#201  
Old 03-29-2013, 02:25 AM
ChuckF's Avatar
ChuckF ChuckF is offline
liar in wolf's clothing
 
Join Date: Feb 2005
Location: Frequently about
Posts: XXCDXXX
Images: 2
Default Re: SCOTAL Itch

Nah, not really. I don't know if there's ever been analysis; there probably has. There's also a lot of time between oral argument and the opinion. Lots of discussion and negotiation goes on behind the scenes as the justices exchange opinion drafts and try to find a majority. It's not like oral argument is the last thing that happens that can influence an outcome.
Reply With Quote
Thanks, from:
Janet (04-04-2013), LadyShea (03-29-2013), Nullifidian (03-29-2013)
  #202  
Old 03-29-2013, 06:06 AM
The Man's Avatar
The Man The Man is offline
Safety glasses off, motherfuckers
 
Join Date: Apr 2009
Location: Sarasota, FL
Gender: Bender
Posts: MVCMLVI
Default Re: SCOTAL Itch

SCOTUS rules unanimously that the federal government can be held liable for abuses intentionally committed by police officers and prison guards.
__________________
Cēterum cēnseō factiōnem Rēpūblicānam dēlendam esse īgnī ferrōque.

“All for ourselves, and nothing for other people, seems, in every age of the world, to have been the vile maxim of the masters of mankind.” -Adam Smith

last.fm · my music · Marathon Expanded Universe
Reply With Quote
Thanks, from:
chunksmediocrites (03-30-2013), Crumb (03-29-2013), Dingfod (03-29-2013), Ensign Steve (03-29-2013), Janet (04-04-2013), LadyShea (03-29-2013), Pan Narrans (03-29-2013), SR71 (03-29-2013), Watser? (03-29-2013), Ymir's blood (03-31-2013)
  #203  
Old 03-29-2013, 07:01 PM
Stephen Maturin's Avatar
Stephen Maturin Stephen Maturin is offline
Flyover Hillbilly
 
Join Date: Jul 2004
Location: Juggalonia
Posts: MXDXXVI
Default Re: SCOTAL Itch

Quote:
Originally Posted by huntress View Post
I fear you are right, Chuck. Fuckers.

d
Damn, d, it's great to see you!

Quote:
Originally Posted by ChuckF View Post
Imma call it now.

Section 3 of DOMA will be struck down on federalism grounds, reasoning that the regulation of marriage is traditionally left to the states.
I'm not very familiar at all with the lower court proceedings, but I'm not sure that can serve as an independent basis for shooting down Section 3. Marriage regulation being traditionally a state matter appears in the Court of Appeals' opinion only as one component of a multi-faceted equal protection analysis. It came up in the context of a patently idiotic contention that Section 3 can be sustained based on the federal government's alleged legitimate interest in promoting uniformity of marriage, whatever the fuck that means.

As a separate argument, the federalism angle would be a lot more compelling if Section 3 actually purported to supersede some component of state marriage law. Seems to me it doesn't, at least not in the context of this case.

Quote:
Originally Posted by ChuckF View Post
The key question - the level of scrutiny to be applied to state actions that discriminate on the basis of sexual orientation - will be left unresolved (except in the Second Circuit, where the Court of Appeals decision in Windsor said that intermediate scrutiny is appropriate).
Reading (then re-reading) the sections of the argument transcript regarding jurisdiction got me all :eyesbleed:, but it looks like they want to reach the merits. When the House of Reps' lawyer was about 2/3 of the way through his argument, the justices were p. much out of jurisdiction questions.

I'll say that three or four justices (Ginsburg, Breyer, Sotomayor, Kagan) will come out in favor of intermediate scrutiny. Kennedy will provide the fifth vote to affirm, writing something along the lines of, "We need not decide whether laws affording disparate treatment based upon sexual orientation are subject to heightened review because Section 3 of DOMA does not even pass muster under the 'rational basis' test."

So yeah, I agree that they won't be able to resolve the level-of-scrutiny issue.

Quote:
Originally Posted by ChuckF View Post
Hollingsworth's cert will be dismissed as improvidently granted due to defects in standing for the Prop 8 proponents, leaving the lower court's decision intact, so gay marriage will be legal in California, at least until those defects are cured with new parties.
I think dismissal as improvidently granted is highly unlikely. Can't recall even one DIG in a high-profile case that made it all the way to oral argument, and the only support for the idea appears to be a couple of offhand comments from Kennedy.

I've changed my mind on the standing issue. Some justices might want to decide the case based on lack of standing, but it's hard to see how. I mean, no one disputes that the state has standing to defend Prop 8, and it doesn't look to me like any justice seriously doubts that the state can delegate that authority. The California Supreme Court held that the state made just such a delegation in this case.

If the Court can't get to 5 on lack of standing, the outcome of a merits decision will likely depend on whether or not Kennedy considers this case similar enough to Romer to justify shooting down a voter-approved amendment to a state constitution. That there's a coin flip.

