Jan 11, 2013

There is actually a prosecutor in Wayne County, Michigan named Luke Skywalker

It’s a trap!

Enter Luke Skywalker. Yes, the assistant county prosecutor assigned to the case was actually named Luke Skywalker. Which means we get to fill this post with “Star Wars” references.

Update: May the force (of the subpoena) be with him.

Update 2: On Twitter, you ask, and you shall receive.

[tweet https://twitter.com/SteveRKlein/status/289878367874977793]

I interned at WCPO. He liked the movies and legally changed his name; tells story quickly at intro to avoid witty responses.

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Jan 11, 2013

LA Porn Condom Requirement “imposes an intolerable burden on the exercise of rights under the First Amendment”

Who said the Constitution can’t be sexy?

Adult film producer Vivid Entertainment is seeking to overturn the newly passed Los Angeles County ballot measure requiring porn performers to wear condoms during filming.

The lawsuit was filed in federal court Friday on behalf of Vivid, one of the nation’s most prominent adult film makers, along with two porn performers. The suit argues that the condom-porn measure violates the 1st Amendment protection of free expression. The ballot measure was passed with 57% of the vote in November.

The new ordinance “imposes an intolerable burden on the exercise of rights under the First Amendment,” the suit says.

From their complaint:

1. It is beyond dispute that erotic adult films are protected by the First Amendment, as applied to the States and their subdivisions under the Fourteenth Amendment. See, Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65 (1981); Cily of Rerzroh v. Playtime Theatres, 475 U.S. 41 (1986). Plaintiffs Vivid, Califa, Ms. Kross, and Mr. Pierce count themselves among the many producers, distributors, and performers of works that explore the “great and mysterious motive force in human life [which] has indisputably been a subject of absorbing interest to mankind through the ages,” sexuality and sexual relations. Roth v. U.S., 354 U.S. 476, 487 (1957). Through this action, Plaintiffs seek to protect the First Amendment rights of producers of sexually oriented films, to uphold the supremacy of the law of the State of California, and to protect the livelihoods of those who work in and around the adult film industry.

And how does it violate the First Amendment?

The provisions of Measure violate the First Amendment by curtailing freedom of expression via a county ballot initiative. The exercise of First Amend-ment freedoms cannot be limited by referendum. Buckley 12. American Constirutionai Law oanal, 525 U.S. 182, 194 (1999) (“The voters may no more violate the United States Constitution by enacting a ballot issue than the general assembly may by enacting legislation”); West Virginia State Bd. afEduc. v. Barnette, 319 U.S. 624 (1943) (“One’s right to life, liberty, and property, to free speech, a free press, free- dom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections”). Imposing regulation in this way is inherently content-based. Board of Regents of the Univ. of Wisconsin Sys. 12. Southworth, 529 U.S. 217, 235-36 (2000). The fact that Measure was presented as a “public health” ballot measure does not immunize it from First Amendment scrutiny Sorreli 12. IMS Health, 131 S. Ct. 2653 (2011).

59. Measure further empowers Department inspectors to take possession of “any evidence” that “bears on” compliance with Measure B, without limitations or a cause requirement, which conceivably could include sole copies of expressive works produced in alleged violation of Measure B. In addition, Measure permits the suppression of expression and speech by imposing serious civil and criminal penalties for non–compliance with its permitting and/or barrier-protection requirements. 60. Measure thus violates the First Amendment by standing as an unconstitutional prior restraint upon protected expression and upon the creation and dissemination of protected speech.

Read through the description of the parties. Its SFW, but funny.

10. Plaintiff Kayden Kross is a performer who appears in adult films produced in the County of Los Angeles, California. Ms. Kross has worked in adult films for over six years, has during that time been a contract performer for Vivid, Adam Eve, and Digital Playground, and has appeared in approximately 75 adult films. She has also appeared in several episodes of The Block, a reality program on G4TV, and of Life on Top on Cinemax, as well as in the FX comedy series The League, the theatrical motion picture The Obsession, and as a lead in the film As Wonderland Goes By. Ms. Kross writes columns regularly for publications such Cornpiex and Xhiz magazines, has contributed to Timothy McSweeny Internet Tendency, and her short story “Plank” appeared in the 2012 e–book collection Forty Stories: New Writing from Harper Perennial. Ms. Kross has also won several awards for her roles in adult films, from AVN and XBIZ, among others. Ms. Kross’s expressive contributions to adult films are directly affected by requirements imposed under Measure B.

The complaint isn’t hard to unwrap. Let’s see if it sticks.

Update: I should note that this is a *facial* challenge.

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Jan 11, 2013

The Lull of Prediction Markets

An interesting question an answer from Nate Silver’s Reddit Ask-Me-Anything, about whether prediction markets may lull people into not voting.

