ca is here, although it’s really just a longer, more serious-sounding rehash of the diversity arguments from last week.