(Roughly) Daily

Posts Tagged ‘Supreme Court

“If You Can’t Fix It, You Don’t Own It”*…

A just-issued report by the US Federal Trade Commission confirms that anti-repair actions by large companies are hurting small businesses, undermining your ownership rights, and hurting the planet. Of course, these are the very problems that we’ve been fighting for the past fifteen years—but it’s validating to see US government confirmation of the market imbalance.

The unanimous report, nearly two years in the making, follows public hearings and testimony from the FTC’s “Nixing the Fix” workshop in July 2019, and a demand from Congress in 2020 to report back. iFixit and other repair advocates told the Commission then how manufacturers design products that frustrate repair and force owners to use the manufacturers’ branded repair services, hurting consumers and stifling competition. Manufacturers claimed the market was working fine, and that opening up repair access would undermine the safety and security of their products. Today’s report is a rebuke to their arguments.

The FTC’s long-awaited report provides a thorough analysis of broad market failures, and recommendations for government action to address those failures. Some major findings included in the report:

– Warranties are being routinely voided, in violation of the Magnuson Moss Warranty Act. “The Commission takes these allegations seriously and will continue to address illegal practices in the marketplace.”

– “[T]he burden of repair restrictions may fall more heavily on communities of color and lower-income communities.”

– “The pandemic has exacerbated the effects of repair restrictions on consumers.”

The report summarizes the problems that consumers are facing from a variety of monopoly strategies. “Many manufacturers restrict independent repair and repair by consumers through:

– Product designs that complicate or prevent repair;

– Unavailability of parts and repair information;

– Designs that make independent repairs less safe;

– Policies or statements that steer consumers to manufacturer repair networks;

– Application of patent rights and enforcement of trademarks;

– Disparagement of non-OEM parts and independent repair;

– Software locks and firmware updates; or

– End User License Agreements.”

A rebuke of Apple, John Deere, and other manufacturers whose practices frustrate repair by “owners”: “FTC Report Finds Manufacturers’ Repair Restrictions Unwarranted.” Via @kwiens and @stewartbrand

ifixit.com

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As we resist rentiers, we might recall that it was on this date in 1893 that the U.S. Supreme court unanimously ruled that a tomato is a vegetable. In reaching their decision in Nix v. Hedden, a dispute over the appropriate duties to be levied pursuant to the Tarriff Act of 1883, the justices found that the “ordinary” understanding of a tomato as a vegetable should take precedence over the scientific fact that it is a fruit.

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Written by (Roughly) Daily

May 10, 2021 at 1:01 am

“That’s all we’re asking for: an end to the antidemocratic and un-American practice of gerrymandering congressional districts”*…

 

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Though a substantial majority disapprove of the practice, the Supreme Court recently refused to address the issue of partisan redistricting– gerrymandering…

The Supreme Court will not end extreme partisan gerrymandering. In a 5-4 decision along ideological lines, the court ruled Thursday that partisan gerrymandering of congressional districts cannot be limited by federal courts. Chief Justice John Roberts authored the majority opinion, writing that “what the appellees and dissent seek is an unprecedented expansion of judicial power.”

Justice Elena Kagan’s dissent was scathing. “For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities,” she wrote in her opening sentence. She argued that imposing limits on gerrymandered districts is not beyond the scope of the court: “The partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people.”

The ruling almost certainly would have been different if Anthony Kennedy were still on the court. Before retiring last year, Kennedy had been the swing justice on previous gerrymandering cases. He had said that partisan gerrymandering was within the purview of the court but that the justices should hold off on ruling any particular gerrymander unconstitutional until a manageable standard for measuring gerrymandering emerged. Since he took that position in 2004, reformers had been attempting to find such a standard. Legal scholars and statisticians developed various measurements to try to win over the court, but without Kennedy, those efforts turned out to be futile…

FiveThirtyEight considers the possible impacts of the Court’s abnegation and explores other paths to a remedy: “Partisan Gerrymandering Isn’t The Supreme Court’s Problem Anymore.”

See also: “Electoral map bias may worsen as U.S. gerrymandering battle shifts to states” and “The Courts Won’t End Gerrymandering. Eric Holder Has a Plan to Fix It Without Them.”

* President Ronald Reagan (in 1988, illustrating on the one hand that this is an issue of long standing [see here for earlier history]; and on the other, that shoes have a way of moving from one foot to the other…)

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As we recall that the American Revolution was, in part, about the lack of fair representation, we might recall that it was on this date in 1776 that the Declaration of Independence was adopted by the Second Continental Congress.

Use it or lose it.

220px-United_States_Declaration_of_Independence source

 

 

“The first human who hurled an insult instead of a stone was the founder of civilization”*…

 

Cretin (n), “A stupid, vulgar, or insensitive person.”

