Monday Open Thread

Comments

[not guilty]

Donald Trump's lawyers in Fulton County have asked the judge for additional time to consider whether or not to join in Mike Roman's evidence-free motion to disqualify Fani Willis. https://www.washingtonpost.com/national-security/2024/01/12/fani-willis-nathan-wade-trump-georgia/ That circumspection is commendable.

The allegations of the motion remain troubling. If I were a voter in Fulton County, I would think long and hard before voting for Ms. Willis. The more I think about the legal merits of the motion, however, the more skeptical I become.

Suppose two lawyers representing the same defendant were engaging in hanky panky with one another. Would that enable the prosecution to move the court to disqualify them from further participation in the defense of their client?

[Kazinski]

“Suppose two lawyers representing the same defendant were engaging in hanky panky with one another. Would that enable the prosecution to move the court to disqualify them from further participation in the defense of their client?”

How much was one Lawyer paying the other lawyer with public funds to assist her with the case?

How many high end vacations did the lawyer that was getting paid with public funds take the lawyer who approved the expenditure of public funds?

I expect the result of your hypothetical would be much the same as in this case, the two lawyers would be removed from the case and be lucky not to have their license to practice law suspended or revoked.

And the client in your hypothetical would be left wondering whether the self dealing between his lawyers affected his interests, whether the needlessly introduced complications in order to increase billings, or thwarted speedy resolution of the case because they were having such a good time.

If he had been convicted before all the details were known he may well have his conviction thrown out.

[Stephen Lathrop]

How many high end vacations did the lawyer that was getting paid with public funds take the lawyer who approved the expenditure of public funds?

Kazinski, note how that premise bypasses completely the question of legal relevance raised by not guilty with regard to the Trump prosecution. To make it relevant, wouldn't you have to show some intent to mount the Trump prosecution illegitimately, for the purpose of funding a vacation? Is that what you allege is happening?

[not guilty]

Kazinski, how does anything that Mike Roman claims happened (without offering evidence thereof) adversely affect Mr. Roman?

[Kazinski]

Short answer is thats up to the judge to decide.

Also Roman is not the only one with a stake in this case. Willis and Wade select pretty strongly for sexual precocity the people of Georgia who have an expectation the authority they confer on Willis should not be misused.

And one other question, this isn't the first related case where someone is requesting Willis to be removed. The other one the judge did remove her from an investigation of the GOP Lt. Gov nominee after she hosted a fundraiser for the Democratic Lt. Gov nominee, how was the target of that investigation adversely affected by a fundraiser for his opponent?

[not guilty]

It is for the judge to decide, based on evidence. The burden of producing such evidence is on the proponent of disqualification.

How has Mr. Roman been adversely affected by the conduct that he complains of? Show your work.

[Mr. Bumble]

Don't think Kaz is representing Roman.

[Michael P]

NG has only one shtick, and it continues to be unspeakably lame.

"How has a member of the public been harmed by a public official directing public funds to a paramour and engaging in marital infidelity while holding a position of public trust? Show your work!"

Sounds like a schoolmarm, except schoolmarms know better than to pretend to be absolute morons.

[not guilty]

Michael P, I have found that calling for supporting facts and legal authorities is a remarkably effective way to smoke out ipse dixit assertions and motivated reasoning.

[Michael P]

No, you have found that it's a good way to get people to roll their eyes and walk away because you are arguing in bad faith with stupid standards.

[not guilty]

No, they don't walk away. They tuck their tails and run like scalded dogs.

[Michael P]

Sure, you just keep thinking that, all the while you ignore comments that rebut your baloney. Yawn.

[Drewski]

Well, no, the burden is on the one making the motion. Burden-shifting is a question of law, not your feels.

[Kazinski]

'The burden of producing such evidence is on the proponent of disqualification.'

That's not true, and you should know that, Roman's lawyers filed a motion with allegations, the judge then orders Willis and Wade to respond to the motion and they have an obligation to truthfully answer the judge. They aren't defendants entitled to presumption of innocence, they are lawyers trying a case in his court accused of misconduct.

I suppose they could take the 5th amendment if there is a possibility of fraud or misappropriation of public funds, but even then the judge could then decide to remove them just to be on the safe side.

[not guilty]

Uh, Mr. Roman's unsworn motion includes no supporting evidence, only gossip and averments made "on information and belief." https://s3.documentcloud.org/documents/24352568/roman-motion-to-dimiss-010824.pdf No supporting affidavit(s), no averments of personal knowledge, nada. Even Donald Trump's counsel are unwilling to sign on prior to seeing the prosecution response.

A presumption of regularity supports prosecutorial decisions and, "in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties." United States v. Armstrong, 517 U.S. 456, 464 (1996), quoting United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926).

Kazinski, what is your basis for disputing that the burden of producing evidence is on the proponent of disqualification? It is routine in the practice of law that a litigant seeking an order from the court is required to carry the burden of justifying the requested relief. Do you have a statute or judicial decision supporting your position?

All lawyers, including Ashleigh B. Merchant who represents Mr. Roman, have a duty of candor to the Court. The filing of an incendiary motion such as this with no supporting evidence is reckless. It is time to see whether Ms. Merchant's word processer has issued checks which her proof can't cash.

[not guilty]

Still waiting, Kazinski. What is your basis for disputing that the burden of producing evidence is on the proponent of disqualification?

Why do you feel entitled to make shit up as you go along, such as reversing the burden of production/persuasion? To paraphrase the late Donald Rumsfeld, you go to court with the law you have, not the law you might want or wish to have at a later time.

[Kazinski]

Keep waiting, the Bills and Steelers are on.

But do keep checking back every 10 minutes for the next 15 hours.

[not guilty]

If you've got nothing, man up and say so.

[David Nieporent]

How has Mr. Roman been adversely affected by the conduct that he complains of? Show your work.

Roman might not have been indicted at all if Willis didn't allegedly have a financial interest in pursuing this prosecution.

[not guilty]

The word "might" there is doing some heavy lifting. As in speculation and conjecture.

[David Nieporent]

Are you under the impression that one must show an actual adverse effect? Because one doesn't.

[Intelligent Mr Toad]

The fee, apparently, ($4K for two eight-hour days = $250.00 per hour) was less than the average lawyer gets in the State of Georgia ($286.00 per hour).

[Mr. Bumble]

...and what does the "average" prosecutor get?

[Michael P]

https://www.clio.com/resources/legal-trends/compare-lawyer-rates/ga/ seems the likely source for the $286/hour number, and says $200/hour for criminal law.

There's a lot more information available about annual salaries, and 2000 hours/year is about par, but I don't know what overhead structure looks like for lawyers. Tech R&D overhead burden (billed hourly rate divided by employee hourly pay rate) -- which is where I have some experience -- can easily be from 100% to 300%, usually increasing with firm size because of things like formalized QA and pursuing bigger programs that require more coordination across the workers.

[Life of Brian]

The fee, apparently, ($4K for two eight-hour days = $250.00 per hour)

Um, he’s received over $600k at this point.

But since you mention the 8-hour days, the ethicist’s quagmire represented by Wade’s invoices is another piece of the puzzle that nobody has talked about yet.

His invoices all contain, at most, a single entry per day (some entries cover multiple days because — can’t make this up — he ran out of room on the single-page invoice) with a cursory description of the work. The billing is generally (and magically) 8 hours every day, but in no case are in less than 1 hour increments (0.1 hours has been typical for many years, with a distinct minority of shops still billing in quarter-hour increments).

In any more conventional situation I've ever seen or heard of, if a law firm lost its mind and somehow had the temerity to submit such a joke of an invoice, nearly any client with any concern at all about money charged vs. value provided would refuse to pay it without substantial additional detail — and lacking such likely would refuse to pay a substantial portion of it.

So just comparing raw billing rates (even setting aside how $250/hr compares to how much this apparently small-ball personal injury/traffic offense attorney was billing for his time prior to this bonanza landing in his lap) is only a small part of the story.

[Mr. Bumble]

While I haven’t looked at the billing records it has been reported that one entry was for 24 hours in a single day. That’s dedication.

[Life of Brian]

I think that particular part is overblown and a distraction from the many actual issues. He clustered days together sometimes to save space(!), so they're probably just looking at one of a number of entries that represented three 8-hour days.

[Brett Bellmore]

Yeahnope. I looked at that. It was 24 hours on a particular task, reported to have been finished on a particular day. Not to have all happened on that day.

[Lady Dada]

First, I expect they would have to disclose their personal relationship to the client, in this case the people of Georgia. And yes, if lavish vacations were involved as they appear to be here, I would object to paying the bill, as should the people of Georgia.

It may not bear on Trump's guilt or innocence, but it taints the trial. And I agree that it could lead to being disbarred if this were a client from the private sector, especially billing for vacations. I could never get away with this in my private practice.

[Stephen Lathrop]

not guilty, that point seems well made, except for one problem. The folks it must convince, and even subdue, have proved themselves elastic with regard to principled thinking. For them, outcomes, not principles, govern every opinion touching on policy or law. What you have proposed tends toward an outcome they hate, so they will denounce your proposal, not only publicly, but inwardly, as immoral, while they applaud actual treason as virtue.

[Commenter_XY]

Not guilty, this whole sorry episode just shows why you do not smash the hired help. I am sure in your 28 years of practice, you saw something similar at least once (prosecutor smashing hired help). And testifying in a messy, nasty divorce case. What is next, an alienation of affection lawsuit from her paramour's wife?

My question: When the case is reassigned to another prosecutor, does that prosecutor add/drop/modify charges? Can they legally do that?

[Kazinski]

Yes they can.

[Commenter_XY]

Who selects the next prosecutor? The Smasher or someone else like the Governor?

[John F. Carr]

Quoting the Prosecuting Attorneys’ Council of Georgia (https://pacga.org/resources/conflicts-of-interest/):

Effective July 1, 2022, the Prosecuting Attorneys’ Council of Georgia received statewide authority to appoint substitute counsel when a district attorney or solicitor-general’s office has a conflict of interest in a case. Since 2002, the Georgia Attorney General had been fulfilling that role. During the 2022 legislative session, the General Assembly modified O.C.G.A. § 15-18-5 (district attorney conflict) and § 15-18-65 (solicitor-general conflict) to make the Executive Director of the Prosecuting Attorneys’ Council of Georgia the appointing authority.

The Official Code of Georgia directs that the main avenues for appointment of conflict cases are other district attorneys and solicitors-general, as well as the Georgia Attorney General. Therefore, the responsibility for prosecuting conflict cases belongs to all elected prosecutors in Georgia.

If the elected prosecutor has a conflict of interest, he or she must submit a notice of recusal to the Prosecuting Attorneys’ Council of Georgia. McLaughlin v. Payne, 295 Ga. 609 (2014).

The last sentence means the Council can not take Willis off the case unilaterally. It is unclear from this page whether a special prosecutor can be replaced by the Council absent a personal or judicial finding of conflict of interest.

[Commenter_XY]

Wow....so The Smasher has to submit a form to take herself off the case. Or the judge can do it. Interesting.

[John F. Carr]

McLaughlin v. Payne cited by the Council is worth a look.

A classmate of the District Attorney's daughter was allegedly molested by the defendant Payne. The DA talked with his daughter about the abuse and testified for the prosecution at trial. Payne was convicted and petitioned for a writ of habeas corpus.

The Supreme Court of Georgia distinguished two situations. A lawyer (prosecutor or otherwise) can not testify about a contested fact and participate as lawyer in the same case. The rule that only one role may be played is applied only to an individual. An assistant DA can take over if the DA testifies.

The problem in Payne's case was, the DA had an emotional involvement. That is a disqualifying conflict of interest. When the DA is disqualified, the whole office is disqualified. The court did not apply a "prejudicial error" standard. In the present case, if Trump is convicted and it turns out Willis had a conflict of interest Trump would be entitled to have his conviction set aside.

https://casetext.com/case/mclaughlin-v-payne

[John F. Carr]

Just to get the terminology straight:

After multiple hearings, the habeas court found that McDade had a conflict of interest, had testified falsely at trial, and that appellate counsel should have pursued these two issues on appeal. [...] Nonetheless, the habeas court found that McDade had a personal interest in the case that disqualified him from participating in the prosecution of the case at all, not just from serving as trial counsel. And, this finding does raise an issue implicating not only McDade's role in the prosecution, but that of his entire office.

