Category Archives: Courthouse

Category: Courthouse


So, in the event that you have been living under a rock for the last couple of weeks, you have read that Silicon Valley icon Peter Thiel was financing former wrestler and probable 2020 Republican presidental nominee Hulk Hogan’s lawsuit against Gawker, the verdict of which was a whopping $140,000,000. I thought this was an interesting piece of trivia. Apparently, though, it’s the End of Free Speech as we know it! Or, at the very least, concerning. As a matter of free speech.

The nature of the concern is that such litigation allows the wealthy to abuse the legal system to squelch free speech. One similar story, wherein Idaho millionaire Frank VanderSloot filed a frivolous lawsuit against Mother Jones that ended up costing the liberal publication and its insurers millions of dollars just to defend itself. That case is concerning because, as any physician (or physician’s spouse) can tell you, you can lose a lawsuit even if you win it, just by ending up in court. That’s certainly a concern, but I see very little that’s particularly alarming in the Gawker story itself, assuming that we’re okay with our litigious culture in the first place.

Whereas VanderSloot sued on his own behalf, Thiel helped others finance lawsuits. Is that a problem? Litigation critic Walter Olson thinks so:

Olson argues that if you went back a century or two and talked to British or American legal scholars, “they’d say of course these things would be used by the rich and powerful if you allowed them.” Under doctrines called champerty and maintenance, the law used to bar unrelated third parties from paying someone else to engage in litigation and financing a lawsuit in exchange for a share of the damages.

But states have loosened these laws over the past 50 years, in part because lawyers began to see easy access to the courts as being in the public interest. This was driven in part by the rise of public interest litigation — think, for example, of an environmental group finding a third-party plaintiff to sue a company to stop an environmentally sensitive development project.

“Awards are constantly being given to projects in which some wealthy person decides that someone needs to be sued, finds someone who has standing as a plaintiff, and generously funds their litigation,” Olson says.

Sounds ominous. But what is the alternative? The alternative is that nobody but the plaintiff can fund lawsuits. The environmental litigation is one example, but another would be the ACLU. Apart from contingency lawsuits, it would limit access to the courts to those with deep pockets. Now, maybe it is the case that we should rely on lawyers to filter out cases by way of their willingness to take them on contingency, but what a lawyer is willing to spend on a contingency case is likely to be considerably less than what they would spend if they had a benefactor. Again, access to the courts would be even more restricted by money than it already is.

I don’t honestly have very strong feelings one way or the other on this. Apart from Burt Likko and a few other folks around here aside, plaintiff attorneys mostly exist in our life as a predator in the shadows. Sonny Bunch has a list of such arrangements that liberals should like, and I am pretty pleased with the results of some of them. The argument in favor of these tends to be that David needs a Goliath to battle Goliath. In any event, the law is the law, and whether we agree with them or not there are reasons that we have these laws on the books. They are not to protect the Peter Thiels of the world. Maybe that should change.

GoliathVsGoliath-FullThiel may not be a good dude, but Gawker’s own history here is highly relevant. They do what they are accused of doing here, and not just to Hulk Hogan. Should they be allowed to under the umbrella of free speech? Should they not be allowed to under the umbrella of a right to privacy? Is a sex video with a celebrity “news”? What about a video in which a woman claims she was being raped? These are good questions that have nothing to do with Peter Thiel, except insofar as he made sure that Gawker wasn’t going to be able to spend plaintiffs into the ground or intimidate contingency lawyers with its largesse.

I don’t know whether Thiel was justifying in doing what he did here. It does seem clear to me that whether this can be considered “philantropic” or not, he is doing this for his own sense of justice. If he were merely looking to intimidate, nobody would have had to dig to find out he was behind it because he would have wanted everyone to know about it. This was in retaliation for Gawker having officially outed him. It’s been said that Thiel’s closet was a glass one, or that he had no right to be in a closet to begin with. Silicon Valley is pretty liberal, after all! Thiel in turn claims that this sort of thing hurt him with overseas investors who are less tolerant, and that he had a right to his privacy. He obviously didn’t have a legal right to his privacy, since he didn’t or couldn’t sue for his outing, but some degree of pissed-offedness seems understandable. Some of the other cases he’s pursuing, including suing individual lawyers, do are discomforting.

