Since I have graduated from law school and am now working at Wise Law Office, it’s incumbent upon me to mention that Ontario-area readers in need of legal counsel – particularly those in the southern half of Ontario – should consider us, as we are A) quite good and B) quite reasonably priced, and make an effort to keep costs down for our clients.

We don’t take on criminal or immigration matters at present, and specialize in family and employment law issues, but we’ll take most civil matters under consideration. (I am personally hoping for some intellectual property law actions to show up sooner or later.)

Toronto’s papers did not react particularly well to the recent superior court decision striking down prostitution laws, so I wrote about it.

Seeing those pages MGK posted from his reworking of “Civil War” reminded me of the story that was supposedly going to shake up the Marvel Universe forever. (So let’s see…Cap’s alive again, Spider-Man’s secret identity was restored, Iron Man’s brain was literally reset to pre-Civil War status, and the Registration Act was repealed. And most of the people involved were Skrulls anyway. But Black Goliath is still dead!)

But what really irked me at the time was Marvel’s claim that this was a more “realistic” look at how super-heroes would operate in the real world. In the real world, they said, super-heroes would be regulated and controlled. In the real world, there would be an authority governing them. In the real world, things would look like they did in “Civil War”.

Suuuuuure they would. That press conference where Tony Stark announced the Registration Act, and revealed his secret identity to wild applause from the crowd of reporters? Would have gone something like this.

“I’ve revealed my secret identity before, but always in ways I could go back on. This time, there’s no going back. I’m Tony Stark, and I’m Iron Man.”

“Mister Stark…didn’t you just say a few weeks ago that you were retiring from being Iron Man after the stress of your dual identity caused you to get drunk and publicly threaten to kill the Latverian Ambassador?”

“Um, yes, but that was evil magic, not alcoholism that–”

“Have you always been Iron Man? What about the time you claimed you ‘fired’ Iron Man for attacking government agents and murdering a Russian super-hero? Was that a lie too?”

“I think I should wait to speak to my lawyer about–”

“You don’t actually have any super-powers, Mister Stark, yet you’re claiming that the new Super-Hero Registration Act requires you to register because of your possession of the Iron Man armor. What happens if you decide to license or sell the armor? Does the new owner instantly become a law-breaker?”

“Well, these are questions that will be answered by the courts when–”

“As we understand it, you attempted to arrest Captain America for failing to register under the Act before it was even enacted into law. Isn’t that a blatant abuse of your new-found power?”

“This press conference is over.”

Soon, Iron Man would be forced to resign, the law would be tied up in the courts for years before being declared unconstitutional, and the Negative Zone prison would wind up being an expensive and unworkable boondoggle due to the use of shoddy and substandard contractors. Then Blaastar shows up at the United Nations, asking them to condemn America’s invasion of his sovereign territory…

If I were Barack Obama, and I wanted to convince 73-year-old Anthony Kennedy that, were he to step down, his replacement would be someone similarly moderate in judicial style – well, Obama’s Supreme Court picks make a lot more sense in that regard, don’t they?

Granted, it’s probably a moot point until Obama’s possible second term (Kennedy will be 77 by the end of it). But if I wanted to convince the Supreme Court’s “swing vote” to retire, that is how I would do it.

So Barack Obama has gone and nominated Elena Kagan as his next Supreme Court pick, which should surprise absolutely nobody; she was always going the frontrunner for the job once she got some experience in a major government position under her belt first, which was why Sotomayor got nominated last year instead of Kagan – the latter was still being seasoned. (Here, I’ll go one better: when Ruth Bader Ginsburg retires next year, it’ll be probably be Merrick Garland or Sidney Thomas replacing her. I’d prefer to see Pamela Karlan, Harold Koh or Leah Ward Sears – I would have preferred any of those over Kagan, frankly – but Obama is who he is.)