So "personal interest" or "conflict of interest" as you like.

The Supreme Court did not rule on whether the finding of perjury was supported in the record. The prosecutor later retired to settle a corruption investigation that appears to be unrelated to the molestation trial.

[not guilty]

It is entirely appropriate for the issues raised in Mr. Roman's motion to be ventilated in a pretrial evidentiary hearing, as Judge McAfee has indicated will be done in this case. Whether or not the District Attorney General "has acquired a personal interest or stake in the defendant's conviction," Williams v. State, 258 Ga. 305, 314, 369 S.E.2d 232 (1988), which would require vicarious disqualification of the entire office is a question of fact. The burden of production and of persuasion is on the proponent of disqualification.

The McLaughlin v. Payne decision is instructive. There the habeas corpus trial court determined that the District Attorney had a personal interest in the prosecution, and the Georgia Supreme Court opined that that finding was not clearly erroneous:

The habeas court's finding that McDade had a personal interest in the prosecution was supported in the record. As the habeas court noted, McDade testified before the jury that his conversation with his daughter was "very troubling," and that his daughter's conversation with the victim was emotional. McDade described his relationship with his daughter as very close, and her as an emotional person; he testified that his daughter's concern caused him to pay particular attention to the situation, and that he was "concerned that she's concerned." The habeas court also noted that, at trial, McDade had bolstered the credibility of another witness. Further, the habeas court noted that McDade had testified at the hearing on the motion to disqualify the district attorney's office that he had ceased to act in the prosecution shortly after the November 14, 2000 interview with Payne, but found that, nonetheless, the screening procedures supposedly erected to isolate McDade from the prosecution were not maintained, specifically citing testimony that, sometime in 2005 or 2006, McDade was involved in a witness interview with the victim. Accordingly, the habeas court did not clearly err in finding that McDade had a disqualifying conflict of interest in Payne's prosecution in that he had "acquired a personal interest or stake in the defendant's conviction." Williams v. State, 258 Ga. 305, 314(2)(B), 369 S.E.2d 232 (1988).

295 Ga. 609, 614, 761 S.E.2d 289 (Ga. 2014).

Any pretrial determination that Judge McAfee makes regarding Mr. Roman's motion will be reviewable on posttrial appeal in the event of a conviction of Mr. Roman. To this point no other defendant has joined in the motion, which would be necessary to preserve the issue on appeal for him or her.

[not guilty]

I am aware of a longtime district attorney general who carried on an affair with his secretary. He became a judge, and she followed him from job to job. I am not aware of any prosecution being affected by that.

I am aware of a criminal court judge who was involved with the senior assistant public defender assigned to her courtroom. They later married, and he shot himself to death.

I am aware of a circuit court judge who dated the district attorney general. She went on to serve on the state supreme court.

As Woody Allen said, the heart wants what it wants.

I don't know about Georgia law in particular, but in general once an indictment is found, dismissal requires leave of court. A new prosecutor could seek a superseding indictment with new or different charges from a grand jury.

[Commenter_XY]

Woody was right. He should have added,

....and it isn't just what the heart wants, either. 🙂

[Dr. Ed 2]

"...we seriously question whether he can command the respect and authority essential to the performance of his judicial function,"

That's what the Mass SJC wrote in booting a judge who'd had an affair with a social worker.

See: https://www.wbur.org/news/2018/05/24/judge-thomas-estes-sexual-affair

[John F. Carr]

The Trial Court paid the social worker $425,000 after she said it was harassment rather than an affair. Her lawsuit against her employer and the judge was settled on undisclosed terms.

https://www.berkshireeagle.com/crime/massachusetts-trial-court-settles-sexual-harrassment-lawsuit-judge-thomas-estes/article_89fbe43e-8057-11ec-acaf-972435462eea.html https://www.courtlistener.com/docket/6295107/cagle-v-estes/

[Kazinski]

If Willis and Wade were just having an affair it would be a nothing burger, so I understand why you are focused on that.

The fact she personally selected him as a special prosecutor giving him a contract without a bidding process. And then was taken on lavish vacations by him funded by those very funds, is the problem.

As a former municipal employee, I can tell you, we had strict regulations of gifts or meals provided by vendors, whether or not we had formal decision making power over their contracts or purchases, whether or not we also were having an affair with them, which probably would not be against any rules.

[Drewski]

They may, by policy, require an indictment for new charges (Georgia law doesn't require one for the crimes in question). Dropping and modifying charges requires leave of the court, but it would be bizarre for these to be denied.

[Lee Moore]

How much was one Lawyer paying the other lawyer with public funds to assist her with the case?

That, Shirley, is the relevant one. Let us pretend that Ms W and Mr W are husband and wife. If wife, who is in control of spending public funds on prosecutions, directs such funds to husband, then she has a financial interest in husband pursuing as many cases as possible, as expensively as possible.

Thus wife has the appearance of a conflict of interest - does her funding of husband's pursuit of said cases reflect her public duty to prosecute cases that ought to be pursued, without fear or favor, or does it reflect her financial interest ? And defendant has the "interest" that he should not be prosecuted to fill the W family coffers.

Now we must relax the stipulation of marriage and substitute the beast with two backs. The DA has less of a financial interest than would a wife, but a case might certainly be advanced that she does not have none. Does she profit at all from the state funds that drop into her paamour's pocket ? Not a vacation, not birthday meal, not even a coffee ?

And then, even if there really is no financial interest, there may be a different kind of interest. Perhaps she might fear that Mr W would be much less interested in her, if she did not control the spigot pouring cash into his pockets ?

Thus the defendant has an interest in insisting that the DA is prosecuting him for proper prosecutorial reasons and has not been swayed by her personal interests. (I confess I don't know how much, if at all, the courts care about the appearance of a conflict of interest, without the proof that it affected anything - though IIRC judges are usually supposed to recuse if they have a financial or personal interest, even when that interest is trivial. So appearance must count for something.)

I do not say that the facts will turn out to favor the defendant, merely that I would be surprised if the law is uninterested in considering whether a prosecutor has a personal interest in prosecuting a defendant.

But the law frequently surprises me.

[Mr. Bumble]

"Oh what a tangled web..."
This is turning into one hot mess. Will Willis and Wade survive as prosecutors in this very complex case? If not and it still proceeds how long will it take a new prosecutor to get up to speed?

[not guilty]

I have said since the Roman motion was filed that there is a bad smell to this matter. A lawyer who is paid by the hour to represent the State has an interest in the scope and duration of the prosecution. That is quite different from an interest in the outcome of the proceeding.

Mr. Roman doesn't appear to make any claim that, but for Mr. Wade's financial arrangement, the grand jury would not have indicted him. Neither does he make any claim that the presentation of the case against him has been affected thereby.

The motion is a shot across the bow. Let's see whether Roman's lawyer has written a check that her proof can't cash.

[Lee Moore]

A lawyer who is paid by the hour to represent the State has an interest in the scope and duration of the prosecution.

As does anyone else who dines off any crumbs that may fall from that lawyer's table. If that includes the DA who is ultimately responsible for bringing the prosecution, that creates the appearance at least of a conflict of interest.

And the defendant has an interest in not being prosecuted. If he is prosecuted on a weak case, and not convicted, he has still suffered the punishment of the process.

Thus it is not merely the outcome in which the DA and the defendant may be "interested" - the process, and the funds that it throws off are interests too.

However, as you suggest, the facts and relevant implications have yet to be established, and the relevant arguments have yet to be made in the appropriate detail. I am doing no more than doubting that we can ignore the whole thing as irrelevant, to either the defendant's proper interests, or the DA's allegedly improper ones.

[not guilty]

It is appropriate for the judge to hold an evidentiary hearing on Mr. Roman's motion. I surmise that if he has any facts showing prejudice to him from his claims, his lawyer would have included them in her motion.

[Kazinski]

Roman's lawyer says she willing to prove the allegations before the judge.

I suspect Fani Wilson doesn't want the proof presented in court. Recusing and leaving the evidence out of a courtroom in court might be the most prudent course.

Its worth noting she hasn't denied any of it.

As for the standard the judge will require, well that's largely up to him. The Judge that disqualified her from the Bert Jones investigation said her conduct in that case, which was perfectly legal, and included no charges of self enrichment, was "harmful to the integrity of the investigation".

https://www.nbcnews.com/politics/2020-election/judge-disqualifies-fulton-county-district-attorney-targeting-georgia-l-rcna39870

[John F. Carr]

The standard is clear even if the outcome is not predetermined. If she has a conflict of interest, or a personal interest as distinct from a professional interest, she is disqualified. The judge has some discretion to resolve factual disputes. In particular, if Willis testifies under oath the judge's evaluation of her credibility is for practical purposes the final word. Even if everybody on the Internet knows she is lying, he can believe her.

[not guilty]

Who is Fani Wilson, Kazinski?

Mr. Roman's motion, though lengthy and verbose, does not include any facts showing prejudice to him. While it is prudent that the judge is holding a hearing, it would have been within his discretion not to do so in the absence of allegations of prejudice to the moving defendant.

[David Nieporent]

No. The judge might decide that the allegations aren't substantiated enough to require an evidentiary hearing, but actual prejudice is simply not required. Not for the remedy of a forced recusal.

[Kazinski]

Somebody the spellchecker made up.

That's why people fear AI, if a relatively dumb spellchecker can cause such havoc then god help us when AI is fully rolled out.

[hobie]

It appears the prosecution has been calling for the speediest trial possible all along. Next ridiculous assumption please.

[Voize]

Anyone paid by the hour to be in the courtroom has an interest in the scope and duration of the prosecution.

[David Nieporent]

Mr. Roman doesn’t appear to make any claim that, but for Mr. Wade’s financial arrangement, the grand jury would not have indicted him. Neither does he make any claim that the presentation of the case against him has been affected thereby.

I don't believe any of that is necessary in order for the court to order a recusal. It's not a Strickland-type standard; no showing of prejudice is required. A showing of a conflict of interest is enough. (Remember that the remedy is not dismissal — though Roman has asked for it — but simply the disqualification of the Fulton County DA's office.)

[jb]

Seems to me there's a definite conflict of interest, but not one that prejudices the defendants. Rather, the conflict is in Ms. Willis's questionable spending of taxpayer money in a way, especially given that it may be self-enriching. That seems like a good reason for her to resign or possibly be removed from office, but doesn't seem to implicate Roman's or Trump's ability to get a fair trial.

[Michael P]

This seems not quite parallel:

Suppose two lawyers representing the same defendant were engaging in hanky panky with one another. Would that enable the prosecution to move the court to disqualify them from further participation in the defense of their client?

The purpose of defense counsel is to defend the client. The purpose of the prosecutor's office is to serve justice and the public interest. Infidelity and misappropriation of public funds speak much more to the judgment and capabilities involved in the second than in the first.

[Mr. Bumble]

As predicted, Fani plays the race card:

Fani Willis DEFENDS 'having an affair with colleague as they prosecuted Trump in election interference case' and claims attacks are 'racially motivated'

https://www.dailymail.co.uk/news/article-12963015/You-expect-black-women-perfect-save-world-Atlanta-DA-Fani-Willis-DEFENDS-having-affair-colleague-prosecuted-Trump-election-interference-case.html

[ObviouslyNotSpam]

In other words, it's just a "hoax"?

[David Nieporent]

Why are you relying on coverage by a foreign tabloid that is considered a joke in its own country? No, Willis did not "defend having an affair." That's just a flat out lie.

[Armchair]

"Suppose two lawyers representing the same defendant were engaging in hanky panky with one another. Would that enable the prosecution to move the court to disqualify them from further participation in the defense of their client?"