At the end of the day, though, the Hogan’s lawsuit that threatens to destroy Gawker was not frivolous. He won. Maybe we think the jury got it wrong, or that the basis on which he one is a law that needs to be changed. Gawker lost in good part because it felt invulnerable precisely because it believed it was the Goliath and that it could act with impugnity. Anger at Thiel for funding the successful lawsuits are hard to separate from anger that Hogan got his day in court to begin with.

Category: Courthouse

I’m reading a book on parenting difficult children (I love Lain, but we have a difficulty problem). I may have some more thoughts on the book to share at a later date, but there was one disconnected tidbit I wanted to share. The author, John Rosemond, was trying to make the case that parents should not ask their children questions that (a) the parent knows the answer to and (b) the child doesn’t want to answer. In the specific context of the book, it was “Do you have chewing gum in your mouth?” and the rationale against this is that the child will lie or evade answering and it creates unnecessary drama. Instead, the parent should simply say “You have chewing gum in your mouth and you need to spit it out.” It’s a fair point, within certain constraints. But I found the example he used to be kind of funny:

If a state trooper pulled you over and asked, “Excuse me, but were you speeding?” would you admit it if you had been? C’mon! Be honest! The closest you’d come to telling the truth would be, “I don’t think so.” That’s why state troopers, when they pull you over, simply say, “I stopped you because you were speeding.” If they ask no questions, speeders are far less likely to tell lies.

I found this funny because, well, isn’t it the case that the cops always ask you a question when they approach you? That question isn’t “Were you speeding?” but rather “Do you know why I pulled you over?”

The rationale, from what I understand, is that if you give the correct reason, you’re going to have a hard time denying it later. Or something like that. Apparently the question has gone out of style, but I think a lot of cops never got the memo if that’s the case.

Category: Courthouse

In 1984, the narrator mentions screens that enable the government to observe citizens in their own homes. Citizens were not permitted to turn these screens off. For quite a while I’ve seen a correlation between these surveillance screens and internet access, cell phones, and now i-phone technology, the main difference being that we choose to use them. We can turn them off, and we do, but we depend on them nevertheless.

These devices make us “observable” to others, not necessarily or only to the state, but in a way that potentially guides our actions and maybe even the way we think.

We buy things online. Most of those purchases are in principle more traceable than cash purchases and perhaps even more traceable than purchases by check. At any rate, Amazon seems to know what I might be interested when I log on. Our search terms are (or so I hear) somehow remembered by my Google and contribute to what comes up when we search. When I go to weather dot com, the site knows I live in or around Big City. I assume that it would be fairly easy to track down my real identity from the blogs I comment and write on, or at least narrow the identity to my apartment building. Even dumber technologies like my flip phone track my phone calls and messages and my time zone.

And this is mostly beneficial to me. All this connectivity is entertainment, shopping, and a way to express myself and talk with people online I would probably never get a chance to meet in real life. I’m part of online communities where in my own way I have a voice and an opportunity to speak my mind and learn from others. I have and use a Roku, which streams channels from the ‘net. I listen to music on YouTube.

This is all mostly voluntary. I choose to turn on my computer first thing when I get home. The computer remains on until I go to bed, even if I’m not using it.

Still, I can’t shake the thought that I’m patched into a world where I and my choices are observed or at least observable.

I don’t think I’m paranoid. If I were, I wouldn’t use the computer at all. Or I’d use it less often. Or I’d take greater precautions than I do to protect my anonymity. I don’t think government bureaucrats are monitoring my to’ing’s and fro’ing’s on the internet. I am wary of identity theft, but not that wary.