Quote:
Originally Posted by ChuckF View Post
There's a pretty persuasive school of thought that nobody's minds are really made up at oral argument. It's kind of a quaint old tradition that's not really that important. The heavy lifting is done in the brief submissions and the case law.
Oral argument is a dog and pony show, except without the cute dogs and ponies. Its only real purposes in this day and age are giving judges an outlet for their dyspepsia-induced aggressions and feathering the nests of bill-by-the-hour litigators.

Don't get me wrong -- arguments can be and generally are fucktons of fun. However, the notion that they have any real effect on a case's outcome is more than a little lulzy.
__________________
"We can have democracy in this country, or we can have great wealth concentrated in the hands of a few, but we can't have both." ~ Louis D. Brandeis

"Psychos do not explode when sunlight hits them, I don't give a fuck how crazy they are." ~ S. Gecko

"What the fuck is a German muffin?" ~ R. Swanson

Last edited by Stephen Maturin; 03-29-2013 at 07:11 PM.
Reply With Quote
Thanks, from:
ChuckF (03-29-2013), chunksmediocrites (03-30-2013), Clutch Munny (03-29-2013), Dingfod (03-30-2013), huntress (03-30-2013), Janet (04-04-2013), Kael (03-29-2013), LadyShea (03-29-2013), livius drusus (03-30-2013), Nullifidian (03-29-2013), Qingdai (03-30-2013), Sock Puppet (04-01-2013), SR71 (03-29-2013), The Man (03-29-2013), viscousmemories (03-30-2013), Ymir's blood (03-31-2013)
  #204  
Old 03-29-2013, 07:37 PM
ChuckF's Avatar
ChuckF ChuckF is offline
liar in wolf's clothing
 
Join Date: Feb 2005
Location: Frequently about
Posts: XXCDXXX
Images: 2
Default Re: SCOTAL Itch

Ok, fine, Maturin. I bet you one long-form birth certificate and one $12 donation to the :ff: animule welfare fund (enough for one of your fancy :pipe: give-us-money-to-wash-your-own-dog exclusive country club events).
Reply With Quote
Thanks, from:
Adam (03-29-2013), BrotherMan (03-29-2013), chunksmediocrites (03-30-2013), Clutch Munny (03-29-2013), Crumb (03-29-2013), Dingfod (03-30-2013), Janet (04-04-2013), Kael (03-29-2013), LadyShea (03-29-2013), livius drusus (03-30-2013), Nullifidian (03-29-2013), Qingdai (03-30-2013), Stephen Maturin (03-29-2013), The Man (03-29-2013), Watser? (03-29-2013), Ymir's blood (03-31-2013), Zehava (03-31-2013)
  #205  
Old 03-29-2013, 07:53 PM
Stephen Maturin's Avatar
Stephen Maturin Stephen Maturin is offline
Flyover Hillbilly
 
Join Date: Jul 2004
Location: Juggalonia
Posts: MXDXXVI
Default Re: SCOTAL Itch


.................................................. ..................:aristea:
__________________
"We can have democracy in this country, or we can have great wealth concentrated in the hands of a few, but we can't have both." ~ Louis D. Brandeis

"Psychos do not explode when sunlight hits them, I don't give a fuck how crazy they are." ~ S. Gecko

"What the fuck is a German muffin?" ~ R. Swanson
Reply With Quote
Thanks, from:
Adam (03-29-2013), BrotherMan (03-29-2013), ChuckF (03-29-2013), chunksmediocrites (03-30-2013), Clutch Munny (03-29-2013), Crumb (03-29-2013), Dingfod (03-30-2013), Janet (04-04-2013), Kael (03-29-2013), LadyShea (03-29-2013), livius drusus (03-30-2013), Nullifidian (03-29-2013), Qingdai (03-30-2013), Stormlight (05-01-2013), The Man (03-29-2013), Watser? (03-29-2013), Ymir's blood (03-31-2013), Zehava (03-31-2013)
  #206  
Old 03-29-2013, 08:37 PM
BrotherMan's Avatar
BrotherMan BrotherMan is offline
A Very Gentle Bort
 
Join Date: Jan 2005
Location: Bortlandia
Gender: Male
Posts: XVMMXVIII
Blog Entries: 5
Images: 63
Default Re: SCOTAL Itch

Dude. Don't even play with my emotions. I was packing my bag before I realized I'd never make it in time.
__________________
\V/_
I COVLD TEACh YOV BVT I MVST LEVY A FEE
Reply With Quote
Thanks, from:
Clutch Munny (03-29-2013), Dingfod (03-30-2013), Janet (04-04-2013), livius drusus (03-30-2013), Nullifidian (03-29-2013), Stephen Maturin (03-29-2013)
  #207  
Old 03-29-2013, 10:14 PM
The Lone Ranger's Avatar
The Lone Ranger The Lone Ranger is offline
Jin, Gi, Rei, Ko, Chi, Shin, Tei
 
Join Date: Jul 2004
Posts: MXDXCIX
Images: 523
Default Re: SCOTAL Itch

This whole thing illustrates how the "mainstream media," in their attempt to seem "balanced" and "impartial" can seriously misrepresent issues.