Well, let's make it more appropriate

"Suppose two lawyers representing the same defendant were engaging in hanky panky with one another. Lawyer one told the defendant they needed to hire Lawyer 2. Lawyer 2 was then hired at a rate far above normal rates...either in the firm or for lawyer 2's normal work. In addition, Lawyer 2 had never done specific work in the field for what the defendant was charged"

"Would that enable the prosecution to move the court to disqualify them from further participation in the defense of their client?"

Likely yes, as the lawyers appear to be engaging in fraud against their defendant.

[not guilty]

In your hypothetical, what is the State's standing to raise any issue?

[Armchair]

The lawyers are engaging in criminal fraud against their client.

[not guilty]

Where is the false statement of fact? Where is the detrimental reliance?

[Michael P]

Go back and read Armchair's original hypo. It’s spelled out quite clearly, but you’re too stuck on your shtick to remember. Your repeated playing dumb has made you dumb.

[not guilty]

Michael P, crimes are composed of pesky little things called elements. When any element is lacking, there is no crime.

[Michael P]

Stop being such an insufferable lamer. Which specific element do you think was not adequately described in the hypothetical in question?

[not guilty]

Pay attention to what I asked. Where is the false statement of fact? Where is the detrimental reliance?

[Michael P]

Pay attention to what Armchair wrote. There are at least two clear false statements of fact, a third debatable one, and the detrimental reliance is equally plain.

[not guilty]

If they are "clear" and "plain," why do you not identify them? Who made each false statement? To whom was it made? And who relied to his detriment on each false statement?

If question begging were an Olympic sport, you would likely win a medal.

[Michael P]

I don't identify them because it's not my job to point out the obvious to you, and it's funny to watch you fall back on acting like an idiot. Doing so apparently comes naturally to you.

[not guilty]

Au contraire. I have made a living proving up actual facts to factfinders.

In that context, neither ipse dixit assertions nor naked question begging feeds the bulldog.

[Armchair]

I've answered enough of your questions. Your turn.

If a lawyer engages in fraud or very deceptive billing practices against their client, are those grounds to have the lawyer removed from the case?

Why or why not?

[Mr. Bumble]

You forgot to add "show your work".

[loki13]

Yes, those are grounds ... for the client to remove their own attorney.

Grounds for opposing counsel to remove the other sides' counsel are much more limited. As a general rule, you can't just say, "Yer honor, the opposing counsel if engaging in unconscionable billing!"

As for fraud, I assume you mean defrauding the client, in which case the same analysis would apply. If, however, it becomes material to the matter (fraud on the court) that would be different. But again, the usual recourse is sanctions or bar discipline, not letting one side remove the other side's counsel.

As a general rule, courts are loathe to allow one side to dictate the other side's choice of counsel, other than the usual reason (conflict of interest).

[Armchair]

I'd love to be in the judges chambers after that particular argument.

"So, Mr. DA, you knew the client's judges were actively defrauding them"
"Yes, Judge"
"And you knew they were hiring supposed experts who had no actual expertise in the crime, and paying them double to triple the going rate"
"Yes, Judge"
"And you chose not to tell the defendant"
"Well, we wanted to win the trial"
"And now the defendant is claiming ineffective assistance of counsel, which you were well aware of..."

[loki13]

Again, you show that you're not an actual attorney.

If there are ethical violations, then an attorney should report them. Which you would (or should) know.

The reason you are able to dream up your hypotheticals that don't happen, is because they don't happen. If an expert isn't qualified, then it comes up ... when you're trying to qualify the expert (for example). What someone chooses to pay their attorneys or experts is not the business of opposing counsel.

What you seem to keep missing is that the legal system has a strong interest in not allowing opposing counsel to disqualify other counsel; absent the main two reasons (conflict of interest ... such as with current or past clients ... and if the attorney is going to testify as a fact witness in the action), courts do not want to invade the choice of a party to choose their own representation.

Because you don't practice, you're missing the forest for the trees. If disqualifying opposing counsel were something that was easy to do, then it would be a usual trial strategy. You can't do it because you think opposing counsel is "a bad person," or "having an affair", or "overbilling their client." You can't do it even if you think opposing counsel is overbilling the client to the point of defrauding the client.

Normally, if there is some other ethical lapse by opposing counsel, the proper route is either to report it to the bar or to file a motion that includes the issue (and why it is relevant to that issue) so that the court can decide what to do with it.

[Sarcastr0]

It is not hard to understand that there are different channels for attorney wrongdoing that is not material to their current legal work. This is true in other professions as well.

Last week DMN said there was a special case in Georgia. But the folks here with undirected shouting are just doing the usual vibes over reality nonsense Trump supporters do more and more.

[Rev. Arthur L. Kirkland]

.

Again, you show that you’re not an actual attorney.

I thought that guy claimed to be an attorney. I sometimes find it difficult to remember which disaffected wingnut is which, though.

[Armchair]

"If there are ethical violations, then an attorney should report them."

Look at that, we're actually getting somewhere. I just needed to lead you by the nose.

Moreover, if there is direct CRIMINAL FRAUD (and/or civil fraud) by the defense lawyers, and the prosecution knows about it, the prosecution has an ethical duty to report it to the judge and to the client.

Now, the client can of course choose to retain their counsel, even if their counsels are committing criminal fraud. In such a situation, the judge should be very wary, as the likelyhood of ineffective counsel is fairly high if the counsel is defrauding its client. And the Judge may order a separate, court appointed lawyer to the case.

Of course, the prosecution has a number of options to remove the defense counsel from the case, including presenting their criminal fraud to the bar (which may result in them being disbarred, and unable to continue as counsel) or leveling criminal charges against the defense counsel themselves. Both of which may be appropriate.

But really, this isn't about defense counsel, but about prosecutors who may be engaging in criminal fraud of their clients (the state).

[not guilty]

Armchair, please identify what crime(s) you claim that the Georgia "prosecutors ... may be engaging in" here. Please cite by statute number(s), so that those of us who care about accuracy can check your work.

[Kazinski]

"What someone chooses to pay their attorneys or experts is not the business of opposing counsel."

True, but the source of the funds can certainly be an issue, and has been an issue in many cases.

[loki13]

To reiterate, Armchair, you did not lead anyone by the nose- you simply flail around ... then you google a little, and then you pretend that you know what you're talking about.

As a general rule, most (if not all?) of the different jurisdictions have ethical rules that require officers of the court to report (certain) ethical violations- which means violations of the rules of professional conduct. Obviously, such reporting is not exactly rampant, especially for smaller violations, and most importantly, it is to the Bar - not as a weapon to be used in Court. In addition, while you keep saying CRIMINAL FRAUD that actually has ... you know, elements, and that's different than the ethical rules for attorneys.

Look, the reason I muted your predecessor account (and I'm about to mute this one) is simple; you have no wish to substantively engage or actually learn about any of these issues, but just to keep arguing whatever point you had in your heard to begin with.

For anyone who actually cares about the actual legal issues in Georgia, I found a 2018 Georgia Bar Journal article (freely available on the web) about attorney disqualification, which cites a leading Ga. Supreme Court case that you can look up. In addition, in a very brief review I found cases applying that standard from the article (always in terms of conflict of interest and/or attorneys testifying), although I did find reference to criminal courts sua sponte disqualifying defense counsel because of repeated issues related to their ineffectiveness (such as claiming a single defense was crucial, and then waiving the right to present any evidence related to that defense, after numerous other errors)- which goes to how it has to be shown to be material to the case at hand.

Anyway, I look forward to further substantive discussions with other substantive people! 🙂

[Armchair]

Loki,

You jumped into this conversation. If you feel the need to mute me, for jumping in, go ahead.

In addition, we're not talking about minor ethical violations, which may vary district to district. Just in case is wasn't clear. We're talking about ethical violations that rise to the level of criminal investigations and charges. Those don't vary district to district.

It rarely happens because it is so nuts. But...looks like it may have happened in this case.

But feel free to mute me, if you need to.

[David Nieporent]

Moreover, if there is direct CRIMINAL FRAUD (and/or civil fraud) by the defense lawyers, and the prosecution knows about it, the prosecution has an ethical duty to report it to the judge and to the client.

No, the prosecution has an ethical duty not to communicate with the client in any way.

Also, despite your stupid hypothetical and your use of capital letters, the prosecution has no possible way to know about any "CRIMINAL FRAUD" (and/or civil fraud) by the defense lawyers. Fraud requires a misrepresentation. But the prosecutor is in no position to know about any communications between the defense lawyers and their client, so he can't possibly know about any such misrepresentations.

[David Nieporent]

“And you chose not to tell the defendant”

What the fuck are you talking about? The prosecutor can't even ask the defendant what he had for breakfast, let alone discuss his views of the defendant's lawyer with him.

Also, none of the hypothetical facts you describe constitute ineffective assistance of counsel, so that's another problem with your pathetic attempts to pretend you understand the law. Overbilling the client — which is what you describe — may be cause for the client to refuse to pay his bill. It may be cause for a suit by the client against his lawyer for fraud. But it is not ineffective assistance of counsel.

[not guilty]

As always, when you claim to have answered my questions when in fact you have avoided them, you are lying.

A defendant has a Sixth Amendment right to retained counsel of his choosing, absent extraordinary circumstances. If the defendant is denied that right, that is structural error, not subject to harmless error review. United States v. Gonzalez-Lopez, 548 U.S. 140 , 148-150 (2006). A trial court is accordingly loath to grant a prosecutor's motion to disqualify defense counsel except for compelling reasons.

Fraud or billing irregularities are grounds for a client to dismiss a lawyer from further representation. A trial court will ordinarily grant leave for retained counsel to withdraw after the defendant dismisses him.

[Armchair]

Interesting. Your argument is if the lawyer is actively engaging in criminal fraud against their client, the DA has no duty to do...anything.

[not guilty]

When the prosecution is aware of facts that may threaten the integrity of an ensuing conviction, such as an actual conflict of interest on the part of defense counsel, the prosecution can put the trial court on notice so that the court can determine whether to make inquiry of the accused. Disqualification of defense counsel is an extreme measure which may likewise result in reversal of a conviction, with no review for harmless error. A trial court will accordingly hesitate before disqualifying a defendant's counsel of choice.

A billing controversy between defense counsel and the accused does not present an extraordinary circumstance which would warrant involuntary disqualification of counsel.

[Armchair]

“As always, when you claim to have answered my questions when in fact you have avoided them, you are lying.”

not guilty 2 hours ago Flag Comment Mute User In your hypothetical, what is the State’s standing to raise any issue?

Armchair 2 hours ago The lawyers are engaging in criminal fraud against their client.

Facts are clear. Questions have been directly answered. I expect an apology.

[not guilty]

You gave no responsive answers. You instead begged (thus evaded) questions.

[Armchair]

Right....

Just to review, one more time.

"In your hypothetical, what is the State’s standing to raise any issue?"
"The lawyers are engaging in criminal fraud against their client."

If that's not a direct answer to a question, I don't know what is.

If you can't admit that's a direct answer, there's no point in continuing the conversation. You'll just be deceptive and dishonest about it.

[not guilty]

Armchair, there is quite a difference between answering a question and begging the question. Like several commenters on these threads, you habitually conflate the two.

[Armchair]

I guess you're sticking with deceptive and dishonest. And misusing "begging the question"

[Drewski]

Standing doesn't apply to motions, so it's an irrelevant question.

[not guilty]

Drewski, is that as true as everything else you have said?

[David Nieporent]

One must have standing for each form of relief one seeks.

[Kazinski]

Actually the prosecution in Trump's Florida case tried not get his co-defendants lawyers removed from the case alleging a conflict. So I think its well established the state has standing to file a motion requesting the judge rule on the matter.

And you should be able to see the relevance, the prosecutor has a duty to make sure the defendant gets a fair trial because he doesn't want any grounds for appeal.

If the prosecutor sees the defense attorney hitting a flask in the restroom, or falling asleep at the counsel table does he standing to bring it to the attention of the judge?

[not guilty]

"Actually the prosecution in Trump’s Florida case tried not get his co-defendants lawyers removed from the case alleging a conflict."

