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Sep 9, 2016

The Volokh Conspiracy

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[Eugene Volokh] Volokh Conspiracy Marketing Genius Award goes to the Union Street Guest House (Hudson, New York)
Aug 4, 2014

Thanks to the archived page on archive.org (page saved today), we see the following policy:

Please know that despite the fact that wedding couples love Hudson and our Inn, your friends and families may not. This is due to the fact that your guests may not understand what we offer – therefore we expect you to explain that to them. USGH & Hudson are historic. The buildings here are old (but restored). Our bathrooms and kitchens are designed to look old in an artistic “vintage” way.

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[Jonathan H. Adler] Should we cry for Argentina?
Aug 4, 2014

Argentina wanted to restructure its debt, but not all of its creditors went along. Argentina resisted, but the creditors prevailed in court, obtaining a judgment that Argentina could not pay its other creditors unless they were paid in full. Argentina appealed, but to no avail. (And along the way, questions were raised about Argentina’s candor to the courts.) As Jonathan Macey explained, the adverse judgment may be difficult for Argentina (and those creditors willing to accept dramatically reduced payments as part of a restructuring), but it was a victory for the rule of law.

Argentina refuses to pay the objecting creditors (largely hedge funds), and is apparently unwilling to make a deal, so it has defaulted.

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[Jonathan H. Adler] Did Texas execute an innocent man?
Aug 4, 2014

In February 2004, Texas executed Cameron Todd Willingham for the murder of his three children by burning down the family home while the children were inside. Years later, some continue to suspect Texasexecuted an innocent man. As I noted on this blog in 2009 (here and here), the state relied on questionable forensic evidence to make its case.

This week, theWashington Post published an extensive story raising still more questions about Willingham’s conviction. Taken together, thismaterials may not makea compelling case that Willingham was innocent, but it certainlydoes showthere should have been reasonable doubt about his guilt.

Whether or not the death penalty is just, as an abstract matter, there are serious problems with the way it is administered in much of the country.

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[Eugene Volokh] Speech as evidence, and rap videos
Aug 4, 2014

As I’ve noted before, generally speaking, a defendant’s speech — even if constitutionally protected — may be introduced as evidence of his legally significant intentions or knowledge, or as evidence that he was indeed the guilty party. Thus, the statement “I hate Joe Schmoe” is constitutionally protected, but if I’m on trial for killing Joe Schmoe and the prosecution wants to show that I’m the one who did it, the statement would be admissible as evidence of motives.

The same is true for political statements. Thus, for instance, statements of Nazi sympathy were constitutionally protected even during World War II. But if a defendant is on trial for treason for harboring his son (a Nazi saboteur), and the legal question is whether the defendant helped the son with the specific purpose of helping the Nazis (as opposed to just a father’s desire to help his son), the defendant’s speech is admissible evidence of that purpose.

Nonetheless, at times courts refuse to allow such speech as evidence, especially when the speech is seen as having relatively little probative value.

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[Eugene Volokh] Author who won case establishing Sherlock Holmes as largely in the public domain gets $30K in fees from Conan Doyle estate
Aug 5, 2014

See Monday’s Klinger v. Conan Doyle Estate, Ltd. (7th Cir. Aug. 4, 2014); for more on the underlying litigation, see here. An excerpt from the fees opinion (some paragraph breaks added):

The Doyle estate’s business strategy is plain: charge a modest license fee for which there is no legal basis, in the hope that the rational writer or publisher asked for the fee will pay it rather than incur a greater cost, in legal expenses, in challenging the legality of the demand.

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[Eugene Kontorovich] Palestines Egypt problem at the ICC
Aug 5, 2014

There is a lot of discussion, again, about the Palestinians accepting the jurisdiction of the International Criminal Court, and pursuing war crimes charges against Israelis. The Palestinian Authority obviously has some good lawyers, because it has not heeded the siren song of the human rights groups goading it to sign the Rome Treaty.

Aside from potential war crimes cases against Palestinians, which I do not think worries them too much (I suspect they are skeptical about enforcement) there is the scarier possibility for the them: that the Court would find it has no jurisdiction. Then the Palestinian’s diplomatic nuclear bomb would turn out to be a dud. I’ve written about some of the serious problems with ICC jurisdiction over Israeli settlements before. In a post at OpinioJuris yesterday, I point to a more fundamental problem the Palestinians face in accepting jurisdiction (see original for links):

Effective Control and Accepting ICC Jurisdiction

A recent and little-noticed development at the ICC suggests the Palestinian Authority may have a harder time getting the Court to accept its accession than many previously thought.

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[Eugene Volokh] Police officers have no constitutional right of privacy in records of their official misconduct
Aug 5, 2014

Should be pretty obvious, I think, but it had to be litigated. From Chasnoff v. Mokwa (Mo. Cir. Ct. June 11, 2014), an excerpt of the findings of fact:

1.

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[Eugene Volokh] Making children whom one is raising do chores even on threat of child abuse is not a federal forced labor crime
Aug 5, 2014

So held the Sixth Circuit in yesterday’s United States v. Toviave; an excerpt (some paragraph breaks added):

Defendant Toviave brought four young relatives from Togo to live with him in Michigan. After they arrived, Toviave made the children cook, clean, and do the laundry. He also occasionally made the children babysit for his girlfriend and relatives. Toviave would beat the children if they misbehaved or failed to follow one of Toviave’s many rules. While his actions were deplorable, Toviave did not subject the children to forced labor.

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[Eugene Volokh] Agist and agister
Aug 5, 2014

To agist is “to allow animals to graze on one’s pasture for a fee,” Black’s Law Dictionary tells us, and an agister is “a person engaged in the business of agistment.” There is also an “agister’s lien,” “a lien on the animals under an agister’s care, to secure payment of the agister’s fee.

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[Jonathan H. Adler] Is Halbig v. Burwell en banc worthy?
Aug 5, 2014

Ever since a divided panel of the U.S. Court of Appeals for the D.C. Circuit held in Halbig v. Burwellthat the PPACA does not authorize tax credits and cost-sharing subsidies for the purchase of health insurance on federally established exchanges, most commentators have assumed that the decision would be reversed by the full D.

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