I was driving home yesterday, listening to the news. They were blathering on about how both sides in the "Gay Marriage Debate" have "compelling" and "well-thought-out" arguments. To illustrate, they played clips of two people whom they'd interviewed on the subject.


First, they played a clip of a guy saying that the Supreme Court has consistently ruled that marriage is a private matter between consenting adults. He then pointed out that the Supreme Court has also consistently ruled that U.S. citizens have a right to privacy. He then concluded that it would therefore be inconsistent of the SCOTUS to rule that gay people couldn't marry.

Basically, his argument breaks down as:
Premise: The SCOTUS has consistently ruled that whom you choose to marry is a private matter.

Premise: The SCOTUS has consistently ruled that you have a right to privacy.

Conclusion: Therefore, it would be inconsistent of the SCOTUS to rule that gays can't marry whom they wish.

Okay, you can argue about the truthfuness and applicability of his premises, but he did present a logical argument. And the commentators praised him for making a "clear" and "well-reasoned" argument.



Then they played a clip of a guy insisting that gays should not be allowed to marry, because doing so would be harmful to "traditional marriage." When asked if he could provide any evidence to support that claim, he admitted that he could not -- but he was sure that such evidence would surface, someday.

And the commentators immediately complemented him for making a "clear" and "well-reasoned" argument as well.


But he didn't make a "clear" or "well-reasoned" argument. He didn't make an argument at all -- he simply made an unsupported assertion. To pretend that was a "clear" and "well-reasoned" argument was just plain dishonest.

Sheesh!
__________________
“The greatest way to live with honor in this world is to be what we pretend to be.”
-- Socrates

Last edited by The Lone Ranger; 03-30-2013 at 02:01 AM.
Reply With Quote
Thanks, from:
chunksmediocrites (03-30-2013), Clutch Munny (03-30-2013), Dingfod (03-30-2013), Janet (04-04-2013), Kyuss Apollo (03-30-2013), LadyShea (03-29-2013), maddog (03-30-2013), Nullifidian (03-29-2013), Qingdai (03-30-2013), viscousmemories (03-30-2013), Zehava (03-31-2013)
  #208  
Old 03-30-2013, 02:45 AM
Ensign Steve's Avatar
Ensign Steve Ensign Steve is online now
California Sober
 
Join Date: Jul 2004
Location: Silicon Valley
Gender: Bender
Posts: XXXMMCXXI
Images: 66
Default Re: SCOTAL Itch

The NYT has a pretty cool graphic that breaks it down:

How the Court Could Rule on Same-Sex Marriage - Graphic - NYTimes.com
__________________
:kiwf::smurf:
Reply With Quote
Thanks, from:
ChuckF (03-30-2013), Dingfod (03-30-2013), huntress (03-30-2013), Janet (04-04-2013), Kael (03-30-2013), Kyuss Apollo (03-30-2013), livius drusus (03-30-2013), Nullifidian (03-30-2013), The Man (03-30-2013), viscousmemories (04-01-2013)
  #209  
Old 03-30-2013, 02:58 AM
Ari's Avatar
Ari Ari is offline
I read some of your foolish scree, then just skimmed the rest.
 
Join Date: Jan 2005
Location: Bay Area
Gender: Male
Posts: XMDCCCLV
Blog Entries: 8
Default Re: SCOTAL Itch

Is it possible, in some sort of liberal bizarro world for Scotus to both strike down gay marriage bans and also decide that the supporters lack standing? Or is it a one or the other kind of thing.
Reply With Quote
  #210  
Old 03-30-2013, 03:01 AM
ChuckF's Avatar
ChuckF ChuckF is offline
liar in wolf's clothing
 
Join Date: Feb 2005
Location: Frequently about
Posts: XXCDXXX
Images: 2
Default Re: SCOTAL Itch

If there's no standing, there's no case or controversy, so the court has no jurisdiction.
Reply With Quote
Thanks, from:
Ari (03-30-2013), Dingfod (03-30-2013), Janet (04-04-2013), Kael (03-30-2013), LadyShea (03-30-2013), The Man (03-30-2013)
  #211  
Old 03-30-2013, 05:21 PM
Ari's Avatar
Ari Ari is offline
I read some of your foolish scree, then just skimmed the rest.
 