Not true. The prosecution alerted the Court to a potential conflict of interest on the part of Waltine Nauta's counsel Stanley Woodward, who represented or had previously represented three individuals the Government may call to testify at the trial of his client. https://s3.documentcloud.org/documents/23894856/govuscourtsflsd648652970_1.pdf The Government requested the Court to hold a hearing to inquire into whether Mr. Nauta would waive potential conflicts and, if so, whether the Court would accept such waiver. The motion did not seek disqualification, but likely was intended to foreclose a future collateral attack on any judgment of conviction.

[Lady Dada]

I would not and could not get away with telling a client, “Hey, I really need to bring in this other attorney you need him on your case he’s expensive but it’s necessary,” then bringing on my boyfriend and billing a client for vacations.

I think the really glaring point here is the different standard for prosecutors representing the government, theoretically the people. The “client” is millions of people who had no real say in whether or not to bring the case or how to pursue it. Arguably this should require a higher ethical standard, not a lower one. If I can’t do it to my private client, why can Fanni Willis do it to Georgia?

[Rev. Arthur L. Kirkland]

Watching this wild flailing toward finding a way -- any way, regardless of foundation or likelihood -- to improve Trump's precarious legal position is entertaining.

[Voize]

Georgia may well discipline her, but why should Mike Roman get to?

[Kazinski]

Its his trial, and he isn't trying to discipline her, he is trying to get her recused.

[David Nieporent]

I would not and could not get away with telling a client, “Hey, I really need to bring in this other attorney you need him on your case he’s expensive but it’s necessary,” then bringing on my boyfriend and billing a client for vacations.

You're making up facts completely unrelated to these events. Even if the allegations about an affair are true, no 'client' was billed for vacations.

[David Nieporent]

Likely yes, as the lawyers appear to be engaging in fraud against their defendant.

Armchair is armchairing again. Why don't you stick to whatever it is you actually know something about?

[David Nieporent]

Suppose two lawyers representing the same defendant were engaging in hanky panky with one another. Would that enable the prosecution to move the court to disqualify them from further participation in the defense of their client?

No. The issue here isn't that Willis and Wade were (allegedly) having an affair, but that she (allegedly) financially benefited from hiring him. If Willis and Wade were simply good friends and she hired him and he bought her expensive stuff with some of the funds, that would be just as disqualifying as the alleged facts would be. The alleged affair simply makes the accusation more plausible.

[Kazinski]

I made one hopefully final revision to my “brief” in Trump v Anderson.

I’m a little embarrassed I missed one obvious point: there are two amendments to the Constitution that disqualify certain classes of individuals from the Presidency. The first section 3 of the 14th amendment, I contend is not self-executing because the Amendment explicitly grants Congress the authority to execute it. I added a few paragraphs to contrast that with another amendment that also disqualifies a class of individuals, and it is inarguably self executing.

“If Congress did decide to craft a self-executing amendment to exclude a class of individuals from the Presidency, what would such an amendment look like? Well it happens there is an example of a self-executing amendment to the constitution which does disqualify certain individuals from the Presidency. How do we know that the 22nd Amendment is self executing? Because Congress did not grant authority to itself or anyone else to execute it. However it most assuredly does disqualify certain persons from the presidency and the Secretaries of State of both Colorado and Maine are free to enforce it, with no enabling legislation from Congress:

“Twenty-Second Amendment

Section 1 No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this Article shall not apply to any person holding the office of President when this Article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term. Section 2 This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress.” Congress omitted adding another section “The Congress shall have power to enforce this article with appropriate legislation” to the 22nd amendment because it is self-executing and no fact finding or other Congressionally defined process is needed.

In contrast the rigorous debate over section 3, and indeed the 14th amendment as a whole tells us why Congress retained the power to enforce the 14th Amendment.”

And a link to my whole “brief”: https://docs.google.com/document/d/1Z1d-Q8dzR8tGeAXGRXLqY82dkXQIVS_0fAG_KaIW65g

[Commenter_XY]

Kaz, this is the crux of your argument, isn't it?

In short: any clause or amendment that is within the scope of the phrase “Congress shall have power” and especially “Congress shall have the power” is presumptively non-self-executing and it is Congress’s power alone to enact the means to execute or enforce the article.

If the magic phrase appears, not self executing = Congress shall have the power

Makes sense, seems logical. Is this just for fun, or are you really thinking to do something with it?

[Martinned]

If the magic phrase appears, not self executing = Congress shall have the power

That is why, famously, the US still has slavery.

Thirteenth Amendment
Section 1
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2
Congress shall have power to enforce this article by appropriate legislation.

[Brett Bellmore]

Well, we do: Ask prison laborers.

I've remarked on this before: The 13th amendment doesn't require any state legislation, because once "slavery" became a legal non-entity, officially not existing in the US, attempts to continue it anyway became a constellation of perfectly straightforward conventional crimes, such as false imprisonment.

Federal legislation was only needed to deal with local prosecutors refusing to enforce those laws.

[Martinned]

And how, exactly, did “slavery” became a legal non-entity, officially not existing in the US?

[Brett Bellmore]

Read the damned amendment: It says that slavery shall not exist in the United States or any place subject to its jurisdiction. (Except as punishment for a crime, which is why you can force convicts to labor.)

For all legal purposes, slavery ceased to be a thing in the US when that amendment was ratified. The day before? You're housing your slaves securely, and disciplining them. The day after? You're a kidnapper committing assault and battery.

[Martinned]

For all legal purposes, slavery ceased to be a thing in the US when that amendment was ratified.

That's what "self-executing" means, you absolute muppet!!!

[Kazinski]

Actually Slavery had ceased as a thing before the 13th amendment.

But to make sure Congress passed the civil rights act of 1866 to enforce the 13th amendment:
"full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and ... like punishment, pains, and penalties..." Persons who denied these rights on account of race or previous enslavement were guilty of a misdemeanor and upon conviction faced a fine not exceeding $1,000, or imprisonment not exceeding one year, or both."

So Congress did use its authority to enforce the 13th amendment, as did military authorities under martial law enforcing the Emancipation Proclamation issued in 1863, 3 years before the 13th Amendment was ratified.

[Stella Link the dog]

"Actually Slavery had ceased as a thing before the 13th amendment."

This is false. The last legally owned slaves were in Delaware and were not freed until the 13th amendment became operative. All other slave states not in the insurrectionist states had abolished slavery in one way or another by then, as I understand it.

[bernard11]

And it enjoyed a resurrection, thinly disguised, after Reconstruction.

[Brett Bellmore]

Yes, and that's what I mean by saying that it makes sense that the 13th amendment is, to some extent, self-executing.

But not entirely, because without the enabling legislation clause you get no federal involvement in enforcing it.

[Sarcastr0]

Ah yes, the 'it makes sense' doctrine of Constitutional interpretation.

[Bwaaah]

"It makes sense" is not a "doctrine." It's just a common attribute of useful reasoning, legal or otherwise. (Even counter-intuitive legalistic reasoning has a strong tendency to make sense when considered within its full context.)

It's just like you, always having to come up with an other side to the other side, to negate the importance of an argument making sense. This assertion is consistent with the quality of your arguments.

But you are correct. Making sense is not a doctrine.

[Sarcastr0]

‘It makes sense’ isn’t responsive to the issue – Brett wants the same language in 13A and 14A to be treated differently. Why ‘It makes sense.’

I don’t hink so.

And then you go after me, but without pointing to anything. If I’m making ipse dixit arguments, call me out *when I make the argument* or refer to the specific post. Just hand-waving about what I always do is unimpressive.

[Brett Bellmore]

Trivially, it's not the same language, or else we'd have two 13th amendments.

The 13th amendment declared slavery non-existent within the US, which by itself had automatic legal implications, which is the meaning of saying that it was self-executing.

The 14th amendment operated differently, in that it made disqualification contingent upon something that, not at all incidentally, was a crime. Upon guilt.

Disqualification on the basis of being 30, or born in France, is a fairly objective matter, and it's not a matter of a crime, or guilt. But guilt of a crime is something that has to be established before it can be acted on, and we know how you establish that somebody is guilty of a crime: You try and convict them.

[Jason Cavanaugh]

"The 14th amendment operated differently, in that it made disqualification contingent upon something that, not at all incidentally, was a crime. Upon guilt."

Isn't it odd then, for the 800th fucking time, that it doesn't say "CONVICTED OF?"

[Kazinski]

Well it actually became a legal non entity non-existent under martial law which controlled the former slave states dur hi mg that time period. The Emancipation Proclamation was also in force.

Martial law was so effective that there were over 600 Black state legislators elected during the few years after he civil war. Who revised state codes that violated the constitution.

That’s not to say all the legal niceties were observed, or due process. Someone defying the 13th amendment would likely not be served with a writ, specifying the law and notice to appear and etc. They’d get a visit from a squad of cavalry ready to inflict summary justice, under martial law.

[Martinned]

Well it actually became a legal non entity non-existent under martial law which controlled the former slave states dur hi mg that time period. The Emancipation Proclamation was also in force.

Except in Maryland, of course.

[Brett Bellmore]

Actually, it didn't apply to Confederate territory the North had already captured at that time, either. It applied in:

"Arkansas, Texas, Louisiana, (except the Parishes of St. Bernard, Plaquemines, Jefferson, St. John, St. Charles, St. James Ascension, Assumption, Terrebonne, Lafourche, St. Mary, St. Martin, and Orleans, including the City of New Orleans) Mississippi, Alabama, Florida, Georgia, South Carolina, North Carolina, and Virginia, (except the forty-eight counties designated as West Virginia, and also the counties of Berkley, Accomac, Northampton, Elizabeth City, York, Princess Ann, and Norfolk, including the cities of Norfolk and Portsmouth[)], and which excepted parts, are for the present, left precisely as if this proclamation were not issued."

[bernard11]

Actually, there were areas controlled by the Union forces that were included in the Proclamation.

[Stella Link the dog]

"Except in Maryland, of course."

Kentucky and Delaware and maybe parts of Missouri as well.

[Kazinski]

Excellent point about Maryland Martinned.

Slavery was not abolished in Maryland by either the Emancipation Proclamation, or the 13th Amendment.

Slavery was abolished in Maryland in 1864, 2 years before the 13th Amendment, by a State Constitutional convention.

[Magister]

Well, we do [still have slavery]: Ask prison laborers.

That would seem to fall under the "except as a punishment for crime whereof the party shall have been duly convicted" part. The military draft would be a better argument, but the Supreme Court said nope over a hundred years ago.

[Mr. Bumble]

Seems it was self-enforcing after the war.

[Stephen Lathrop]

The life of the law has not been logic: it has been experience.
– Oliver Wendell Holmes, Jr.

Remarkable how opposite has been the present tendency of American jurisprudence with regard to race and racial policies. Except that today’s policy has not really even been reason, it has been rationalism. Reason can at least accept experience, and make use of it. It is only rationalism which endeavors to exclude experience entirely, as an illegitimate intrusion, or even as a contaminant which sullies legal purity.

[Kazinski]

A large part of the problem is that many people, including some judges, believe a law (1964 civil rights act), that explicitly bans “discrimination or segregation on the ground of race, color, religion, or national origin”, requires discrimination and segregation to enforce.

Now you would probably hold that some discrimination is necessary to alleviate past discrimination, I would disagree because nowhere it’s been tried has it worked.

But in any case it’s irrelevant, because as Holmes might tell you, experience may be an aid in applying the law, or to Congress in revising it, but you don’t need 3 generations of idiots to tell you that doing the exact opposite of what the law states is enforcing it.

[Commenter_XY]

Nice allusion to Buck v Bell. 🙂

[Kazinski]

Thanks. One of my favorite supreme courtisms.

[NOVA Lawyer]

Fitting given it is one of the most odious Supreme Court cases, both in substance and in derisive tone towards the powerless. Why am I not surprised Kazinski would love it?

