Communications Decency Act (CDA) and Reno v. ACLU

Communications Decency Act (CDA)- a US law designed and enacted to protect minors from indecent and obscene communications - was addressed in Reno v. ACLU 521 US 844 (1997) when the US Supreme Court in a unanimous opinion declared CDA's anti-obscenity and anti-indecency provisions to be unconstitutional, as these affected the rights of adults in addition to curbing obscenity and indecency.

Policy decisions, Classification, Contracts and Judicial Review

A.    POLICY DECISIONS:

PLD 2007 SC 642: See pages 672(N) and 674(s) for the balance between contractual rights, obligation, interests of the community at large and over-riding necessity.

1978 SCMR 327: At Page 329: “It was further held that in such cases the emphasis is on policy and any discretion vesting in the authorities is directed towards attaining the policy’s objectives.”

1986 SCMR 680: At Page 682: “Government has the right of laying down policy and if it chooses to do so and there is no law on the subject it offends, it is not the right of any Court to throw it out, other than to hold, in any genuine case, that the same is unreasonable or arbitrary.”

PLD 1973 SC 49: See generally for scope of judicial review, trichotomy of powers in our constitutional scheme.

Persecution of Ahmadis in the Islamic Republic

The basic premise on which we won ourselves Pakistan was that a permanent majority cannot and should not dominate a permanent minority on account of numeric strength. Yet contrary to that founding logic, Pakistan is today legally a totalitarian fundamentalist theocracy

A fresh round of hate has been unleashed against the hapless Ahmediyya community once again. A young woman has been expelled from her university for daring to stand up to hate speech against her community on campus in Lahore. In Rawalpindi, ignorant and boorish mobs have been agitating to close down an Ahmedi ‘place of worship’ for being ‘unconstitutional’. In other words, practising their own faith in their own space is deemed unconstitutional by a mob that has probably never opened the constitution. All the while this community goes on praying and fasting for Pakistan, where a majority continues to persecute them for believing differently.

40 Key US Cases

By Anonymous

1. marbury v. madison 1803
   established judicial review; power of the supreme court is supreme in deciding cases as unconstitutional or not
2. McCulloch v. Maryland 1819
   established national supremacy and implied powers; the use of the elastic clause==> state unable to tax.
3. Dred Scott v. Stanford 1857
   
   • ruled that
   • 1. fed govt cant ban slavery from territores
   • 2. blacks whether slaves or free were never citizens

US Case Law on Fundamental Rights

These cases are excerpted from a New York Times article.

1. Kelo v. City of New London 545 U.S. 469 (2005)

This is a classic case of balancing private property rights and the public good. The city of New London, Conn., having lost traditional industries, needed economic development to reverse urban decay. But could private companies get rich in the process? The Supreme Court found that economic development under the city’s plan would not violate the Fifth Amendment (which prohibits the taking of private property for public use “without just compensation”) solely because there was some private gain.

2. Parents Involved in Community Schools v. Seattle School District No. 1 551 U.S. 701 (2007)

 Can a city school board use race or ethnic identity as a factor in school admittance? I tell my students that if they want to understand modern American society, they should study both the evolving idea of equal protection and the history behind it: slavery, the Civil War, Jim Crow, the 14th Amendment and Brown v. Board of Education. But the concept continues to evolve, as is shown by this case; in it, the Supreme Court, while recognizing that school districts have a compelling interest in diversity, ruled against school district plans that used race as a factor in assigning students to public schools.

3. Stanford v. Kentucky 492 U.S. 361 (1989) and Roper v. Simmons 543 U.S. 551 (2005)

Can the death penalty be imposed on a defendant who committed murder as a juvenile? In a 1989 case in Kentucky, the Supreme Court held that executing a juvenile offender did not violate “common standards of decency,” or the cruel and unusual punishments clause of the Eighth Amendment. But it reversed this decision in 2005, finding that the standards had evolved to a point at which such executions were unconstitutional.