It’s ironic that cretin is used to describe an insensitive person, because its origin is terribly insensitive. Cretin, like spaz, is an insult that evolved from a very real and very dreadful medical condition. It comes from a word used in an 18th century Alpine dialect. The word was crestin, used to describe “a dwarfed and deformed idiot.” Cretinism was caused by lack of iodine resulting in congenital hypothyroidism. Etymologists believe the word’s root, the Latin “Christian,” was to be a reminder that cretins were God’s children, too.

From Mental Floss, the origin of 10 familiar insults.

* Sigmund Freud

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As we mind our language, we might recall that it was on this date in 1919 that the U.S. Supreme Court decided the case of Schenck v. United States– in which Justice Oliver Wendell Holmes, Jr.’s opinion famously observed that “the most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic.”  As his observation passed into common parlance, “falsely” fell away and the condition of the theater was embellished– so that “shouting fire in a crowed theater” has come to stand for speech that is dangerous and unlawful.  The ever-precise Holmes recognized that, if in fact there were a fire in a crowded theater, one may rightly shout “Fire!”; indeed one might, depending on the law in operation, be obliged to.

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Written by (Roughly) Daily

March 3, 2013 at 1:01 am

It was a frame-up…

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As political discourse in the U.S. has devolved into the nastiest kind of spitting match– dramatic thesis, passionate antithesis, no synthesis– antagonists on all sides of every issue invoke the Constitution, its Framers, and their intent… which, it seems, can be understood to justify just about any position.

So The Browser‘s recent “Five Books” interview with Jack Rakove on the U.S. Constitution couldn’t be more timely– nor more helpful.  As he explains his selection of the five books he’d most recommend to anyone wanting to understand the context for, the drafting of, the process of ratification of, and the ultimate role of “the oldest written constitution still in use,” the Pulitzer-Prize-winning Stanford historian sheds light in every direction, e.g., on the role of the Judiciary…

Most historians are very skeptical about the way that the Supreme Court is [interpreting the Constitution]. To reason accurately about the past is much trickier than one might think. The current version of originalism is what’s called “public meaning originalism.” It says we don’t really care about the history of how these provisions got adopted, we’re not going to try to reconstruct the debates to figure out what the framers wanted and what the ratifiers thought. We just want to get at the holistic meaning of the language. To historians this is a terribly flawed enterprise, but that’s the current regime… Language is dynamic. As the work of many historians, including my own work, attests, the 18th century was a period of political experimentation. The framers were rethinking the nature of representative government, they were rethinking the nature of executive power, they were coming up with new rules for judges. All this required a terrific amount of creative political thinking. The idea that language was fixed when all these ideas were being stretched and pressed in different directions, the idea that the meaning of a text is frozen at the moment of its adoption, it just strikes most historians as inane.

You’ve said that historians should call the bluff of people who twist the history of the Constitution for instrumental purposes. Please call someone’s bluff.
I submitted a brief in the District of Columbia vs Heller case, from three years ago. That was the case in which the Court struck down a 32-year-old handgun ban as incompatible with the Second Amendment. I think there are intellectual embarrassments of the first order in Justice Scalia’s opinion. He wholly ignores the history of how the Second Amendment got adopted. He makes things up that did not happen the way he hypothesizes. But I’m a historian and he’s a Justice. I’m a private citizen and he’s a public official. I think I have better footnotes, but he has a vote on the Supreme Court.

Read the entire fascinating interview (and order any/all of the books Rakove recommends) here.

As we muse that things could always be– indeed, once were– even worse, we might recall that it was at dawn on this date in 1804 that Alexander Hamilton and Aaron Burr met on a rise in Weehawken (NJ) to resolve their differences with a duel.  The rivals fired essentially simultaneously;  Hamilton’s shot was wide, but Burr’s hit its mark.  Hamilton died the following day.  While there was a good bit of personal animus between the enemies, their feud was fueled by deep political divisions. It’s proximate cause: Republican Burr’s feeling maligned by Federalist Hamilton.  But the bloody encounter was just one symptom of the deep animosity loosed by the first emergence of the nation’s political party system.

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I have this recurring nightmare about an exam for which I haven’t studied…

… the first of a series of questions at Nation’s Report Card‘s (U.S. Department of Education’s) web site– in the Fourth Grade section.  Having completed those, readers can graduate to Eighth and Twelfth Grade exams.

Makes one grateful for innovations in teaching like this one.

As we agree with Sam Cooke (and then again, wish that our Presidential contenders didn’t), we might recall that it was on this date in 1972 that the U.S. Supreme Court decided Furman vs. Georgia by a 5-4 vote, declaring capital punishment unconstitutional.  But it wasn’t a conclusive victory for death-penalty foes:  the majority based its decision on flaws in jury selection and sentencing processes…  which were addressed by several states over the next few years.  So, in 1976, when the issue came again before the Justices, they ruled that capital punishment could be resumed under a “model of guided discretion.”  And it was– with the 1977 execution (by firing squad) of Gary Gilmore in Utah.  In 2010, the U.S. ranked fifth in the world in the number of legal executions performed (behind China, Iran, North Korea, and Yemen; ahead of Saudi Arabia, Lybia, Syria, and the rest of the countries in the world).

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