[Stephen Lathrop]

A large part of the problem is that many people, including some judges, believe a law (1964 civil rights act), that explicitly bans “discrimination or segregation on the ground of race, color, religion, or national origin”, requires discrimination and segregation to enforce.

Does anyone advocate in court that segregation has to be enforced to vindicate civil rights? Anyone who isn’t a crank, I mean.

Otherwise, unless you suppose the law bans its own enforcement, how do you think any case can be judged without a court willing to take cognizance of race or ethnicity, and apply discrimination based on race or ethnicity to the evidence before the court? That of course happened in the Harvard admissions case.

When I suggested that doing that undermined the asserted principle behind the decision, right-wingers commenting here resisted. They insisted that evidence (actually, but never admittedly) reliant on a specific ethnic discrimination proved that Asian students were discriminated against. That happened despite the fact that members of that ethnic group were statistically over-represented among admits—a fact which commenters here called me a racist for mentioning, and then paradoxically called irrelevant to facilitate return to purely rationalistic arguments.

So what happened was, racial and ethnic discrimination was fine in court, if it would deliver an outcome right wingers wanted. It got ruled out as illegitimate if it would deliver an outcome right wingers did not want. And both principles applied to the same decision—which required a notable detour away from forthright presentation to deliver.

Meanwhile, in actuality the Harvard case was about something else entirely. It was about figuring out some way to enforce in court a legally undefined and legally unrecognized standard of meritocracy—without admitting in writing that the decision accomplished that, just as it was meant to do.

That kind of mess is where rationalism takes you. To rely instead on experience delivers less paradoxical legal decisions. It requires rationalism taken to extremes to insist that (actual) anti-racism is (rationally) the real racism—and thus to support and encourage continuation of age-old racist practices—all on a principle to enforce rational purity as law.

[Ed Grinberg]

.

A large part of the problem is that many people, including some judges, believe a law (1964 civil rights act), that explicitly bans “discrimination...on the ground of race, color, religion, or national origin”, requires discrimination

Like this guy (re: sex discrimination):
https://reason.com/volokh/2021/04/26/women-only-workout-areas-in-exercise-facilities/?comments=true#comment-8874242

[Noscitur a sociis]

For someone who fetishizes historiography, you seem quite bad at reading historical texts. Holmes wasn’t arguing that we should avoid logic in developing legal rules: he was observing that the common law rules that existed in the late 19th century weren’t exclusively the product of such logic:

The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become. We must alternately consult history and existing theories of legislation. But the most difficult labor will be to understand the combination of the two into new products at every stage. The substance of the law at any given time pretty nearly corresponds, so far as it goes, with what is then understood to be convenient; but its form and machinery, and the degree to which it is able to work out desired results, depend very much upon its past.

In Massachusetts today, while, on the one hand, there are a great many rules which are quite sufficiently accounted for by their manifest good sense, on the other, there are some which can only be understood by reference to the infancy of procedure among the German tribes, or to the social condition of Rome under the Decemvirs.

[Stephen Lathrop]

Noscitur, is it possible you didn't understand my first sentence, right under the Holmes quote you seem to think I was arguing against? Here it is again,

"Remarkable how opposite has been the present tendency of American jurisprudence with regard to race and racial policies."

That was me pointing to Holmes as a worthy exemplar, in contrast to this, from the end of my comment:

"It is only rationalism which endeavors to exclude experience entirely, as an illegitimate intrusion, or even as a contaminant which sullies legal purity."

Do you suppose that final quote offers even a hint of an opinion which Holmes ever contradicted? I think your longer quote from Holmes was appropriately chosen as a general expression of his views.

Perhaps your difficulty with my comment is that you do not understand that I say reason and rationalism are more like antitheses than like cognates. In that I am confident I follow in a path Holmes himself also trod. Holmes was in fact arguing that we should avoid pure logic. What else can you make of this, another Holmes proposition I endorse wholeheartedly:

The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.

If I had thought to say it that way, I would perhaps have expressed my own point better.

[Noscitur a sociis]

No, the problem is that (possibly because of your ignorance of legal theory and jurisprudence), you misunderstand the purpose of Holmes’s work and thus the context of these statements. The Common Law isn’t an argument about how law should work: it’s an explanation of how (Holmes believes) the law did work.

[Stephen Lathrop]

Noscitur, you can rely on me to understand at least that much about Holmes, Jr. Are you aware of his own history as an associate of the founders of the philosophical school of American pragmatism?

At this point I think it has become appropriate to ask you, when I distinguish between reason and rationalism, what implications do you think I mean to point to?

[Kazinski]

The Iowa Caucuses are Monday and they are expected to be held in sub-zero but relatively clear weather.

Should they be postponed for a week?

[Mr. Bumble]

Why? What if the weather was worse in a week. No "snow days" for elections.

[Kazinski]

They do have 10 day forecasts which while not dead on, are not a complete roll of the dice.

Tomorrow at 7pm in Ames IA, the forecast is -7f but just 5% chance of snow. For the following Monday the forecast is 34, and the low is 31, with a 24% chance of precipitation.

Tomorrow night is life threatening weather to be out in, especially for senior citizens, next Monday relatively benign.

[Brett Bellmore]

Let's not exaggerate too much. Back in the 70's I routinely walked into campus from my apartment in the neighboring town in much worse weather than Iowa is slated to have tonight. They're only looking at -12F without precipitation, after all.

No doubt this sounds horrifically cold to people living in the warmer states. To people who live in the more Northernly states, it just means that you wear warmer clothing.

What's going on here, frankly, is that there's a faction of professional election experts, basically all Democrats, (You're not considered a real election expert if you're a conservative Republican.) who have seized upon changing voting systems as a way to stop the Republican party from nominating candidates Democrats dislike. They're attempting to use the fact that it's cold in the winter in Iowa as an excuse to abolish the caucus system there.

[Lee Moore]

Wildly off topic, but I was reading a piece recently about the campaign on the Eastern Front during the winter of 1941-42, when the Germans found themselves in the middle of a Russian winter for which they had not prepared (having expected to have won long before winter set in.)

It seems that the Fuhrer was unimpressed by complaints about the cold in Russia, recalling his own WW1 experiences in cold conditions, and claiming that he'd been happy to walk around in short pants even on the coldest winter days.

That Moscow and its environs were 20 or 30 degrees colder apparently escaped him.

[Dr. Ed 2]

I think it was more than that -- Western Europe benefits from the Gulf Stream -- memory is that Montreal, London, and Moscow are all about the same latitude -- London being warmer because of the Gulf Stream.

I don't remember anything about the trenches filling with snow.

[Noscitur a sociis]

It is generally true that the eastern coasts of both oceans are much warmer than the west coast, and that accordingly cities in Western Europe are much further north than American cities with similar climates (or, depending on your perspective, American cities are much further south), Montreal is about six degrees south of London, which is more than four degrees south of Moscow.

[Kazinski]

Perhaps. But I'm no going to go out in weather like that, which is why I winter in Arizona.

[Brett Bellmore]

To be honest, now that I'm in my 60's, I'm not so fond of cold weather, either. Makes my fingers hurt, for one thing.

[Mr. Bumble]

Raynaud's disease.
https://www.mayoclinic.org/diseases-conditions/raynauds-disease/symptoms-causes/syc-20363571

[Brett Bellmore]

Nah, chemo. Back in '10 I underwent it on an emergency basis for lymphoma, no time to install a port. I lost every single vein they put an IV in, I have terrible circulation in my hands.

[Bwaaah]

Congratulations on being alive!

[Brett Bellmore]

Thanks! Enjoying the bonus years.

[Bwaaah]

Glad that they are. Mine too. (It's been another relatively lucky today, I'd say.)

[Commenter_XY]

Immerse your hands in icy water for 5-10 minutes, 3X daily. You will improve the circulation. You can open and close the hands while they are immersed under the water. This will work, over time.

[M L]

Better yet immerse your whole body! The cold plunge.

[Brett Bellmore]

I pride myself on being somewhat stoic, but considering how much pain I'd be in after the first 30 seconds, I'd need some pretty good proof that would help.

[kb]

80 proof? A good Scotch then.

[Commenter_XY]

Brett, look up hormetic stress. Then go on over to Wim Hof and his website. Yeah, that Iceman guy. No joke, it helps by improving the physiology. It sucks at first, so you do 30 seconds or whatever you can tolerate, and work your way up.

I have the same problem with hands (different cause). I just don't wear gloves for the last mile or two in my daily walk (today was a positively balmy 22F). Sucked, but I notice that I warm up a lot quicker.

It is not a miracle. But it is non-pharmacological, human tested, and doesn't cost much money.

Help yourself more by learning his breathing exercises.

[Mr. Bumble]

A couple of things:
Longer range weather reporting is sketchy at best. Just a few days ago the forecast for Des Moines was -15 (with -40 wind chill) with snow. Yes extremely low temperatures can be life threatening but your example while showing warmer temps also shows an increased chance for snow which makes for dangerous driving.
Also, these are not like regular elections with people lining up to vote. These are indoor events so the biggest problem is getting there. As long as they're not driving an EV they should be fine.

[Martinned]

It doesn't matter, because Trump called on his supporters to go join the caucuses even if it kills them. In light of such a spirit of self-sacrifice, I can see no reason to postpone anything.

[Brett Bellmore]

That's why some people have proposed delaying them: It's thought that Trump's supporters are more motivated than supporters of other candidates, and that delaying the caucus until the weather is more pleasant might lower his margin of victory.

[Commenter_XY]

Iowans can figure this one out. I never understood that caucus shit anyway. Yes, I suppose the caucus is a throwback to the past, when politics was much more 'retail'. Still, the caucus seems an oddity.

It is not like Marianne is going to beat POTUS Biden. Is Team D even doing a caucus? 🙂

[Rev. Arthur L. Kirkland]

.

Iowans can figure this out.

No, they can't.

Iowa is among our nation's whitest, least educated (39 in undergraduate degrees, 45th in advanced degrees), most rural, most backward states. It does not resemble modern, mainstream America. It is old-timey, can't-keep-up, disaffected America.

Caucus procedures favor people with resources and free time at particular points (disfavored people range from shut-ins or people without cars to people whose work hours are prescribed by employers). Recent winners of the Iowa Republican caucuses have included Presidents Huckabee, Cruz, and Santorum; since inception, the Republican caucus favorite has been the Republican nominee less than half the time. Evangelicals seem to be especially influential in the Iowa caucuses; that seems a sound method for selecting a candidate who would have been strong in the 1950s but is a loser in today's America.

[Dr. Ed 2]

It's actually not that cold because the air is drier. 0 to -10 feels warmer than 30 to 40 because of the dampness -- you just need a heavier coat.

[Moderation4ever]

Question is should they eliminate the caucuses? If you look back on the history of the caucus you will see that this is not usual weather. Iowa's value is limited to the candidates and the US in general. It is probably most useful to the news media as a story. For me the most interesting stories from Iowa are not the winner, but the candidates who crashed and burned here. The Howard Dean as an example and this year maybe Ron DeSantis.

[Brett Bellmore]

The current fuss about Iowa, I gather, is that Trump has gone nuclear on Ramaswamy, because it looks like Vivek might pull enough votes to deny Trump 50%, and Trump wanted to really crush Iowa.

[Moderation4ever]

There is no room for the disloyal. Devotion to the leader is paramount, even thinking you could replace the nominee is a thought crime.

[Brett Bellmore]

Yeah, while I liked some of the things Trump did as President, and even more of the things he refrained from doing, I don't think he has improved over the last few years, quite the opposite.

I'd be utterly delighted to see him beat by DeSantis, or even Ramaswamy at this point, though if he secures the nomination I'll probably vote for him, unless the Democrats come up with a very unlikely replacement for Biden.

[Moderation4ever]

I have a hard time understanding why you would vote for Trump over Biden. I could understand abstaining or voting third party. Trump was incompetent and most of his term was marked by chaos. It is easy to say you like something or that other things were not done, but I don't see how that can be credited to some plan or philosophy. What good that did happen seemed primarily due to others. And those others are now deemed disloyal. That the chaos of the first four years yield something you liked does not in any way mean that will happen again in a second Trump term.