Join Date: Jan 2005
Location: Bay Area
Gender: Male
Posts: XMDCCCLV
Blog Entries: 8
Default Re: SCOTAL Itch

Thanks, I was unsure if the Supreme court could go all Supreme and say that they have no grounds, but since they brought it up, lets rule anyway.
Reply With Quote
  #212  
Old 03-30-2013, 05:29 PM
Kael's Avatar
Kael Kael is offline
the internet says I'm right
 
Join Date: Sep 2008
Location: Western U.S.
Gender: Male
Posts: VMCDXLV
Blog Entries: 11
Images: 23
Default Re: SCOTAL Itch

My understanding is that courts don't do that, like ever, at least in the US. I don't think they're even allowed to do that. I'm a bit curious about how common it is for a judge to expound on what a ruling might have been in an obiter dictum, but my guess is that's not very common at all in the SCOTUS.
__________________
For Science!
Quidquid latine dictum sit, altum videtur.
Reply With Quote
  #213  
Old 03-31-2013, 03:17 PM
LadyShea's Avatar
LadyShea LadyShea is offline
I said it, so I feel it, dick
 
Join Date: Jul 2004
Location: Here
Posts: XXXMDCCCXCVII
Images: 41
Default Re: SCOTAL Itch

If DOMA goes buh bye, am I correct in thinking that the Federal govt will then recognize legal marriages from other countries as well as from states...for immigration purposes, for example?
Reply With Quote
  #214  
Old 04-01-2013, 02:22 AM
LadyShea's Avatar
LadyShea LadyShea is offline
I said it, so I feel it, dick
 
Join Date: Jul 2004
Location: Here
Posts: XXXMDCCCXCVII
Images: 41
Default Re: SCOTAL Itch

Quote:
The chief justice offered a legitimate critique of President Barack Obama — the two aren’t fond of each other — wondering why he had continued to enforce the U.S. statute if he considered it unconstitutional.

Fight Against Gay Marriage Is Outdated - NYTimes.com
WHAT DOES THIS MEAN?

Can the President even decide which laws his administration will enforce or not? Like how could he have chosen to not enforce DOMA? Could he have told the IRS to disregard the law for tax purposes? Could he have told whatever INS is called now to disregard it for immigration purposes?
Reply With Quote
Thanks, from:
Clutch Munny (04-01-2013), Crumb (04-01-2013), Janet (04-04-2013), The Man (04-01-2013)
  #215  
Old 04-01-2013, 05:28 PM
godfry n. glad's Avatar
godfry n. glad godfry n. glad is offline
rude, crude, lewd, and unsophisticated
 
Join Date: Jul 2004
Location: Puddle City, Cascadia
Gender: Male
Posts: XXMMCMXII
Images: 12
Default Re: SCOTAL Itch

Quote:
Originally Posted by LadyShea View Post
Quote:
The chief justice offered a legitimate critique of President Barack Obama — the two aren’t fond of each other — wondering why he had continued to enforce the U.S. statute if he considered it unconstitutional.

Fight Against Gay Marriage Is Outdated - NYTimes.com
WHAT DOES THIS MEAN?

Can the President even decide which laws his administration will enforce or not? Like how could he have chosen to not enforce DOMA? Could he have told the IRS to disregard the law for tax purposes? Could he have told whatever INS is called now to disregard it for immigration purposes?
I doubt that any official directives are necessary. Probably better not. Still, lack of adequate enforcement and administration, and diversion of appropriated funds to 'other initiatives' can always render any program entirely ineffective. One doesn't advertise this stuff...don't give your detractors any ammunition.
__________________
:wcat: :ecat:
Reply With Quote
  #216  
Old 04-30-2013, 06:12 AM
The Man's Avatar
The Man The Man is offline
Safety glasses off, motherfuckers
 
Join Date: Apr 2009
Location: Sarasota, FL
Gender: Bender
Posts: MVCMLVI
Default Re: SCOTAL Itch

Sandra Day O'Connor now thinks maybe the Supreme Court shouldn't have taken Bush v. Gore.

That's nice and all, but it would've been nicer if she'd thought of it twelve and a half years ago.
__________________
Cēterum cēnseō factiōnem Rēpūblicānam dēlendam esse īgnī ferrōque.

“All for ourselves, and nothing for other people, seems, in every age of the world, to have been the vile maxim of the masters of mankind.” -Adam Smith

last.fm · my music · Marathon Expanded Universe
Reply With Quote
Thanks, from:
Adam (04-30-2013), Crumb (04-30-2013), Dingfod (04-30-2013), Janet (05-01-2013), LadyShea (04-30-2013), Nullifidian (04-30-2013), Sock Puppet (04-30-2013), SR71 (04-30-2013), Stephen Maturin (05-06-2013), Watser? (05-06-2013)
  #217  
Old 05-06-2013, 07:26 PM
Stephen Maturin's Avatar
Stephen Maturin Stephen Maturin is offline
Flyover Hillbilly
 
Join Date: Jul 2004
Location: Juggalonia
Posts: MXDXXVI
Default Re: SCOTAL Itch

US Airways, Inc. v. McCutchen, 569 U.S. ___ (2013) (pdf, 22 pages).

