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Archive for October, 2011

Chapter IX of Natural Law and Natural Rights begins with a reflection on the need and justification for authority. Finnis writes:

[T]he greater the intelligence and skill of a group’s members, and the greater their commitment and dedication to common purposes and common good, the more authority and regulation may be required, to enable that group to achieve its common purpose, common good.

For . . . the dedicated member of the group will always be looking out for new and better ways of attaining the common good, of co-ordinating the action of members, of playing his own role. And the intelligent member will find such new and better ways, and perhaps not just one but many possible and reasonable ways. Intelligence and dedication, skill and commitment thus multiply the problems of co-ordination, by giving the group more possible orientations, commitments, projects, ‘priorities’, and procedures to choose from. And until a particular choice is made, nothing will in fact be done. . . .

There are, in the final analysis, only two ways of making a choice between alternative ways of co-ordinating action to the common purpose or common good of any group. There must be either unanimity, or authority. There are no other possibilities.

* * *

Now there is no need to labour the point that unanimity about the desirable solution to a specific coordination problem cannot in practice be achieved in any community with a complex common good and an intelligent and interested membership. . . .

John Finnis, Natural Law and Natural Rights, IX.1.

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Earlier this week, the Fourth Circuit decided an appeal in a dispute between Bethesda Softworks, LLC and Interplay Entertainment Co.

Bethesda sought to prevent irreparable harm arising out of Interplay’s alleged copryight infringement related to the Fallout video game. The district court (Chief Judge Chasanow, D.Md.) denied a preliminary injunction and the Fourth Circuit affirmed without hearing argument.

The unpublished opinion  in Bethesda Softworks, LLC v. Interplay Entertainment Co. was issued by a panel consisting of Judges Niemeyer, Duncan, and Agee. For  more details on the opinion see, Shawn Sullivan’s write-up.

When a couple mentions of this case popped up on my Twitter feed, I wondered how I had missed the decision, which apparently mattered to others in addition to the parties themselves. The reason I did not address it earlier is that it was decided without argument, which means that there is nothing that any of the judges saw as particularly difficult about the case, or anything about the case that would have benefited from development through oral argument.

The opinion relies in part on authority from outside of the circuit. For example, in resolving Bethesda’s lead argument–that irreparable harm was established by the parties’ contractual stipulation that breach would result in irreparable harm–the opinion relies on a Tenth Circuit decision and distinguishes a Second Circuit decision. If there is not a Fourth Circuit authority about the circumstances in which a contractual stipulation suffices to establish irreparable injury, that would seem to be a good reason to have ordered argument in the case. And if there is such authority, then the opinion should have cited that binding authority rather than the merely persuasive authority from the Tenth Circuit.

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The Richmond Times-Dispatch reports on an awkward encounter today between Richmond Mayor Dwight Jones and various occupiers at Kanawha Plaza in downtown Richmond. Earlier in the day, Jimmy Barrett of WRVA interviewed William & Mary law professor Timothy Zick about the legal rights of the city vis-a-vis the occupiers. Bottom line: The occupiers are breaking the law and Richmond has the legitimate authority to enforce the law by removing the occupiers.

The legal analysis is not particularly difficult. The city’s ban on overnight camping in public parks is a content-neutral time-place-manner restriction that leaves open ample alternative means of communication.

The protesters obviously seek to occupy the moral high ground vis-a-vis Wall Street and plutocrats and the like, but they also appear to wish to occupy the moral high ground with respect to the law governing use of the city parks. That seems like a more difficult task.

According to the Times-Dispatch story linked above, “[occupier] Kadrich said that the occupiers were ‘following all legislation that we term to be wholly just.’ He added that if given an ultimatum to leave the plaza by a certain date, many protesters may exercise ‘civil disobedience.'” Yet the protesters already are engaged in civil disobedience. Regardless of whether the city forces the issue, they are in violation of a valid law.

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A footnote in an opinion issued earlier this week appears to resolve an implicit intra-circuit split over the government’s ability to appeal a pre-trial order dismissing a particular count or counts in an indictment when the dismissal is based on a stipulation that the government will be unable to prove (or will not seek to prove) certain facts.

(more…)

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The Fourth Circuit today denied a petition for review of a decision of the Board of Immigration Appeals denying cancellation of removal to two Guatemalan parents classified as alien smugglers for facilitating the illegal entry of their four children into the United States. Judge Wilkinson wrote the published opinion in Ramos v. Holder, which was joined in by Judges Wynn and Floyd. The opinion begins as follows:

Ricardo Paz Ramos entered the United States illegally from Guatemala in 1989, and his wife Berta and their four children followed. Each child’s arrival in the United States involved asimilar sequence of events—Ricardo and Berta sent several thousand dollars to the child at a hotel in Mexico, who arrived illegally in the United States promptly thereafter. The Immigration Judge (“IJ”) and Board of Immigration Appeals(“BIA”) both determined that Ricardo’s and Berta’s monetary assistance amounted to “alien smuggling” pursuant to section 212(a)(6)(E) of the INA, and that they thus lacked the “good moral character” necessary for cancellation of removal. Because the IJ and BIA properly interpreted and applied the”alien smuggling” provision, we deny the petition for review

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The Fourth Circuit issued a published opinion today in United States v. Donnell reversing a sentencing determination that treated a Maryland conviction for second-degree assault as a violent felony based on facts set forth in a statement of probable cause not expressly incorporated into the statement of charges. The opinion was unanimous. Judge Davis authored the opinion, which was joined in by Judges King and Keenan.

The panel that issued this opinion is the same panel that heard oral argument in the U.S.S. Nicholas piracy case. That was the second case argued that morning; Donnell was the first. I recall from the argument that federal public defender arguing on behalf of Donnell, Paresh S. Patel, was a particularly effective oral advocate.

One of the key issues in the appeal is whether a statement of charges incorporated a statement of probable cause. That deceptively simple formulation of the issue masks some unclarity in Fourth Circuit precedent about what constitutes incorporation, some of which is addressed in the Donnell opinion. The difficulty facing the Donnell court, it appears, is that prior panels had finessed (or neglected) an important distinction in describing the manner in which statements of probable cause are or are not incorporated into a statement of charges under Maryland law. To see how the Donnell opinion resolves the issue, read the whole thing and decide what you think.

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Lyle Denniston reports at SCOTUSBlog that five of the six health care cases have been scheduled for discussion at the Supreme Court’s November 10 conference. Just in time for our November 11 “Everything but the Merits” Conference at UR Law School . . .

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