Q. Are you concerned that during future elections, the accuracy of your predictions will lull readers into a mindset of “it has been foretold, therefore I needn’t bother to vote”?
— whydidijoinreddit

A. It worries me a bit. There is probably a danger zone in which a candidate’s supporters take for granted that he’ll win the election and so don’t turn out to vote, but the election is nevertheless close enough for him to lose. That may have happened in the Democratic primary in New Hampshire in 2008, for example. There were a lot of reasons why Hillary beat her polls, but one contributing factor may have been that a lot of independent voters who would otherwise have voted for Barack chose to vote in the GOP primary instead since it seemed more competitive.

H/T Althouse

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Jan 11, 2013

Does the Supreme Court give relatively-unknown Anti-Federalist Papers Too Much Weight?

This article argues yes. Misunderstanding the Anti-Federalist Papers: The Dangers of Availability by Aaron Zelinsky.

In recent years, the Supreme Court’s use of the Federalist Papers has received much scholarly attention, but no analysis has focused on the Court’s use of Publius’ lesser-known sibling, the Anti-Federalist Papers. This Article undertakes the first systematic analysis of the Court’s use of the Anti-Federalist Papers and concludes that the Supreme Court has misused the Anti-Federalist Papers as a source of original meaning by treating all Anti-Federalist Papers alike when they are actually of differing historical value. Increasingly, the Court treats little-read Anti-Federalist Papers written by unknown authors identically to the widely reprinted writings of those Anti-Federalists present at the Constitutional Convention and prominent in the ratifying debates.

The Court’s confusion of availability with authority is not unique to the Anti-Federalist Papers. Rather, this confusion represents an under- examined pitfall in the process of canon formation: the dangers of increased availability. In 1981, Herbert Storing published a “complete” volume of Anti-Federalist Papers, including many little-known Papers with relatively low historical impact. Almost immediately, members of the Court cited many of these marginal papers alongside the words of prominent founders, confusing contemporary availability for jurisprudential authority. Storing’s 1981 publication effectively served as a controlled experiment: documents which were uncirculated for two centuries were suddenly made widely available in a single volume. Studying the impact of the publication of these documents and the uses to which these documents were put provides insight into the larger challenges posed by increased availability in the modern era.

This Article uses the Anti-Federalist Papers as a case study for examining three unrecognized angers which arise from increased availability, which it labels flattening, cherry-picking, and snowballing. Each of these dangers is illustrated with an example from the Court’s use of the Anti-Federalist Papers. This Article then examines two other circumstances where the dangers of availability have been realized: the cherry-picking of IRS private revenue rulings and the snowballing of unpublished opinions. As electronic databases continue to proliferate and information thus becomes more easily available, the dangers of availability will continue to grow. This Article concludes by proposing ways that scholars, judges, and lawyers can avoid the dangers of availability.


H/T Larry Solum



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Jan 11, 2013

“Gave proof through the night that our flag was still there” in Seaside Heights

Planting an American Flag atop a collapsed Roller Coasters in Seaside Heights. It’s a Jersey Thing. Seaside Heights simply does not look the same, but this flag is a welcome addition.


Unfortunately the guy who planted the flag was arrested. Go figure.

Police have apprehended a man who apparently climbed the New Jersey roller coaster that was swept into the ocean during Superstorm Sandy and unfurled an American flag.

The man walked from the top of the coaster and hopped into a police boat today. He was handcuffed, walked through the surf and escorted to a police car on the beach in Seaside Heights.


H/T Doug Mataconis

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Jan 11, 2013

What Happens When IBM’s Watson Studies Urban Dictionary?

The singularity gets much more vulgar:

Watson couldn’t distinguish between polite language and profanity — which the Urban Dictionary is full of. Watson picked up some bad habits from reading Wikipedia as well. In tests it even used the word “bullshit” in an answer to a researcher’s query.

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Jan 11, 2013

Precog Algorithms: Prevent Crime and Help Courts

What if algorithms became so sophisticated that they could stop crime before it occurs, and help courts decide whether a suspect should receive bail, or how long a sentence would be optimal?

Welcome to the future. From Wired:

New crime-prediction software used in Maryland and Pennsylvania, and soon to be rolled out in the nation’s capital too, promises to reduce the homicide rate by predicting which prison parolees are likely to commit murder and therefore receive more stringent supervision.

The software aims to replace the judgments parole officers already make based on a parolee’s criminal record and is currently being used in Baltimore and Philadelphia.

Richard Berk, a criminologist at the University of Pennsylvania who developed the algorithm, claims it will reduce the murder rate and other crimes and could help courts set bail amounts as well as sentencing in the future.

“When a person goes on probation or parole they are supervised by an officer. The question that officer has to answer is ‘what level of supervision do you provide?’” Berk told ABC News. The software simply replaces that kind of ad hoc decision-making that officers already do, he says.

To create the software, researchers assembled a dataset of more than 60,000 crimes, including homicides, then wrote an algorithm to find the people behind the crimes who were more likely to commit murder when paroled or put on probation. Berk claims the software could identify eight future murderers out of 100.

The software parses about two dozen variables, including criminal record and geographic location. The type of crime and the age at which it was committed, however, turned out to be two of the most predictive variables.

H/T Jerry B.

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