As for Kagan, the lefties proclaiming her “Obama’s Harriet Miers”1 are all on crack. Miers was an undistinguished family lawyer. Kagan is a former Harvard Law School dean. There’s kind of a difference. You can complain, perhaps, that Kagan hasn’t written a lot of articles, but so what? She’s clearly intelligent and frankly people arguing that she’s a stealth conservative are on even crackier crack than the “Obama’s Miers” crowd because people who are stealth conservatives don’t spend their lives working in liberal law schools and for Democratic presidents.

In short: she’ll be fine. Not a daring or exciting pick, but a solid one.

1. And why is everything in this administration “Obama’s X,” where X is something that happened to Bush? Bush was a disaster, Obama isn’t. NOT THE SAME THING. [↩]

I’ve gotten a few emails from people asking me about Citizens United v. FEC, and what I think about it.

So, in order:

1.) Corporations were already mostly free to engage in political speech anyway, thanks to Wisconsin v. RTL a few years ago, which said they had the right to engage in “issue” advertising. In other words, a corporation running an ad saying “vote for Senator Floozits” would be prohibited, but running an ad saying “Do you want to lose your job because of spotted owls? Tell Senator Floozits you don’t want to lose your job because of some vote on environmental regulation!” would be more or less kosher. The dividing line here is obviously a very fine one, and for the purposes of influencing an election it’s largely meaningless.

2.) After President Obama gave his State of the Union speech saying that foreign-owned corporations could now influence elections, a bunch of conservative organizations and the New York Times jumped up to play fact-checker, saying that parts of the U.S.C. said that foreign corporations weren’t allowed to buy electoral advertisements. First off, this is only a technicality; a domestically-owned subsidiary of a foreign corporation with a majority of foreign-born board members (or even simply license requirements allowing them to be influenced) can get past that restriction quite easily. But that’s before you get into shell corporations. (After Citizens dropped, I asked a friend of mine who’s big into business law how many ways he could think of to get around the foreign ownership restriction. He thought about it for a minute and then said he could think of six.)

3.) Some people have suggested that this decision is a victory for smaller corporations to enter into political dialogue, or that individual citizens can now form corporations for the purposes of generating political speech. These are both extremely stupid arguments. Smaller corporations by and large can’t afford to influence political dialogue on any meaningful level that wasn’t available to the individuals participating in them already, and individual citizens already had the opportunity to form advocacy groups (and have done so with some impressive successes).

4.) And yes, of course I think it’s a bad decision – mostly because I’m very much in favour of greater restrictions on corporate rights rather than less, because they are imaginary people, and imaginary people do not, as a rule, have moral character which informs their action. People complaining that campaign finance reform failed to stop corporate speech miss the point: ideally elections should be solely publicly funded. You sign up for your campaign, you get X dollars and a paid half-hour of media time somewhere to make your case for electability. Of course this will never happen, but so will lots of other things that are great, like McDonald’s bringing back the Shamrock Shake on a permanent basis. Why doesn’t the Supreme Court make a decision saying McDonald’s has to bring back the Shamrock Shake forever? And also the McRib.

5.) Additional commentary on the decision that I recommend can be found here.

Prostitutes in New Orleans are being categorized as “sex offenders.” What the fucking fuck?

I understand police wanting to cut down on prostitution; in a system where it’s not legal, it’s generally unsafe, and you want to disincentivize unsafe behaviour. (Of course, legalizing it would be simpler and safer all around, but God would get angry at you if you do that, apparently, so that’s off the table.) But there’s simply no way to characterize this method of action as anything other than incredibly cruel: jumping up the charge for prostitution from misdemeanour to felony alone has any number of horrible legal ramifications for those charged, and that’s before you get into the (often expensive) complications of being a registered sex offender, a classification invented to deal with the dangers posed by pedophiles and rapists rather than poor women who had to suck somebody’s dick so they could pay their rent.

And on top of that, there’s this abomination:

“The way Louisiana’s habitual offender law works, if you challenge your sentence in court and lose, and it’s a third offense, the mandatory minimum is 20 years. The maximum is life,” he explained.

So on top of the horrible abuse of law to make life worse for people who apparently didn’t have it bad enough already, let’s make it essentially impossible for them to challenge their unjust sentence. Way to go, Louisiana.