The federal Employee Retirement Income Security Act of 1974 (ERISA) is a pretty goddamn big deal in this country. Despite the limitation suggested in its title, ERISA regulates all aspects of employee benefit plans. Therein lies the big deal, given the massive number of people whose access to health care depends on employer-provided health benefits.

Subject to certain exceptions, ERISA preempts state laws purporting to regulate employee benefit plans. Employers generally provide health coverage through self-funded benefit plans or by purchasing group health insurance. The preemption rules are different for self-funded and insured plans. State "insurance" laws are not all preempted, so someone covered under an insured plan may be able to get the benefit of a favorable state insurance law. Self-funded plans are not "insurance" (sez SCOTUS), so state insurance regulations can't apply to self-funded plans.

Thus, all God's creatures aspire to be a self-funded ERISA plan. It is the best thing to be, because of freedom. ERISA says that whatever is in your plan's governing documents controls. The plan beneficiaries (i.e., the employees) are bound by the plan's terms despite never having assented to or even known about those terms. If some fucked up liberal hippie state law purports to render part of your plan unenforceable based on "fairness" or some other fruity-assed bullshit, the law can't be enforced.

You can almost reach out and touch the freedom! :eagletear:

The ERISA provision governing remedies is 29 U.S.C. § 1132. The statute applies (mainly) in two contexts. The first is when an employee/plan beneficiary seeks benefits and is denied in whole or in part. Subdivision (a)(1)(B) says the employee can sue "to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan[.]" That provision is more significant for what it doesn't allow than for what it does.

Suppose, for instance, that the plan refuses to pay for a $1,000 diagnostic test recommended by the employee's doctor. Several months later, after scrounging the necessary funds on his own, the employee has the test and finds out he has a debilitating condition that's too far gone to treat effectively. Had the condition been discovered when the test was first ordered, it could have been eradicated or managed effectively. The employee ends up dead or severely disabled. Full compensatory damages in such a case will be huge. Under ERISA, though, the employee is limited to "benefits due to him under the terms of his plan," namely a grand.

The McCutchen case linked above involves the second scenario. The employee got all busted up in an off-duty car crash caused by the negligence of another driver. US Airways, the employer, paid $66,866 in crash-related medical expenses under its self-funded employee health benefits plan.

Like every self-funded or insured plan, the governing plan documents contained a provision stating that if the plan paid benefits for injuries caused by the tortious conduct of a third party, the employee must reimburse the plan to the extent of its payment from the proceeds of any tort-related recovery. Thanks to limited insurance coverage, the injured employee's combined recovery from the tortfeasor's liability carrier and his own underinsured motorist carrier was only $110,000 (nowhere near what the claim was worth).

The employee netted about $66,000 from the settlement proceeds. US Airways demanded full reimbursement of the benefits it paid. The employee's attorneys told US Airways to go fuck itself, and US Airways sued.

Under subdivision (a)(3)(B), a fiduciary (including a company that funds/administers its own employee benefit plan) can file suit seeking "appropriate equitable relief" to "enforce . . . the terms of the plan[.]" That provision was the basis of US Airways' lawsuit.

"But wait," you say. "Regardless of how they style their claim, the plan wants money. That's not 'equitable relief.' Furthermore, the demand for money is contract-based (okay, so the employee didn't assent to the reimbursement clause in the plan, but lol fuk u it's still a contract because the courts say so). So what we got here is a contract case at law, not in equity, in which the plaintiff wants the defendant to pay money based on the terms of a written agreement. How the donkey-fucking shit does that qualify as an action in equity seeking equitable relief, for fuck's sake. Fuck!"

You might say that, and you'd be absolutely right! EXCEPT that in 2006 the Supreme Court decided Sereboff v. Mid Atlantic Medical Services, Inc., in which it ruled that claims like US Airways are in fact equitable. Why? Well, because the benefit plans that file these cases aren't really seeking money damages based on the terms of the contract. Instead, they're seeking to impose an "equitable lien by agreement" on the proceeds of the injured person's tort recovery.

:crazy2: Okay, but these agreements aren't really agreements, are they? Well sure they are, cuz the courts say so.

All right, but the terms of the agreement don't really purport to impose a "lien" on anything! True, but that doesn't matter cuz we say so.

Uh, but if the lien is agreement-based, how is the case not a plain ol' contract action at law? It just isn't, on accounta we said!

Okie dokie, so as preposterous as it sounds, Sereboff establishes that US Airways is seeking equitable relief in this case. Sereboff left open the question of what qualifies as "appropriate" equitable relief under the above-quoted statute. Is the "equitable lien" claim US Airways is asserting subject to traditional common law doctrines that served to limit the scope of equitable relief under certain circumstances? That was the issue in McCutchen.

