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Re: [dvd-discuss] Re: _DVDCCA v. Bunner_ - free speech loses!

"D. C. Sessions" <dcs@lumbercartel.com>
Sent by: owner-dvd-discuss@eon.law.harvard.edu

08/25/2003 09:05 PM
Please respond to dvd-discuss

        To:        dvd-discuss@eon.law.harvard.edu
        Subject:        Re: [dvd-discuss] Re: _DVDCCA v. Bunner_ - free speech loses!

>microlenz@earthlink.net wrote:

>> They punted again....throughout the decision the word "assumed" pops up often
>> enough that it's deliberate. Moreno pretty much called the majority on that in
>> his concurring decision. He stated he concurred with their decision but not
>> their reasons. He doesn't assume the facts of the lower courts and comes to a
>> different conclusion and so assumes nothing but concludes the court was wrong.

>I read the emphasis on "relying on the findings of the lower Court" to
>be a rather heavy-handed hint that the CSC was /very/ likely to
>reverse if that finding landed on them again.

I think this is probably correct. The majority opinion read "I assume you got the facts straight...","If I assume you got your facts straight, then I must decide this way.....IF I believe your assumptions" Also Moreno pointed out that he thought it a waste of time for this to keep bouncing back between the courts so I suspect there was a lot of discussion on this point.

As Fortas pointed out in Gideon Vs Wainwright, it is unhealthy (and unproductive) for a higher court to be continually interfering with the rulings of a lower court. This rather reminds me of the old joke of the famous opera singer singing an aria in front of the composer who continually says "encore...". After three or four times the singer asks why he keeps wanting to hear the same song and the composer replies "and you will sing it again until you get it right...encore!"

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