As I see it, I’m taking two gambles. The first is that my life and views are so uninteresting and so non-influential and enough on the mainstream that no one (I hope) sees any special need to track me down. The second gamble is that there are a lot of fish in the pond for identity thieves, and I hope the chances of me getting my identity stolen is lessened by some sort of law of numbers, in addition to sensible precautions I can take myself.

Above, I compared this situation with Orwell’s 1984. It’s not entirely a good comparison. I’m not arguing that being “observable” is totalitarianism. I’m not even arguing that being observable is the same thing as being observed. In some ways, by being more exposed and more “visible” to the online world, I enjoy greater privacy than people did before such things existed. I probably enjoy more privacy on the web in 2015 than I would, say, in a stereotypical small town or closed neighborhood or enclave where everyone knows everyone else’s business.

But there’s also something not quite voluntary about it even though I choose it freely. It makes me uneasy.

Hillary Clinton, never one to miss an opportunity to pander, told a prospective Iowa voter that he had “a great idea,” in suggesting she appoint Obama to the Supreme Court.

It’s a terrible idea, and that has nothing to do with how I feel about Obama’s presidency, his character, or his qualifications for the job.

My friend Ed Brayton, who blogs at Dispatches from the Culture Wars, noted on Facebook that “Obama’s record on civil liberties and in cases before the Supreme Court is pretty terrible. I would have no faith in him as a justice.” He has been bad on civil liberties, but sometimes people change their perspective when they’re in a different position (c.f., Earl Warren). I’m not positive Obama would be a horrible civil liberties justice (although I’d be happier with the appointment of someone with a better track record, for sure).

Others might worry that Obama is too much of a leftist, because apparently there are people who still believe that. I don’t find that a serious concern. More pointedly, some might note that he doesn’t have any judicial experience, and that having been a part-time teacher of constitutional law isn’t the most impressive resume for a SCOTUS appointee. But of course it’s a fairly recent tradition that all appointees must have lengthy judicial experience, and one that appears to me to be largely driven by the American Bar Association’s inappropriate assumption of the role or arbiter of qualifications for a public office (and we worry about the Koch brothers!). Personally, I I think there are umpteen thousand Americans who are qualified for the job, and presidents’ talk about selecting “the best” person is 100% FDA Prime bullshit. And a little less technical lawyering and a little more understanding of the Constitution as more than a legal document–I’m looking at you, Tony Scals–wold be good.

But my overriding concern is the growth of presidential power. And one of the factors promoting that has been a Supreme Court that has been less eager to check presidents, and that–according to political scientists Matt Crenson and Ben Ginsberg in their book Presidential Power: Unchecked and Unbalanced–is at least in part because more and more Supreme Court justices have extensive background in the executive branch, rather than gaining experience elsewhere. They become enculterated in the concerns and needs of the executive, and more willing to give presidents some leeway, rather than trying to keep them in check.

Presumably, presidents have always appointed judges whom they found politically congenial. What has changed is that preisdnets no longer choose judicial appointees with legislative backgrounds, and the political milieu in which judges originate presumably affects their institutional affinities and sympathies. During the nineteenth century, federal judges typically emerged from the country’s electoral and representative systems. …

The fact that many federal judges had served, continued to serve, and often would serve again as legislators helped to reinforce legislative primacy by ensuring that the federal bench would hvae a certain respect and partiality for legislative institutions. …

Judicial deference to legislative power has practically disappeared today …

What has changed in recent decades is the character of judges’ political and governmental experience. Few recent or contemporary federal judges have ever served in a legislative body, but many have served in executive agencies or in federal or state judicial institutions…Today’s judges are recruited primarily from executive and judicial positions, not from legislatures. [pp.305-314]

Crenson and Ginsberg have a table showing the decline of federal judges with judicial experience from a high of almost 81% in 1830, to 38% in 1900–around the time presidential power began its upward trend–to 4% in 20005. We need fewer judges with executive backgrounds, not more, and certainly not one so deeply steeped in sympathy for the office of the presidency itself.