The employee in McCutchen raised two traditional equitable defenses to US Airways' lawsuit. The first was the double recovery doctrine, under which an insurer/benefit provider in US Airways' position is entitled to reimbursement only from the portion of the the injured person's tort recovery that represents compensation for medical expenses. Portions of the recovery representing compensation for lost income and noneconomic damages are off limits.

The second was the common fund doctrine, under which everyone who benefits from tort recovery must pay his fair share of the recovery costs. Under that doctrine, US Airways' reimbursement claim would apply to the entire recovery amount, but would be reduced by its pro rata share of the attorney fees and costs McCutchen incurred in getting the recovery.

NATURALLY, the Supreme Court held that neither the double recovery doctrine nor the common fund doctrine could trump the plain language of the plan's reimbursement clause, which required full reimbursement. Once again, the Court treats the plan's reimbursement claim as an at-law contract claim when it favors the plan, and as an in-equity lien claim when it favors the plan. Why? Because any departure from that approach would favor the interests of actual human beings at the expense of big business, and that simply won't do.

However, a majority of the Supreme Court found a way to throw McCutchen a bone, though a largely meatless one. Justice Kagan wrote that although the equitable doctrines at issue can't override the plan language entirely, the common fund doctrine could at least serve as an interpretive aid and "gap-filler." Since the reimbursement clause says nothing about allocation of attorney fees and costs, it's reasonable to interpret the clause as incorporating the common fund doctrine.

So, in the final analysis, Mr. McCutchen did indeed get the benefit of the common fund doctrine. Thanks to that, he might be able to keep $27,000 or so of the $110,000. Every little bit helps, I reckon.

Scalia (joined by Roberts, Thomas and Alito) wrote a brief dissenting opinion expressing sputtering, bed-wetting apoplexy over the Court's decision to give McCutchen the benefit of the common fund doctrine.

McCutchen probably won't have any long-term benefit for injured people. In all likelihood, insurance companies and self-funded benefit plans that hadn't previously done so have now rewritten their reimbursement clauses to do away with the common fund doctrine.

This issue made news about five years back when Walmart's benefit plan sued an employee permanently brain damaged in a car-truck crash for the entire net amount of her recovery from the trucking company. Walmart won the case, but Keith Olbermann, Anderson Cooper and others shamed Walmart into abandoning its claim.
__________________
"We can have democracy in this country, or we can have great wealth concentrated in the hands of a few, but we can't have both." ~ Louis D. Brandeis

"Psychos do not explode when sunlight hits them, I don't give a fuck how crazy they are." ~ S. Gecko

"What the fuck is a German muffin?" ~ R. Swanson
Reply With Quote
Thanks, from:
Adam (05-06-2013), ChuckF (05-08-2013), chunksmediocrites (06-07-2013), Clutch Munny (05-07-2013), Janet (05-08-2013), Kael (05-07-2013), LadyShea (06-08-2013), livius drusus (05-07-2013), Nullifidian (05-06-2013), SR71 (05-06-2013), The Man (05-06-2013)
  #218  
Old 05-06-2013, 10:52 PM
erimir's Avatar
erimir erimir is offline
Projecting my phallogos with long, hard diction
 
Join Date: Sep 2005
Location: Dee Cee
Gender: Male
Posts: XMMMDCCCVI
Images: 11
Default Re: SCOTAL Itch

:tealdeer: can you give me the non-legalize version?
Reply With Quote
Thanks, from:
Stephen Maturin (05-06-2013)
  #219  
Old 05-06-2013, 11:23 PM
Stephen Maturin's Avatar
Stephen Maturin Stephen Maturin is offline
Flyover Hillbilly
 
Join Date: Jul 2004
Location: Juggalonia
Posts: MXDXXVI
Default Re: SCOTAL Itch

Infants. I'm surrounded by infants.



tl;dr version - if (a) you're injured because of someone else's negligence, (b) your employer-provided health coverage pays your injury-related medical expenses, and (c) you recover compensation from the negligent person or his insurance company via settlement or judgment, you'll probably have to reimburse the employer-sponsored health plan from the proceeds of your recovery, even if doing so leaves you with zip.
__________________
"We can have democracy in this country, or we can have great wealth concentrated in the hands of a few, but we can't have both." ~ Louis D. Brandeis

"Psychos do not explode when sunlight hits them, I don't give a fuck how crazy they are." ~ S. Gecko

"What the fuck is a German muffin?" ~ R. Swanson
Reply With Quote
Thanks, from:
Adam (05-07-2013), erimir (05-07-2013), Janet (05-08-2013), Kael (05-07-2013), Nullifidian (05-07-2013), Pan Narrans (05-07-2013), SR71 (05-08-2013), The Man (05-06-2013), Watser? (05-06-2013)
  #220  
Old 05-06-2013, 11:37 PM
Ari's Avatar
Ari Ari is offline
I read some of your foolish scree, then just skimmed the rest.
 