Hola, amigos! It is once again that time of the week where I, El Tyrano Magnifico, the greatest of all luchador lawyers, will read and examine your pleas and questions with the detail demanded of a true champion. Much as the time I fought El Hijo del Santo in a Five-Way Mexican Dance of Death, remembering each of his three primary weaknesses and planning my attack, so shall I carefully consider each of your questions. That is the eternal pledge of El Tyrano Magnifico!

Jaime Muniz, who it says in the letter is nine years old, writes to ask:

Dear El Tyrano Magnifico: I was wrestling at school and one of my classmates had me in a rattlesnake leglock. I was slapping the ground to give myself the will and the strength to reach the bottom rope, but the referee said that I had tapped out and thus lost the match, even when I had clearly not submitted! Is this not improper?

Dear Jaime: Sadly, you have no recourse. Ever since Shamrock v. Hart was dismissed for appeal in 1998, it has been a matter of settled international law that slapping a mat, floor, ground, or any other horizontal surface qualifies as a submission, even if the words “I give up” are not uttered. In future, you may wish to consider slapping a wall or human face instead in order to deal with the grueling pain of a rattlesnake leglock. If these are not available, consider filing an injunction with your local judge.

Now, Arina Ortega writes:

Dear El Tyrano Magnifico: My papa works very long hours at the butcher’s, but lately he complains that he is not getting paid for the extra hours he must work. Surely there is some recourse for us? I am very hungry and would like to eat something other than pinto beans, which give me abdominal pressures.

Dear Arina: Your papa is deserving of overtime, but if he has signed a contract forced upon him by the rudo butcher shop manager, he may have unfortunately ceded his right to overtime payment. But all is not lost! If your papa – or a designated counsel working on his behalf – can force the butcher shop manager into a sleeper hold, when the manager passes out from lack of blood to the brain, he will be deemed to have agreed to a rewriting of the terms of the contract! For maximum legal security, I recommend putting the butcher shop manager in a sleeper hold while he is in a police station, local notary’s office or steel cage.

Also, dear Arina, you may qualify for pro bono legal representation by El Tyrano Magnifico, or perhaps by one of the Tyranitos, my assistants here at the firm of Magnifico, Gomez and El Terror. Contact me immediately and we shall set up an appointment! Now who is the next letter from…?

Dear El Tyrano Magnifico: Fool! While you address the questions of simpering children in your pathetic mailbag, I have stolen your precious Legal Society Championship Belt! I wear it now and it glistens around my midsection! HA HA HA! Do you hear my laughter, El Tyrano Magnifico? I laugh at your respect for law and order! HA HA HA! Your gleaming belt is nothing more than a trophy of my success!

Sincerely, Vampiro Ultimate X

My fists quake with rage! Damn your eyes, Vampiro Ultimate X! Your misdeeds have gone unpunished for far too long, even as you have exceeded the villainy of Vampiro Ultimate IX and Vampiro Ultimate VIII, and indeed all the previous Vampiro Ultimates with the possible exception of IV! And now you steal the Legal Society Championship Belt? Without ever having passed a bar exam? Without ever having had proper schooling? The duty of a luchador lawyer is to serve as counsel to the utmost degree, Vampiro Ultimate X, and that is something you cannot understand for you do not know the secret martial paths of the courtroom!

This time is for me to read mail from all my little amigos who seek legal knowledge, Vampiro Ultimate X, and you have trespassed upon sacred ground, at least metaphorically! For this there can be no forgiveness! I challenge you to a barbed wire match, Vampiro Ultimate X! In the deadly tangle of barbed wire, I shall call forth many witnesses, who will testify as to your inadequacy when I place you in my patented1 Hyper Dragon Armbar! You will cry for mercy, Vampiro Ultimate X, but no mercy will be forthcoming so long as no one believes you are reasonably deserving of mercy! That is the promise of El Tyrano Magnifico!

1. Patent filed 1989, patent no. 89326-032. [↩]

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.

continue reading "The Odd Legal Ramifications Of Dmitri Smerdyakov"

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.