LBJ adviser George Reedy, in The Twilight of the Presidency regretted that the President has become so sheltered that there is no one to tell him “go soak your head” How likely is it that a Justice Obama would tell future presidents–not just a President Hillary Clinton, but a President Rubio, Cruz or Trump, too–to go soak their head?

Category: Courthouse

In my last post, I argued that it didn’t “seem right” that a police officer would make up an “offense report” because she was refused service at a fast food place. I was also uncomfortable with the fact that she seems to have somehow gotten personal information from someone who was disinclined to provide it. I finally suggested that businesses should have the legal right to refuse business to police officers just because they’re police officers and still expect the same level of protection that any business or person ought to expect from the police.

I guess a fair question to ask of my OP is, what would have been a right way for this all to have turned out? That question can be broken into two others.

  1. What is the most the officer could have done to pursue her complaint and yet meet my standards for appropriate conduct?
  2. What would have to be true of our legal system for me to be okay with what the officer did do in this case, which was to write up an “offense report”

To answer the first question, my preference would be that the officer complain to the fast food company, using whatever avenues that already exist for a customer to issue a complaint in a related case. By “related case” I mean a case where a person is denied service for a reason not prohibited by law and where the proffered reason appears to be the real reason. In other words, I’d say it’s a different matter altogether if, say, the police officer is black and the employee says they don’t like to serve police officers but the real reason the employee is saying that is arguably that the officer is black.

My answer to the second question depends on what access any private citizen would have in a similar case. Let’s say someone refuses business to me because I am a public employee, and let’s say I have my name tag/badge that shows who I work for. Let’s also say it’s obvious from the situation that they’re not discriminating against me because of my gender, race, ethnicity, or religion. If I can call the police and the police can write up an “offense report,” then I concede that a police officer ought to be able to do the same if it happens to her/him.

I still don’t concede that I or the cop have any right to obtain contact information from an employee who declines to furnish it, especially because no crime or anything civilly actionable is being alleged. Is a crime, or at least an something civilly actionable, being alleged? Maybe. In the comments section of my last post, I referred approvingly to the idea of an “‘implied contract’ associated with being open for business” mentioned in this BHL post. Not being a lawyer, I wouldn’t know. But if it is something that I could allege and use to invoke the writing of an “offense report” and to obtain personal information from someone who doesn’t want to give it, then I suppose that an officer, as a citizen, ought to have the same prerogative.

That said, even if a cop then has the legal right to pursue the matter, I’m less certain as to whether he or she ought to pursue it. The privileges cops enjoy come with the responsibility to be judicious, and that sometimes means taking certain slights in stride. But that’s a different issue.

Now is probably the time to say that I do think it’s wrong to refuse service to someone without a “good” reason. What counts as “good” is probably in the eye of the beholder, but unless the cop in this case is leaving something out of her account, I don’t see a “good” reason to refuse her service.

Category: Courthouse, Market

Apparently, somewhere in Florida an Arby’s employee refused to serve a police officer. The police officer complained and talked to a manager. The manager laughed and said the employee doesn’t like serving cops. One or both of the the employees seems to have been reprimanded although exactly what the upshot was isn’t entirely clear to me. The company apologized, saying that Arby’s values our men and women in blue, etc., etc.

The officer filed an “offense report” over the incident, not linked to above. Here’s her narrative of what happened. I’ve retyped it, so assume all typos are my own. I’ve also redacted some information:

On this date, I responded to the above location [redacted], Arby’s, to order take-out food through the drive thru window. Upon ordering at the microphone, the clerk seemed slightly rude and short with his responses, but I was having difficulty hearing him so figured there might be a problem with their speaker system. Once I received my total, I drove to the take-out window to pay for my food.

When I drove around, the clerk, [redacted], took my credit card as a form of payment. At this time the manager, [redacted], approached the window an stated, “He doesn’t want to serve you because you are a police officer.” [Redacted] was referring to [redacted] and referenced him by looking at [redacted]. At this time, [redacted] had not processed my credit card and had to be ordered to do so, by [redacted]. I explained to [redacted] that this made me extremely uncomfortable and now wasn’t certain I wanted to dine at the restaurant. [Redacted] assured me everything was ok and handed me my food. [Redacted] even laughed and said he is allowed to refuse to serve me.