Join Date: Jan 2005
Location: Bay Area
Gender: Male
Posts: XMDCCCLV
Blog Entries: 8
Default Re: SCOTAL Itch

Quote:
Originally Posted by erimir View Post
:tealdeer: can you give me the non-legalize version?
Giant corporations using advanced hallow dick multi-screw technology----->:monkeybuttsex: <--- You, the monkey on the end.
The courts just ruled if two monkeys gave you lube, you must give one of the monkey's lube back, even if you end up with negative lube.
Reply With Quote
Thanks, from:
Adam (05-07-2013), ChuckF (05-08-2013), chunksmediocrites (06-07-2013), Clutch Munny (05-07-2013), erimir (05-07-2013), Janet (05-08-2013), Kael (05-07-2013), LadyShea (05-07-2013), livius drusus (05-07-2013), Nullifidian (05-07-2013), Pan Narrans (05-07-2013), Sock Puppet (05-09-2013), SR71 (05-08-2013), Stephen Maturin (05-06-2013), The Man (05-06-2013), Watser? (05-06-2013)
  #221  
Old 05-06-2013, 11:40 PM
maddog maddog is offline
Member
 
Join Date: Aug 2004
Posts: MMMXXXIII
Default Re: SCOTAL Itch

Un-freaking-believable. That used to be the difference between on-the-job injury for which you are limited to workers' comp, and your third party award would be liened for WC benfits paid, but you could get and keep your compensation for off-the-job injuries.

#2934
Reply With Quote
Thanks, from:
chunksmediocrites (06-07-2013), Clutch Munny (05-07-2013), Janet (05-08-2013), Kael (05-07-2013), LadyShea (05-07-2013), Nullifidian (05-07-2013), SR71 (05-08-2013), Stephen Maturin (05-06-2013), The Man (05-06-2013)
  #222  
Old 05-06-2013, 11:55 PM
Stephen Maturin's Avatar
Stephen Maturin Stephen Maturin is offline
Flyover Hillbilly
 
Join Date: Jul 2004
Location: Juggalonia
Posts: MXDXXVI
Default Re: SCOTAL Itch

PI plaintiffs have subro/reimbursement issues with non-ERISA first-party benefit providers as well (auto med pay coverage for instance), but in that context state courts and state legislatures can help (if they're so inclined). No such luck when ERISA's involved.

Also, lol "negative lube"
__________________
"We can have democracy in this country, or we can have great wealth concentrated in the hands of a few, but we can't have both." ~ Louis D. Brandeis

"Psychos do not explode when sunlight hits them, I don't give a fuck how crazy they are." ~ S. Gecko

"What the fuck is a German muffin?" ~ R. Swanson
Reply With Quote
Thanks, from:
Janet (05-08-2013), Kael (05-07-2013), Nullifidian (05-07-2013)
  #223  
Old 05-07-2013, 11:24 PM
wildernesse's Avatar
wildernesse wildernesse is offline
The cat that will listen
 
Join Date: Aug 2004
Location: Valley of the Sun
Gender: Female
Posts: MMMDCCCXLIX
Blog Entries: 6
Images: 3
Default Re: SCOTAL Itch

Ari, you know there's like a whole business of writing outlines of law and crap that desperate law students buy, hoping that suddenly things like Contracts will make sense and not just be all screw you, little guy all the time for [I just made this up, but I'm a judge so there]. You could freelance for them.
Reply With Quote
Thanks, from:
Ari (05-07-2013), Janet (05-08-2013), Nullifidian (05-08-2013), SR71 (05-08-2013), Stephen Maturin (05-08-2013)
  #224  
Old 06-07-2013, 10:36 PM
Stephen Maturin's Avatar
Stephen Maturin Stephen Maturin is offline
Flyover Hillbilly
 
Join Date: Jul 2004
Location: Juggalonia
Posts: MXDXXVI
Default Re: SCOTAL Itch

Those who thought it impossible to get Justices Scalia, Ginsburg, Sotomayor and Kagan on the same side of a constitutional criminal procedure issue got a 360-degree Jean Claude Van Damme spin-kick to the nuts earlier this week in the form of Maryland v. King, 569 U.S. ___ (2013).

Dude gets arrested in 2009 on charges of first and second degree assault. Everyone agrees there was probable cause for the arrest. The cops took a DNA sample by swabbing the inside of the arrestee's cheek. Apparently, that's part of "routine booking procedure" for "serious offenses" in Maryland. :twitch:

Anyhoo, dude's DNA sample matched DNA from a 2003 rape. He got convicted of the rape after trying and failing to get the DNA evidence excluded on Fourth Amendment grounds.

"No problem," says a 5-4 (Kennedy, Roberts, Thomas, Breyer and Alito) of the Supreme Court. Taking the sample is clearly a search, but not an "unreasonable" one for Fourth Amendment purposes because it's a "legitimate booking procedure" along the lines of mug shots and fingerprinting. The minimal intrusiveness of taking the sample is more than offset by the government's compelling interest in safeguarding law enforcement personnel and other detainees by identifying exactly who you've got in custody.