[Commenter_XY]

I have a hard time understanding why you would vote for Biden over Trump. I could understand abstaining or voting third party. Biden was incompetent and most of his term was marked by chaos. It is easy to say you like something or that other things were not done, but I don’t see how that can be credited to some plan or philosophy. What good that did happen seemed primarily due to others. And those others are now deemed disloyal. That the chaos of the first four years yield something you liked does not in any way mean that will happen again in a second Biden term.

🙂

[Jason Cavanaugh]

So you're a cultist, entirely captivated by the fact you think you're a Republican and that's all that matters to you.

[SimonP]

If the 2020 election has taught me anything, it is that conservatives are opposed to late-in-the-game adjustments to electoral processes designed to facilitate greater and safer voter participation.

Not sure why a chilly day merits an extraordinary delay probably not provided for by any law or process, when a global pandemic didn't, but who am I kidding - this is about helping Trump. So of course it's justified!

[Brett Bellmore]

"If the 2020 election has taught me anything, it is that conservatives are opposed to late-in-the-game adjustments to electoral processes designed to facilitate greater and safer voter participation."

Actually, we don't give a damn what the excuse for the late in the game changes are.

"but who am I kidding – this is about helping Trump."

All the proposals for delay I've heard have been coming from people hostile to Trump.

[SimonP]

The fix is in!

[Brett Bellmore]

Actually, no, because the proposals to delay it are going nowhere.

[Jerry B.]

I expect that Iowans know how to handle such cold weather. The ringers bussed in from warmer climes, however...

[Frank Drackman]

Postpone it until the Global Warming gets here, like in 2 or 3 thousand years.

[Ed Grinberg]

Funny.

[Bwaaah]

Maybe the governor could impose some last minute emergency order that alters the rules of the game, on account of weather?

I'm surprised that this is entertained as a serious question.

[Commenter_XY]

I have a question about the penalty phase of the NY state fraud case against POTUS Trump.

Has NY ever done a forced liquidation of billions of dollars of commercial property before? It is not as if NY state will list the buildings and businesses for sale on eBay. How does that actually work?

[Brett Bellmore]

Probably the simplest way would be to contact Trump's competitors, and offer the whole kit and kaboodle, unbroken up, to the first one who agrees to pony up the fine.

It would minimize administrative expenses, be quick, and properly effectuate the court's intent: Rendering Trump destitute.

[Martinned]

properly effectuate the court’s intent: Rendering Trump destitute.

Tell me you're not interested in a serious conversation without telling me you're not interested in a serious conversation.

[Mr. Bumble]

...and what do you think the intent was? Justice?

[Martinned]

Just because you're not interested in preserving the rule of law, doesn't mean other people aren't.

[Mr. Bumble]

What rule of law is involved? What was the intent of the prosecution? What consumer was "defrauded"?

[Michael P]

The rule is that Trump delenda est.

[Krychek_2]

Well, the bank would have been entitled to charge higher interest rates had they known the true value of the property, so there's that. But suppose no one actually lost any money on it. It's still good policy to go after people who lie on their financial statements to deter other people from lying on their financial statements. I suspect if Trump weren't the defendant you'd have no problem understanding this.

I hear repeated complaints from Trump supporters that he is the victim of selective prosecutions just because he's Trump. Respectfully, the shoe were on the other foot. If Joe Schmoe, an unknown businessman, had submitted those exact same fraudulent financial statements, I doubt even the more avid Trump supporter would have any trouble seeing why he was being prosecuted. The selective prosecution rule being applied by Trump supporters is that he's never guilty of anything.

[Michael P]

Your position is incredibly hard to reconcile with the fact that the bankers in question testified that the difference between what Trump claimed and what the bank decided was right for them to use was "not unusual or atypical". How many of those other clients are prosecuted for fraud on the same theory? It does, in fact, look like very selective enforcement.

[Brett Bellmore]

On the contrary, if Joe Schmoe submitted the same financial statements, and years after having paid off the loans at question in full with no complaints from the bank, got hit with these charges, it would be a big freaking deal.

And then if the judge had summarily declared Joe guilty and that there wasn't any need for a trial before starting the fire sale, that would be a bigger freaking deal.

[Krychek_2]

I am familiar with a case in which lawyer commingled client funds with his own funds, spent some client funds on his own personal stuff, and then paid it back before the client or anyone else realized the funds were missing. The bar found out about it while doing a routine random audit of his trust account five years later. He was disbarred. And while I think that was a harsh result, it's not unreasonable to say that financial integrity is important enough to prosecute people who go afoul of it, even when no one gets hurt.

Should drunk drivers not be prosecuted just because they don't actually cause an accident?

And here's the thing with Trump. He's been a crook all his life. He apparently simply did not appreciate that when you run for president, your opponents go over your life with a fine-tooth comb. It 's not like Democrats are making stuff up; they don't have to. If he didn't want his crooked business dealings exposed he shouldn't have run.

[Brett Bellmore]

But you're ignoring what Michael P pointed out: The banks had no complaints. They say it's routine that applicants for loans place higher valuations on their property than the bank does, the bank doesn't rely on the applicants' values, they do their own evaluation.

That's the thing here: Nobody was defrauded.

[Krychek_2]

If a drunk driver hasn't had an accident yet, nobody was hurt. Drunk driving is still a crime, and if he gets prosecuted for it, no harm no foul will not be an excuse.

Lawyers have lost their licenses for appropriating client funds that were then paid back before anyone knew they were missing.

There are sound policy reasons to prosecute people who submit false financial statements, even if no one gets hurt. When our entire financial system depends on voluntary compliance and honesty as much as ours does, there have to be penalties for non-compliance.

[loki13]

"Lawyers have lost their licenses for appropriating client funds that were then paid back before anyone knew they were missing."

Bingo. I sometimes think Professional Responsibility could be boiled down to the following lesson:
Rule 1: Never mess with trust accounts.
Rules 2: See Rule 1.

I like to read disciplinary actions for fun sometimes. And you'll always see something like the following-

Attorney coerced sex from client. Suspension for 30 days.
Attorney brought drugs into a secure jail facility. Suspension and diversion into treatment program.
Attorney looked at trust accounts cross-eyed. THAT'S A DISBARMENT!

[Sarcastr0]

The banks had no complaints

That doesn't fucking matter! The harm is obvious from the facts alleged.
Banks not wanting to piss off Trump despite being wronged is pretty obvious here.

There are a number of reasons criminal law doesn't require a complaining witness. Don't pretend it does.

Just like 14As3, Brett and other Trump supporters are constructing legal-moral edifices in real time based entirely on needing Trump to be blameless.

Knowledge of the law, or precedent need not apply.

[Michael P]

Let's explore that DUI analogy a bit more. We can point to lots of DUI prosecutions, so we have a good sense of how that law is usually applied. But Donald Trump does not drink alcohol, and AFAIK has not been accused of using other intoxicants, so what would be the underlying facts that lead to charges against him? If they're fundamentally different from previous cases, wouldn't that support the idea that the application of the law is in fact novel?

[Sarcastr0]

Wow, Michael, do you know how an analogy works?

Trump not drinking alcohol has nothing to do with the analogy being made!

[Brett Bellmore]

"That doesn’t fucking matter! The harm is obvious from the facts alleged."

So obvious, according to the judge, that he didn't think a trial was needed before proceeding to the penalty phase. He did get overruled on that, thankfully.

Look, stop being stupid about this: There was no "harm", the banks issued the loans on the basis of their own evaluation of the properties' worth, not Trump's. And they say that it's not unusual, and no big deal, if the customer's valuation differs from what the bank thinks the property is worth.

Trump’s Bankers Say His Exaggerated Net Worth Did Not Affect Loans

Deutsche Bank Executive Testifies Loan to Trump Wasn't Unusual

[Sarcastr0]

There was no “harm”, the banks issued the loans on the basis of their own evaluation of the properties’ worth, not Trump’s.

The facts alleged in the trial say otherwise.

You linked to a couple of paywalled sites, but this seems to explode your interpretation here:
Trump’s “statements of financial condition” were key to his approval for a $125 million loan in 2011 for his golf resort in Doral, Florida, and a $107 million loan in 2012 for his Chicago hotel and condo skyscraper, former Deutsche Bank risk management officer Nicholas Haigh testified.

“I think the phrase we used might have been ‘sanity checks’ on the numbers,” he said.

Those numbers helped Trump secure bigger loans and lower interest rates, said Haigh, who headed the risk group for the bank’s private wealth management unit from 2008 to 2018.

[Sarcastr0]

https://apnews.com/article/donald-trump-letitia-james-fraud-new-york-364d1052f98816121000c26dc66f3878

[Davy C]

@Krychek_2:

If a drunk driver hasn’t had an accident yet, nobody was hurt. Drunk driving is still a crime, and if he gets prosecuted for it, no harm no foul will not be an excuse.

True, but it greatly affects the penalty. 25 years in prison would be excessive for the drunk driver who didn't get into an accident. And hundreds of millions of dollars for what Trump did is excessive.

[Sarcastr0]

years after having paid off the loans at question in full with no complaints from the bank

Brett, there are millions of dollars of fraud here. Because the amount that was paid to the bank included a spuriously low interest rate based on Trump's lies. That is fraud. It's big fraud.

I don't know the counterfactual of if this weren't Trump. Maybe someone less high profile would have skated by. But I do know that Trump supporters assume a double standard off the break every single time with zero support. Just like here.

[Stephen Lathrop]

It surprises me that risk to the banking system has not got more consideration. If fraudulent disclosures about collateral are okay, then banking reliability is less than supposed.

[Joe_dallas]

Sarcastro - As explained yesterday, its highly unlikely the personal financial statements using trumps valuation of the assets were relied on by the bank. Haigh's testimony is not credible. He would have to had override every risk safeguard that underwriting has in place to approve those loans.

Banks have loan covenants in place , that require compliance. repetitive violations of those loan covenants are going to prevent loans from being renewed, or making new loans .

the banks evaluated the risks of the loans and the returns and made the business decision to make loans to the trump entities because they felt they could make a higher return on those loans than making loans to other borrowers.

[Krychek_2]

I suspect we have a dearth of counter factuals in part because when the money is paid back it rarely comes to the attention of the authorities because who is going to report it. If there were lots of cases in which the money had been paid back and it did come to the attention of the authorities, we don't know if those other cases would have been prosecuted or not. So the claim that he's only being prosecuted because he's Trump is speculation upon speculation.

[Joe_dallas]

Latrop makes a good point (inadvertantly ).

The fed bank examiners regularly review banks for compliance. Loans are selected based on various criteria (some random selection, other criteria based on size, etc). Given the size of the trump loans, its very likely at least one of his loans would have been selected by the fed examiners for compliance. Its highly unlikely the Fed examiners would have treated the trump loans as meeting the required underwriting compliance if the loans were made based on the personal financial statement ( aka statement of financial condition). There is no record that the feds flagged the trump loans which is another indication that the banks did not rely on the SFC's

[Sarcastr0]

Joe, you of all people can't just state shit and think that counts as evidence.
You've regularly been shown to be an overly confident moron quite willing to lie and call others ignorant when they call you on it.

I don't trust you.
Bring sources for what you say, preferably specific to the case under discussion, and we can talk.

[Brett Bellmore]

"If fraudulent disclosures about collateral are okay, then banking reliability is less than supposed."

You seem to have a hard time understanding how this works.

The banks don't use the borrower's valuation as a basis for extending the loan, they do their own valuation. The borrower's valuation just gets you in the door, so to speak, it's a basis for determining if it's even worth talking to you.

So, if the loan goes forward, on the basis of the banks' own valuation, there has been no fraud.

[Brett Bellmore]

" There is no record that the feds flagged the trump loans which is another indication that the banks did not rely on the SFC’s"

They stated on the record that they hadn't.

[Joe_dallas]

Brett Bellmore 28 mins ago
Flag Comment Mute User
” There is no record that the feds flagged the trump loans which is another indication that the banks did not rely on the SFC’s”

They stated on the record that they hadn’t.