I was uncertain of the condition of my food, and felt for my safety, it would be best not to eat there. I responded inside and [redacted] provided me with a refund. [Redacted] provided me with his contact information and store information but [redacted] refused to have contact with me, ignored me and refused to provide his contact information to me.

This incident is being documented for informational purposes.

Somehow, the officer seems to have gotten information about the employee “who refused to have contact with” her, too, because on the “offense report” we see the following info about both employees: birth dates, driver license numbers, domicile address, and place of birth, which in the case of the non-cooperative employee was the Dominican Republic. I don’t know how this information was acquired. Maybe Arby’s disclosed the information from its personnel records (That’s why I’m not linking to the document itself. Too much personal information.)

The employees as far as I can see didn’t commit an “offense” recognized by law. (And one thing we don’t get from this “offense report” is that the officer was refunded her money. At least that’s what the linked-to news account above says.) I think I can also easily imagine a scenario in which the manager, as the father said in the linked to article above, was just joking. I can easily imagine why the one employee might not have wanted to disclose their personal information.

Now perhaps I’m making too much of the fact that this report is called an “offense report.” Those are the words at the top of the form, but the officer does write that the report is for “informational purposes” only. It’s probably the standard form an officer fills out when something happens regardless of whether a crime is even alleged to have been committed. The employees weren’t arrested and as far as I know and hope, they weren’t tailed or followed by the police trying to pin something on them or harass them. And I guess it’s encouraging that the officer just wrote a report and didn’t, say, kill the employees. I’d rather see more report writing and fewer incidents of brutality.

And I do believe all people should be treated with respect. If it’s true that the employees weren’t joking and were really trying to stick it to the customer, then they shouldn’t have done that. And as a pragmatic consideration, you probably want the cops on your side.

Still, the fact that the officer might have responded much more aggressively and chose not to and the fact (if it is a fact) that the employees were rude, don’t put me completely at ease.  Police officers are supposed to “serve and protect” the public. If a member of the public decides they don’t wish to serve officers, that person should have that right, and, I’d add, expect the full protection of the police should, say, a robbery take place.

Category: Courthouse, Market

I suspect that in any discussion about whether unions are good or about whether such and such a policy designed to promote or weaken the appeal of unions is good, most parties to the discussion will profess to support unions.

In my view, the question is less whether we support unions and more under what circumstances we do and what policies we’d support or at least tolerate. As Oscar pointed out in a recent thread, he supports unions, but not the sort of “regulatory capture” exemplified by the proposed union exemptions to L.A.’s minimum wage law (a perfectly reasonable position, in my opinion).

Here are some considerations (pulled mostly from the American context):

  1. Do you support union-shop or “fair share” arrangements, where all employees must contribute union dues? Or do you support “right to work” laws?
  2. Do you support closed shop arrangements, where a prospective employee must be a member in good standing of a union before being eligible to be hired?
  3. Do you support “secondary strikes” or “secondary boycotts” where a union or its members refuse to cross other union’s picket lines or refuse to work for employers that do business with a struck firm?
  4. Should public employees be allowed to unionize? Some public employees but not others? What powers to negotiate should these unions have (wages only, wages + working conditions)?
  5. Should the law require employers to negotiate “in good faith” with a union that can demonstrate a minimum threshold of support? If so, what should the requirements of good faith be?
  6. Should the state require “first contract” arbitration, where a union negotiation automatically goes into arbitration after a certain time period has elapsed, so as to ensure that the union obtains a “first contract”?
  7. What should an employer be able to do, or not be able to do, to oppose unions? What should a union be able to do, or not be able to do, to promote unions?
  8. What, if any, preferential policies would you accept that would help promote unions? (I’m thinking of things like the minimum wage exemption Oscar wrote about, but also of things like antitrust exemptions, exemptions from injunctions, and probably other things I’m not thinking of.)
  9. Under what circumstances would you cross a picket line to shop at a struck firm?
  10. Under what circumstances would you cross a picket line to work at a struck firm?