One of life's great joys involves watching a Supreme Court majority justify a result through preposterous and disingenuous means, only to have some pesky malcontent write a dissenting opinion that painstaking lays bare every last shred of preposterousness and disingenuousness for all the world to see. So it is with Scalia's dissent in King.

The majority tells us in no uncertain terms that it's not condoning invasive surgery on arrestees or warrantless searches of their homes, as if that's supposed to make us feel better. Scalia retorts:

Quote:
That the Court feels the need to disclaim these consequences is as damning a criticism of its suspicionless-search regime as any I can muster.
As to the made-up justification of identifying the arrestee at all points during the process:

Quote:
Reading the Court's opinion, particularly its insistence that the search was necessary to know "who [had] been arrested," ante, at 11, one might guess that King's DNA was swiftly processed and his identity thereby confirmed-perhaps against some master database of known DNA profiles, as is done for fingerprints. After all, was not the suspicionless search here crucial to avoid "inordinate risks for facility staff" or to "existing detainee population," ante, at 14? Surely, then- surely-the State of Maryland got cracking on those grave risks immediately, by rushing to identify King with his DNA as soon as possible.

Nothing could be further from the truth. Maryland officials did not even begin the process of testing King's DNA that day. Or, actually, the next day. Or the day after that. And that was for a simple reason: Maryland law forbids them to do so. A "DNA sample collected from an individual charged with a crime ... may not be tested or placed in the statewide DNA data base system prior to the first scheduled arraignment date." Md. Pub. Saf. Code Ann. §2-504(d)(1) (Lexis 2011) (emphasis added). And King's first appearance in court was not until three days after his arrest. (I suspect, though, that they did not wait three days to ask his name or take his fingerprints.)

This places in a rather different light the Court's solemn declaration that the search here was necessary so that King could be identified at "every stage of the criminal process." Ante, at 18. I hope that the Maryland officials who read the Court's opinion do not take it seriously. Acting on the Court's misperception of Maryland law could lead to jail time. See Md. Pub. Saf. Code Ann. §2-512(c) -(e) (punishing by up to five years' imprisonment anyone who obtains or tests DNA information except as provided by statute). Does the Court really believe that Maryland did not know whom it was arraigning?
And no Scalia opinion of this sort would be complete without a quip about how the Framers would never have presented their rumps to King George for ravaging of the sort at issue here:

Quote:
Today's judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the "identity" of the flying public), applies for a driver's license, or attends a public school. Perhaps the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.


Later this month we'll get the word on:

- DOMA

- Prop 8

- Affirmative action in state university admissions

- Whether Section 5 of the Voting Rights Act can survive now that all the states of the old Confererasah have seen the light and completely eliminated all vestiges of racism from their voting procedures

- Whether/to what extent human genes are patentable.
__________________
"We can have democracy in this country, or we can have great wealth concentrated in the hands of a few, but we can't have both." ~ Louis D. Brandeis

"Psychos do not explode when sunlight hits them, I don't give a fuck how crazy they are." ~ S. Gecko

"What the fuck is a German muffin?" ~ R. Swanson
Reply With Quote
Thanks, from:
BrotherMan (06-07-2013), chunksmediocrites (06-07-2013), Clutch Munny (06-08-2013), Demimonde (06-08-2013), Janet (06-07-2013), LadyShea (06-08-2013), lisarea (06-07-2013), Pan Narrans (06-10-2013), The Man (06-07-2013), Ymir's blood (06-08-2013)
  #225  
Old 06-07-2013, 11:19 PM
BrotherMan's Avatar
BrotherMan BrotherMan is offline
A Very Gentle Bort
 
Join Date: Jan 2005
Location: Bortlandia
Gender: Male
Posts: XVMMXVIII
Blog Entries: 5
Images: 63
Default Re: SCOTAL Itch

I'm not good at logicing or even articulating my way through legal arguments but I think I agree with the majority on this. Not with what they used to justify their decision, that we can agree is just silly. I'm not buying what the dissenting opinion is selling (at least the part you quoted) either. I'm so focused on what I think are the positives of DNA sampling as part of the in-processing people who are arrested that I'm unable to think of what the negatives are. I probably need somebody to hold my hand and walk me through it.
__________________
\V/_
I COVLD TEACh YOV BVT I MVST LEVY A FEE
Reply With Quote
Reply

  Freethought Forum > The Public Baths > News, Politics & Law


Currently Active Users Viewing This Thread: 2 (0 members and 2 guests)
 
Thread Tools
Display Modes

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off

Forum Jump

 

All times are GMT +1. The time now is 06:50 AM.


Powered by vBulletin® Version 3.8.2
Copyright ©2000 - 2024, Jelsoft Enterprises Ltd.
Page generated in 0.77454 seconds with 14 queries