Brett - Thanks - I am presuming from your comment that the fed examiners did not flag the trump loans. If so, that would undercut to prosecution claim that the banks relied on the fraudulent financial statements.

[Joe_dallas]

Sarcastr0 33 mins ago
Flag Comment Mute User

Quit getting pissed off that you are so ill informed about how the world works.

[Krychek_2]

"The banks don’t use the borrower’s valuation as a basis for extending the loan, they do their own valuation. The borrower’s valuation just gets you in the door, so to speak, it’s a basis for determining if it’s even worth talking to you."

Yes and no. I've represented enough banks (and insurance companies) over the years to know that sometimes they do their due diligence, sometimes they don't. They're also run by idiots but that's another post for another thread.

I would not find it hard to believe that given that it was Trump, nobody at the bank took that close a look at it. Certainly not as closely as they would have looked at it if I'd shown up wanting to borrow millions of dollars.

[Sarcastr0]

I'm asking for sources, Joe.

All you have is insults and a history of issues with the truth.

[Brett Bellmore]

"Brett – Thanks – I am presuming from your comment that the fed examiners did not flag the trump loans. "

No, I mean the bank stated that they didn't rely on his representations about the properties. I assume, though, that if the fed examiners had flagged the Trump loans, that's something the prosecution would be bringing up.

"Yes and no. I’ve represented enough banks (and insurance companies) over the years to know that sometimes they do their due diligence, sometimes they don’t. "

Well, sure. When I took out my previous mortgage, they had the house assessed. When I refinanced a few years ago to get a lower interest rate, they maybe had somebody drive by to make sure the house hadn't just burned down.

That's because house prices had doubled locally, so that's about the only way the refi wouldn't have been a good risk.

So, yeah, if your collateral is huge compared to the size of the loan, they relax a bit.

[Bob from Ohio]

"here are a number of reasons criminal law doesn’t require a complaining witness. Don’t pretend it does."

Its a civil case.

Fraud requires reasonable reliance. No lender lends any significant sum without a third party appraisal. No lender cares about a developers opinion on value.

James campaigned to get Trump, Mr. Norms. You'd think a norm loving guy would think that bad but not if you hate the target enough.

[David Nieporent]

got hit with these charges,

There were no charges here.

And then if the judge had summarily declared Joe guilty and that there wasn’t any need for a trial before starting the fire sale, that would be a bigger freaking deal.

Once again, we have people who know less than people whose ideas come from re-runs of Law & Order commenting on law. Nobody declared Trump "guilty" of anything. Guilt is a criminal thing. This is a civil case. The Court granted summary judgment on one of the counts of the complaint, which is a routine procedure not fucking remotely the same thing as "summarily" doing anything. By definition summary judgment means there isn't a need for a trial because there are no material facts in dispute to be resolved at trial.

[Joe_dallas]

Bumble - My understanding is the NY statute is a little unusual in that it doesnt require much if any proof of reliance on the fraud and doesnt require a victim nor require a victim to incur damages. So while yesterday's post from Steve Calerbsi (spelling error) was somewhat hyperbole, the due process and excess fine constitutional issues have merit.

[Sarcastr0]

Sources Joe, bring some sources.

[Mr. Bumble]

How do you keep from tripping over your clown shoes?

[Joe_dallas]

Bumble - he is just lashing out because he is pissed off about how little he understands - common everyday stuff that a leftist doesnt understand.

See Basel Committee on Banking Supervision (BCBS), Principles for sound operational risk management, http://www.bis.org/publ/bcbs195.pdf, and The internal audit ...

[Sarcastr0]

Your source doesn't even mention NY law, Joe.

My understanding is the NY statute is a little unusual in that it doesn't require much if any proof of reliance on the fraud and doesn't require a victim nor require a victim to incur damages

Do better.

[Brett Bellmore]

I think you're the one not being serious: Cashing out a business empire on a short schedule, with said cashing out being done by third parties with no stake in maximizing the receipts? You get a fraction of the value of the assets. Trump has, what, a couple billion in NY assets? That being the value if you sold them in no hurry trying to maximize the price... The judge has just, on getting a better notion of Trump's NY assets, inflated the fine to $370M.

The fine is sized to consume all of what that forced sale will yield, leaving Trump with nothing.

We've seen this before on a much smaller scale, reported in these very pages: Somebody gets behind on their property tax, or is hit with a fine for a building code violation of some sort, and the local government sells their house in auction for just enough to cover the fine.

This is just that on a larger scale.

[bernard11]

We’ve seen this before on a much smaller scale, reported in these very pages: Somebody gets behind on their property tax, or is hit with a fine for a building code violation of some sort, and the local government sells their house in auction for just enough to cover the fine.

How exactly does the local government control the auction to keep the bids from getting higher than that? I mean, it's an auction, right?

And why does the local government care if the house goes for more than the tax plus whatever penalty there is?

HTF does any of what you are claiming make sense?

The auctions don't bring good bids not because of some deep plot, but because they aren't much publicized, and there aren't that many people who want to buy a house at auction, and who can arrange the financing.

Do you think an auction of a Trump property would go unnoticed?

[David Nieporent]

The judge has just, on getting a better notion of Trump’s NY assets, inflated the fine to $370M.

Yet another thing that did not happen. $370 million is what the state is asking for; the judge hasn't done anything in that regard.

[Krayt]

Sorry, no. The purpose of this right now was to expropriate a political opponent’s estate to hinder them.

Your comment shows you are not serious about anything except getting an opponent. You want people to think of initiative #47 to git ‘im as what, the unpteenth disinterested application of rule of law against someone who, purely coincidentally, you assure the nation, is a political opponent?

What a joke. You even rush through stuff to maximize the hampering and, in cases of “hey, impeachment is political“, joyously admit you get the honor of turning the investigative power of the government against an opponent qua opponent.

Some of us choose not to join you in Facetiousland.

And no, Trump needs to lose. We don’t need him waving a checkered flag for Putin’s tanks somewhere west of Poland.

But the nation also does not deserve this embarrassment of government abuse of a political opponent. A good deal of constitutional design, including some amendments, are exactly for this purpose.

There is nothing noble in what you do.

Yes, both sides can be ignoble shits.

[Ed Grinberg]

"Some of us choose not to join you in Facetiousland."
"government abuse of a political opponent."

More like Fascistland...

[Bob from Ohio]

"expropriate a political opponent’s estate to hinder them"

Take his freedom and money in tandem, all in rigged courts.

[Krychek_2]

Right, because whenever Trump gets a bad result it must be because it was a rigged court. Couldn't possibly be because Trump is an actual crook who got caught.

[Bob from Ohio]

No crimes were committed in the DC, NYC and Atlanta cases. All involve extreme distortions of law that no one else has ever been tried for.

The rigging is the DC, NYC and Atlanta locations.

[Krychek_2]

Like hell.

[jb]

I mean yes, no President has sought to get a bunch of state officials to fraudulently overturn election results when he lost, or told their supporters to go prevent Congress from counting the electoral votes that would demonstrate that they lost, so no one has been tried for that before.

I agree that the NYC criminal case is a bit of a stretch, but it's ridiculous to say no one has ever been tried for in the past since it's almost the exact same scenario that John Edwards was prosecuted for.

[Dr. Ed 2]

I don't see how there wouldn't be hundreds of third parties screaming about this. Doesn't Trump have shareholders? And if I were a creditor, I'd be screaming because who says the competitor is as credit worthy as Trump?

I don't see how any of this is legal to begin with -- it's a Bill of Attainder from a politically elected persecutor who promised to "Get Trump" in her campaign. Even if it is a legitimate law, why doesn't her having campaigned the way she did make it a Bill of Attainder on that alone?

Of course the other interesting thing is Bankruptcy law. Were Trump to file that would instantly put this into FEDERAL court and preclude some of the fire sale stuff.

This is banana republic stuff that I never thought I would see in the USA.

[Martinned]

Sure, except that it's neither a bill nor an attainder. But otherwise, sure. I'd be the first to agree that prosecutors shouldn't be elected.

[Brett Bellmore]

It's a bill of attainder in the sense that the action against Trump IS based on a bill, it's just that said NY law empowered the AG to impose the penalties against whoever he liked, without affording them a trial first.

So, a bill of attainder with the target selection outsourced to the AG.

[Martinned]

More commonly known as "a law".

[Brett Bellmore]

Yeah, and "laws of attainder" are so much better than bills of attainder, right?

[loki13]

While a person might argue selective prosecution (although it isn't), this certainly isn't a Bill of Attainder.

Altogether now- if a cop pulls you over for speeding, even though other cars are going the same speed (or faster!) than you ... that doesn't mean that the speed limit is a Bill of Attainder.

[Martinned]

I said nothing about a law of attainder. The thing you're complaining about is just a law. It doesn't mention Trump anywhere, either explicitly or implicitly.

https://constitution.congress.gov/browse/article-1/section-9/clause-3/

[Brett Bellmore]

No, it delegates the victim selection to the AG.

[loki13]

Again, general laws delegate the "victim selection" to the executive branch.

To bring in the analogy in again- you can't catch every speeder. But it's neither selective prosecution nor a Bill of Attainder to say that you happened to be the one caught speeding.

[Brett Bellmore]

What makes a bill of attainder a bill of attainder, is that it designates somebody as guilty, rather than arriving at guilt as the product of a trial.

Delegating that designation to the AG is not materially an improvement. Hell, delegating it to a judge isn't materially an improvement, either!

Note that the judge in this case, based on the AG's accusation, proceeded to attempt the dissolution of Trump's enterprises prior to any trial. He declared Trump obviously guilty, prior to any trial.

An appeals court put that dissolution on hold until a trial, but before the same judge? The conclusion of the trial has already been announced in advance.

[loki13]

Well, there's actually more to it than just "designating somebody as guilty." If you are genuinely curious, the modern test is in Nixon v. Adm. of Gen. Srvcs., 433 U.S. 425 (1977). The Court stated that a law (statute, etc.) is a bill of attainder only if it (1) applied with specificity, and (2) imposes punishment without a trial.

To be applied with specificity, it has to be an individual or defined group (although you can, in certain circumstance, regulate a class of one). That's why there also has to be punishment. To determine if there is punishment, there are three tests- (1) historical, (2) functional, and (3) motivational.
Historical- Death sentences, imprisonment, banishment, and employment bans.
Functional- Whether the law can reasonably be said to further nonpunitive legislative purposes.
Motivational- Whether the legislative record (cue up Scalia, and animus) evinces a congressional intent to punish.

As an FYI, even though in that case the law referred to Nixon by name, it wasn't an attempt to punish, so it wasn't a Bill of Attainder.

Anyway, everything you write is irrelevant to the issues; regardless of your outrage, Trump is receiving due process. The whole point of due process is that you get a judge (and appeals) which is exactly what is happening here. So arguing that delegating it to a judge isn't materially an improvement isn't just a weird thing to write, it is, in fact, entirely missing the point.

Due process isn't just magic thing. It's the process you are. And if the judge isn't giving you the process you (Trump) thinks he is due, that's what appellate courts are for. It's kind of how the entire legal system works. Weird, huh? 🙂

[Sarcastr0]

You are not describing what the law is, or ever has been, Brett. You and Calabresi can go off and have a party in ought-land if you want, but you are advocating for a radical shift in the legal landscape.

Not an uncommon thing from you these days, and always in service of protecting Trump.

[David Nieporent]

What makes a bill of attainder a bill of attainder, is that it designates somebody as guilty, rather than arriving at guilt as the product of a trial.

And of course nobody was designated as guilty. This is a civil proceeding. And of course liability — not guilt — was arrived at here through litigation. The legislature did not declare Trump liable. The AG did not declare Trump liable. Rather, a judge did, as the result of a lawsuit.

Note that the judge in this case, based on the AG’s accusation, proceeded to attempt the dissolution of Trump’s enterprises prior to any trial. He declared Trump obviously guilty, prior to any trial.

