Amici Curiae: The Khadr Perversity, State Secession, and Luge Suppression Edition
Khadr’s Lawyers Blast Government’s ‘Perverse’ Reaction
The Harper government showed bias and bad faith and acted in a “perverse” manner by not requesting the return of Omar Khadr from Guantanamo Bay, or so say Khadr’s lawyer’s in their filings this week, according to The Globe and Mail. The lawyers’ move comes just days after the Canadian government asked its U.S. counterpart not to use evidence obtained by the Americans from Canadian officials in their pending prosecution of Khadr. The government was acting in response to the Supreme Court’s decision in Canada (Prime Minister) v Khadr, 2010 SCC 3, where the Court found that Khadr’s Charter rights had been violated, but stopped short of ordering the government to seek his repatriation, instead leaving the government a “measure of discretion” in responding to its ruling (see TheCourt.ca‘s take on the decision here). Though the blogosphere’s reaction to the Khadr filing has been surprisingly muted, the Globe praised the government’s move, describing it as “a right thing, though not the right thing” to do.
Olympic Committee Using Copyright to Suppress Luge Accident Video
The International Olympic Committee is claiming that bloggers and others who are making and posting video footage of the crash that killed Olympian Nodar Kumaritashvili last week are violating the U.S. Digital Millennium Copyright Act. While there is no suggestion that the IOC is acting out of anything but an intention to respect the privacy of Kumaritashvili’s family, Tactical IP’s Jason Fischer observes that “U.S. copyright law was not implemented to choke off the flow of facts and news reporting.” Kumaritashvili, a 21-year-old luger from Georgia, was killed last week when he lost control of his sled and crashed into an unpadded steel pole at over 140 km/hr. (HT: Legal Blog Watch)
Blind Gamer’s Access Suit Dismissed
The California judge who dismissed a blind video gamer’s claim in Alexander Stern v. Sony Corp. et al. clearly hasn’t bothered to check out Avatar. The case, briefly described here at TheCourt.ca, concerns Sony’s failure to provide, in MMORPG games like EverQuest, visual and auditory cues such as an “auditory description of the environment, a high-contrast 3D mode, and voice feedback.” Neither will Sony allow modifications by third parties that do introduce such features. The plaintiff claimed that Sony’s laxity inhibited his navigation of the games as well as his ability to participate in online auctions and gamer conventions.
In granting Sony’s motion to dismiss, the judge said that the company’s refusal to accommodate Stern’s disability was “not sufficiently connected to a place of public accommodation,” as required by the Americans With Disabilities Act and California’s Unruh Act, and that Sony was not engaged in positive discrimination, i.e., screening out blind gamers in order to deny them access to its conventions. The judge was as well persuaded by Sony’s floodgates argument that, “just as Barnes & Noble is not required to stock a Braille version of every book it sells, video game manufacturers should not have to adapt their products for the disabled.” The dismissal of Stern’s lawsuit was required on policy grounds, wrote the judge, as “to do otherwise would create potential liability under the ADA for manufacturers of all manner of products if those manufacturers failed to make available auxiliary aids allowing the entire panoply of individuals with disabilities the full enjoyment of their products.”
Recession Woes Lead to ‘Rebellious’ Juries in California
In a time of double-digit unemployment and shrinking benefits for those who do have jobs, California courts are finding it more difficult to seat juries for trials running more than a day or two, the LA Times reported this week. With some jurors being paid as little as $6 a day, judges are increasingly granting hardship exemptions: more than a quarter of all qualified jurors were released from service last year. “There’s a lot of tension, a lot more stress people are dealing with these days,” the paper quoted Gloria Gomez, director of juror services for the Los Angeles County Superior Court, as saying. In at least one case, the plaintiff and defendant both agreed to waive a jury trial after what the paper termed “mounting insurrection” by jurors who sought ways to get out of jury duty. “We can’t have a disgruntled jury,” one attorney told the Times, adding that the panel was “scary” and too volatile for either side to trust.
Justice Scalia Denies the Right to Secede
Secession is big (if academic) news again. Lucien Bouchard recently gave a hard kick to its Quebecois likelihood, and Texas governor Rick Perry waxed Tea-Party-ishly – and erroneously – about his state’s right to it. Now, US Supreme Court Justice Antonin Scalia has delivered an un-ex cathedra verdict on the legality of secession in the American context: “If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede.” Scalia was the lone respondent to a letter, sent to all nine SCOTUS judges, from screenwriter Dan Turkewitz, who is writing a “political farce that [has] Maine seceding from the United States and joining Canada.”
Turkewitz asked for the justices’ views on the constitutionality of state secession, his queries having been prompted by Professor Eugene Volokh’s recent demurrals (here and here) to the idea that the American Civil War’s conclusion necessarily implied that the question of secession had been settled in a legal sense. Says Volokh, “the results of a bloody civil war tell us nothing about the propriety of a Velvet Divorce” and that “poetical allusions to a peace treaty resolving one particular conflict can’t tell us what is right to do in our country today.”