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Politics : Liberalism: Do You Agree We've Had Enough of It? -- Ignore unavailable to you. Want to Upgrade?

To: Kenneth E. Phillipps who wrote (128935)	4/4/2012 1:25:07 PM
From: TideGlider	3 Recommendations Respond to of 224744

Yes of course of the law is presumed constitutional, however, this one was challenged and reversed in Appeals Court and under review by the Supreme Court. It was the SGs job to support the law and it is the governments burden of proof. You are incorrect as usual. Kennedy was right and perhaps that proves you are a knucklehead. The Supreme Court allowed both sides to make their argument. The states apparently made a convincing argument and Justice Kennedy commented that changing the relationship between the federal government and the people would be a significant burden to overcome. He was right. It is a very difficult argument to overcome..

To: Kenneth E. Phillipps who wrote (128935)	4/4/2012 2:19:05 PM
From: TideGlider	3 Recommendations Respond to of 224744

Civil cases of the U.S. Supreme Court In Keyes v. Sch. Dist. No. 1, 413 U.S. 189 (1973), the United States Supreme Court stated: “There are no hard-and-fast standards governing the allocation of the burden of proof in every situation. The issue, rather, ‘is merely a question of policy and fairness based on experience in the different situations.’” For support, the Court cited 9 John H. Wigmore, Evidence § 2486, at 275 (3d ed. 1940). In Keyes, the Supreme Court held that if “school authorities have been found to have practised purposeful segregation in part of a school system,” the burden of persuasion shifts to the school to prove that it did not engage in such discrimination in other segregated schools in the same system. In Director, Office of Workers’ Compensation Programs v. Greenwich Collieries, 512 U.S. 267 (1994), the Supreme Court explained that burden of proof is ambiguous because it has historically referred to two distinct burdens: the burden of persuasion, and the burden of production. The Supreme Court discussed how courts should allocate the burden of proof (i.e., the burden of persuasion) in Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49 (2005). The Supreme Court explained that if a statute is silent about the burden of persuasion, the court will “begin with the ordinary default rule that plaintiffs bear the risk of failing to prove their claims.” In support of this proposition, the Court cited 2 J. Strong, McCormick on Evidence § 337, 412 (5th ed. 1999), which states: The burdens of pleading and proof with regard to most facts have been and should be assigned to the plaintiff who generally seeks to change the present state of affairs and who therefore naturally should be expected to bear the risk of failure of proof or persuasion. At the same time, the Supreme Court also recognized “The ordinary default rule, of course, admits of exceptions.” “For example, the burden of persuasion as to certain elements of a plaintiff's claim may be shifted to defendants, when such elements can fairly be characterized as affirmative defenses or exemptions. See, e.g., FTC v. Morton Salt Co., 334 U.S. 37, 44-45 (1948). Under some circumstances this Court has even placed the burden of persuasion over an entire claim on the defendant. See Alaska Dept. of Environmental Conservation v. EPA, 540 U.S. 461 (2004).” Nonetheless, “[a]bsent some reason to believe that Congress intended otherwise, therefore, [the Supreme Court] will conclude that the burden of persuasion lies where it usually falls, upon the party seeking relief.”