Classification continued

Classification: Powers of the Government/Legislature to create and protect classes in conformity with the stated objective:

                                                           

1.       Independent Newspapers Corporation (Pvt) Limited v. Chairman Fourth Wage Award 1999 SCMR 1533

We are conscious that the purpose of Newspaper Employees (Conditions of Service) Act,, 1973, is the betterment of the financial condition of the persons employed in the Newspaper Establishment and it should receive beneficent construction but in an interpretative effort to pragmatize this piece of legislation and treat a particular benefit as wages and then fix the rate thereof, the       Wage Board cannot travel beyond the spectrum of  the impact of its decision on the Newspaper Industry, ignore the factors envisaged by section 10 of the Act, which is not exhaustive in character and determinative of all the relevant considerations p regulating the fixation of wages. The Board has to act objectively and not subjectively. We are, therefore, unable to accept grant of so large a width to the powers of the Board to brand such a benefit as wages.

US Case Law on Economic Classification

           Research by Yasser Latif Hamdani           

1.                   Williamson v. Lee Optical, Inc., 348 U.S. 483 (1955)

Case Summary:

Provisions of an Oklahoma statute making it unlawful for any person not a licensed optometrist or ophthalmologist to fit lenses to a face or to duplicate or replace into frames lenses or other optical appliances except upon written prescriptive authority of an Oklahoma licensed ophthalmologist or optometrist, are not invalid under the Due Process Clause of the Fourteenth Amendment. To subject opticians to this regulatory system while exempting all sellers of ready-to-wear glasses does not violate the Equal Protection Clause of the Fourteenth Amendment.

US Supreme Court on Presumptions and Due Process- some landmark cases

By Yasser Latif Hamdani

Principle: It is clearly within the domain of the legislative branch of government to establish presumptions and rules respecting burden of proof in litigation.

1.       Hawkins v. Bleakly, 243 U.S. 210 (1917)  US SUPREME COURT on pages 1-2 of the attached copy of the Judgment

Excerpt:
The provisions in § 3 of the Iowa Workmen's Compensation Law, Laws of Iowa, 35 G.A. c. 147; Iowa Code Supp., 1913, § 2477m, requiring employees who reject the act to state by affidavit who, if anyone, requested or suggested that course, and providing that, where an employer or his agent has made such request or suggestion, the employee shall be conclusively presumed to have been unduly influenced and his rejection of the act shall be void. Held permissible regulation in aid of the general scheme of the act.
A workmen's compensation act which, prescribing the measure of compensation and the circumstances under which it is to be made, establishes a method of applying the measure to the facts of each case by due hearings before an administrative tribunal, whose action upon all fundamental and jurisdictional questions is subject to judicial review, is not open to objection upon the ground that it clothes the administrative body with an arbitrary and unbridled discretion in violation of due process of law.
Trial by jury is not one of the rights secured by the Fourteenth Amendment.

Good faith and fair dealing in Lender’s Liability- Research

 By Yasser Latif Hamdani

Principle: A party to a contract breaches the implied covenant of good faith and fair dealing by interfering with or failing to cooperate with the plaintiff in the performance of the contract.

Case: Solfanelli v. Corestates Bank, MA, 203 F. 3d 197

Court: United States Court of Appeals, Third Circuit

Overview: The District Court concluded that Bank’s eleven month delay in selling the stock was commercially unreasonable. This was affirmed by the aforesaid court. It must be noted that in this case the debtor did not even request but rather withheld consent and yet the court ordered that the Bank’s delay was unreasonable.

Facts: The facts as far as they are relevant to our case here are that the plaintiff kept shares at collateral for debt. Unlike our case, the Bank sought the plaintiff’s consent to sell shares which was withheld. Yet the court ruled that the bank’s duty to conduct commercially reasonable sale was not waivable. 

Issues in federalism and constitutionalism

Laurence Tribe, American Constitutional Law Third Edition Volume One

Chapter 2 “Model I – The Model of Separated and Divided Powers

In order to grasp our federalism, one must focus not principally on abstract theories or examples from other national charters, but on the peculiar edifice of national and state governments erected by our Constitution- an edifice no less real by virtue of being implicit in the Constitution’s plan rather than explicit in its text. (Page 129)

The State cannot be unjustly enriched

A general equitable principle that a person should not profit at another's expense and therefore should make restitution for the reasonable value of any property, services, or other benefits that have been unfairly received and retained

Fibrosa v. Fairbairn (All ER p.135 H) “[A]ny civilised system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is, to prevent a man from retaining the money of, or some benefit derived from, another which it is against conscience that he should keep. Such remedies in English law are generically different from remedies in contract or in tort, and are now recognised to fall within a third category of the common law which has been called quasicontract or restitution.”