On a lot of these issues, I myself am undecided or have changed my mind. You can no doubt think of other questions, and if so, feel free to offer them.

I used to think being gay was wrong. I supposed that if you asked me, I would have said “being gay” wasn’t wrong, but “choosing to live as a gay person” was. I’m not sure I made that distinction at the time. I also thought it was appropriate for the state to encode its objection against homosexuality in its laws. While I probably would not have supported outlawing gay sex or instituting/continuing a formal program against gays, I believed the state shouldn’t offer any protections to gay people as gay people.

For example: In 1992 (I was 18 then), Cibolia had an amendment up for consideration by voters that would have invalidated then existing civil rights protections for gay people. These were laws that Danvar and a couple other cities had adopted to forbid discrimination in housing, hiring, and other practices based on sexual orientation. I supported that amendment, not so much because I bought into the “special rights” argument that amendment supporters invoked. I supported it because I thought such anti-discrimination laws meant the state “legitimized” and therefore implicitly recognized that being gay was acceptable. (For the record, the amendment passed and was overturned by the US Supreme Court 4 years later, the first of a string of decisions written by Justice Kennedy that led to Obergefell.)

My views then made up an almost textbook case of “bigoted position.” I can see that now. Perhaps unsurprisingly, I didn’t see that then. It took me a long time to change my mind on such issues.

The principal reasons I changed my mind were the following, in descending order of importance:

1. I noticed a pretty strong disjuncture between the Lockean idea of consent of the governed and the need for civil liberties with laws restricting gay rights.

2. As I grew up and from a variety of personal experiences and revelations, I came to have more empathy for gay persons.

3. Gay rights activists forced me to try to justify and rethink my position.

No. 3 was in last place for a reason, and in my opinion, was the least important for my conversion. My anti-gay views at the time certainly had a hearing at Cibolia State University, but it was a minority view there. I don’t think I ever voiced it, in part because the pro-gay rights position, as I heard it, was of the shaming sort, similar to what we find in Sam Wilkinson’s post Over There. It wasn’t uncommon to hear any objection to gay rights be answered with “why are you insecure about your sexuality?” or with a lecture about how Ancient Greeks thought homosexuality was good, so we should, too.

One thing the activists accomplished, however, was to compel me to justify, at least to myself, why I opposed gay rights. The stark reasons I mention in the first paragraph of this post solidified as my own answers to activists’ positions. As later events challenged and undermined those reasons, I began to see them as I see them now, as bigoted positions.

Perhaps my position would have changed sooner if the activists had tried to engage people like me more empathetically than they did. Perhaps not. But I realize that the goal of such activism isn’t necessarily to change my or anyone else’s mind or to honor my position on the matter. It could be to rally those who already agree, or to marginalize a certain position as bigoted or beyond the pale. In 1992, it was probably as much of a defensive posture as anything. Matthew Sheppard’s murder still hadn’t happened yet. And not only was Cibolia State University very close to where the murder would happen, it wasn’t a comfortable place to be gay or to support gay rights despite what seemed to me at the time to be the majority pro-gay rights view. There was one story  of a person wearing a “straight but not narrow” button being physically assaulted, assuming I’m remembering things right.

Even now, in 2015, the righteous, crusading, vengeful tone we see in Sam’s post is probably not wholly about righteousness, crusading, and vengeance. It’s still probably not safe to be openly gay, regardless of what the Supreme Court says about the right to marry. Still, perhaps that tone ill serves the cause, as several on that thread, including Will and Mr. Blue from Hitcoffee, have tried to note there.


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Greetings from Stonebridge a fictitious city in a fictitious state located in a tri-state area in the interior Mid-Atlantic region. We're in western Queenland, which is really a state unto itself, and not to be confused with Queensland in Australia.

Nothing written on this site should be taken as strictly true, though if the author were making it all up rest assured the main character and his life would be a lot less unremarkable.

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