No, none of that happened.

[David Nieporent]

It’s a bill of attainder in the sense that the action against Trump IS based on a bill, it’s just that said NY law empowered the AG to impose the penalties against whoever he liked, without affording them a trial first.

It's not a bill of attainder in any sense, not based on a bill, and no law — let alone the law you describe — empowered the AG to do any such thing.

[David Nieporent]

Doesn’t Trump have shareholders?

No. This has been yet another episode of Simple Answers to Stupid Questions.

[David Nieporent]

I don’t see how any of this is legal to begin with — it’s a Bill of Attainder from a politically elected persecutor who promised to “Get Trump” in her campaign. Even if it is a legitimate law, why doesn’t her having campaigned the way she did make it a Bill of Attainder on that alone?

Because words have meaning, and none of those words have any of the meaning that really stupid people like Dr. Ed think they have. Prosecutors don't enact bills, and what does campaigning have to do with anything?

Of course the other interesting thing is Bankruptcy law. Were Trump to file that would instantly put this into FEDERAL court and preclude some of the fire sale stuff.

I think we can all be quite confident that Donald Trump does not intend to turn over control over all of his finances and assets to a bankruptcy trustee.

[Jerry B.]

And make the graft easier to administer.

You know that with that much money, property, etc. flying around, there's going to be lots of potential for a little baksheesh.

[bernard11]

Probably the simplest way would be to contact Trump’s competitors, and offer the whole kit and kaboodle, unbroken up, to the first one who agrees to pony up the fine.

Have you ever heard of an auction?

An open auction of each of the properties, well-publicized, attracting knowledgeable, well-financed, bidders, should produce prices that are FMV. Or do you not understand how markets work?

Indeed, there might well be a bidder - the Saudis, a Putin agent - who wouldn't mind currying a bit of favor with someone who has a decent chance of becoming President in about a year.

[Bob from Ohio]

"ndeed, there might well be a bidder – the Saudis, a Putin agent – who wouldn’t mind currying a bit of favor with someone who has a decent chance of becoming President in about a year."

Serves your side right if that happens.

[bernard11]

OK, Bob.

So you wouldn't mind having a President in hock to Putin or the Saudis.

Very patriotic.

[Bob from Ohio]

You seek to seize the freedom and assets of a political opponent in kangaroo courts. A Putin tactic.

Then you use patriotism as a retort, like any scoundrel.

[Krychek_2]

Bob, even if you think the Democrats deserve four more years of Trump, America does not.

[Bob from Ohio]

America was fine the first time.

[Krychek_2]

Like hell.

[Bob from Ohio]

No, not all like hell.

Only occasional grass cutting in the Mid East, no war in Europe, low unemployment, nearly no inflation and fewer [than now] illegal immigrants .

Covid disrupted things but Trump didn't cause that.

[ObviouslyNotSpam]

It would probably be analogous to a Chapter 7 bankruptcy liquidation; a trustee would take charge of the assets and sell them on behalf of the State, with the residual going to the former owners. It's not a complicated process.

[Brett Bellmore]

The interesting question is, after the assets are sold at a fraction of their value, the fine paid, and Trump gets back a pittance of his former wealth... Trump will undoubtedly appeal.

Suppose he wins the appeal. Does NY have to make him whole? What's that going to involve, a check for $2B?

[Sarcastr0]

Trump will be fine, Brett, I don't think you need to worry about him becoming destitute.

[Martinned]

Just to be sure, I think Brett should send him a donation anyway.

[Don Nico]

Nice duck.

[Ed Grinberg]

Evasion, obfuscation, and gaslighting is all he's got.

[bernard11]

Don,

As I’ve said several times I think it’s cultish silliness to think that a sale will produce “a fraction of their value.” There will be market forces at play, one way or another, bringing the prices to a fair level.

That might not match Trump’s valuations, of course, but they are BS.

A decently run auction will produce that result, for example. Suppose a property is put up at auction, with plenty of publicity and knowledgeable, well-financed bidders. What makes you think that the final price will be unfairly low? Wouldn’t lots of people say that that is the market value by definition?

And in fact, the high bid might well be higher than what the value proves to be in the future.

[Don Nico]

bernard,
i did not say anything about the questions that you asked. i only said that S_0 ducked asking the question that he was asked.
but you can ask Brett your questions.

[bernard11]

Don,

I have raised these points a number of times and have gotten not much in the way of responses, though LoB, below, did raise a reasonable issue.

[Life of Brian]

What makes you think that the final price will be unfairly low? Wouldn’t lots of people say that that is the market value by definition?

I personally don't know of anyone (but you now, I guess) who pretends properties sold at auction generally command anything close to their fair market value when sold through conventional channels. Auction sales generally require sizable down payments at time of winning bid, followed by payment in full on an aggressive time frame -- this boxes out a large segment of the potential buying pool whose participation otherwise would better inform the ultimate sales price.

[bernard11]

I personally don’t know of anyone (but you now, I guess) who pretends properties sold at auction generally command anything close to their fair market value when sold through conventional channels. Auction sales generally require sizable down payments at time of winning bid, followed by payment in full on an aggressive time frame — this boxes out a large segment of the potential buying pool whose participation otherwise would better inform the ultimate sales price.

I agree financing can be an issue in some cases. I suspect it won't be for serious bidders on Trump properties.

[Life of Brian]

Yes, because all someone in that tier has to do to get the juice flowing is call up their relationship contact in their favorite bank and give them a quick verbal on their current net worth and how much they believe the subject property is worth....

Oh, wait a sec.

[bernard11]

Could be a problem depending on time frame, but you might be surprised. If they have other properties they can use as collateral in the interim that might be good enough.

Anyway, I don't think the receiver, or trustee, or whoever, isn't going to allow a reasonable length of time, and of course potential bidders don't have to wait to start working with the bank.

[Absaroka]

"Suppose a property is put up at auction, with plenty of publicity and knowledgeable, well-financed bidders."

Sure, but that's akin to 'Suppose a spherical cow is on an infinite frictionless plane...". i.e. it matters whether there are a number of willing bidders. That's not true in all cases.

For a real world example, I'm a hobby machinist and have gone to a lot of machine shop auctions. Machine tools (lathe, milling machine) are large, expensive, and expensive to move, and the supply and demand are both very sporadic.

For example, someone develops an interest in the hobby and wants a lathe. Even in a big city he might wait years to see a suitable one come on the market. If there is an auction with one lathe and two folks who have been waiting for years, the sky is the limit. If there is another auction a week later, the disappointed guy from the first auction is going to get it for a lot less. If there is another auction in six months, no one might want it at any price.

To be clear, I have no clue at all whether an auction of some particular Trump property would be like selling some common widget on ebay or like machine tools; I'm just pointing out that you can't just say a forced auction always nets a fair price.

[bernard11]

Sure, but that’s akin to ‘Suppose a spherical cow is on an infinite frictionless plane…”. i.e. it matters whether there are a number of willing bidders. That’s not true in all cases.

Not quite, Absaroka. My assumptions here, which could prove wrong, are:

1. Auction is well-publicized. I think we can count on Trump to take care of that.

2. There are a fair number of knowledgeable bidders. There is no shortage of people and firms in the business of investing in NY real estate. A fair number of them have been quite successful, know the market, understand valuation, and have access to financing.

This will not be at all like your lathe auction.

[Absaroka]

Maybe, maybe not - not my area of expertise. But I'm not sure selling skyscrapers is as liquid a market as selling a 10 year old Honda Civic.

I recall a fair number of articles about the Seattle downtown market over the years which went like 'so-n-so found a buyer for such-n-such tower after looking for three years'. If you are deep into the NYC skyscraper market and know it is much more liquid than the Seattle skyscraper market, fair enough.

[bernard11]

I'm not deep, not even toenail deep, in the NYC skyscraper market.

But if you can't find a buyer for your building, doesn't that mean it's not worth what you thought?

[Absaroka]

"But if you can’t find a buyer for your building, doesn’t that mean it’s not worth what you thought?"

In a liquid market, sure.

Maybe this will align with your political preferences: when the Japanese were interned, do you think they got fair value from the forced sale of their properties? I mean, they took the deals they could get, so obviously they got what the properties were worth, right?

'Fair market value' is the price agreed to by a *willing* seller and *willing* buyer. If one of them isn't willing, all bets are off.

[Bob from Ohio]

"becoming destitute."

Theft is fine if the victim is not destitute!

[Magister]

Plenty of people have been saying fraud is OK because the bank hasn't complain.

Most likely any sale of Trump LLCs would be blocked until all the appeals are complete.

[bernard11]

What makes you think they will be sold at a fraction of their value?

That's sheer conspiracy-mongering.

[David Nieporent]

Setting aside the continued insistence that other real estate developers would just let one of their competitors buy Trump's assets at a fire sale — which is insane — Trump is going to appeal before any assets are sold.¹ There will be a stay of any such sale pending the appeal.
​
​
¹Though, who knows, when you hire a parking garage lawyer?

[Joe_dallas]

Obviously - The problem with the scenerio you outlined is the properties would no longer be subject to the normal willing buyer willing seller concept. The properties would likely be sold at distressed pricing.

[bernard11]

Why will they be depressed? Will the price be set arbitrarily?

You know, commenters keep saying things like that, but I haven't seen anyone actually describe the mechanism by which that will happen. Mostly you and the others seem to be relying on sales of foreclosed houses and the like, which I don't think are a good analogy to Trump Tower, for example.

[Davy C]

For one thing, the seller just can't say "no" if they don't get the full value, and the buyers know this.

[David Nieporent]

Do you not understand the concept of an auction?

[ObviouslyNotSpam]

I was just responding to a question, "how does it work?"

That's (probably) how it would work. It's the same for any other analogous situation where the government seizes and sells property.

So what's your point? That the government should never seize property and sell it, because the process they use is unlikely to get the best possible price? Good luck with that one...

[Michael P]

People here were citing third parties in support of evidence-free accusations against Israel. Now we have this:
https://www.timesofisrael.com/bbc-apologizes-for-report-accusing-idf-of-summary-executions-in-the-gaza-strip/
Will anyone here have the same degree of integrity?

[ObviouslyNotSpam]

I wasn't aware of any reports saying that the IDF was "carrying out summary executions in the Gaza Strip" until now. Now I know the reports were not true.

What is it you want?

[Michael P]

Basic honesty, which you have failed to bring to the table.

One of your fellow travelers in particular pushed evidence-free claims from groups much less respected than the BBC, and defended posting them because it would have been irresponsible to NOT propagate antisemitic rumors.

[Sarcastr0]

What you want is guilt by association.

You're no friend of Israel.
For assholes like yourself what's going on in Israel is just another way to attack the left.

[Ed Grinberg]

"For assholes like yourself what’s going on in Israel is just another way to attack the left."
Well, let's see:
A bunch of really unpleasant people do some really awful things in Israel. The Left comes out in support of ... the really unpleasant people. But Michael P is the bad guy for attacking it!

[Sarcastr0]

That’s not what he’s attacking.

[Rev. Arthur L. Kirkland]

.

A bunch of really unpleasant people do some really awful things in Israel.

When did this become a discussion concerning Netanhayu, Likud, and the other right-wing jerks in Israel?

[Bob from Ohio]

"You’re no friend of Israel."

Oh, you are the spokesman for Israel now? This friend of Israel thinks Michael is also one.

[ObviouslyNotSpam]

Oh, you want me to apologize for something I didn't do, had no knowledge of and would have disagreed with, because someone you mysteriously think is a "fellow traveler" of mine allegedly did those things.

Now I know.

[Michael P]

What happens in Vegas ... sometimes draws national attention. Especially if it involves a deputy DA getting arrested for DUI after being clocked at 73 in a 35 zone.
https://www.8newsnow.com/news/local-news/deputy-district-attorney-faces-dui-reckless-driving-charges-after-police-clock-her-at-73-in-35-mph-zone/

[Frank Drackman]

Kayla Farzaneh-Simmons?? Somehow I think I know what her mugshot looks like.

[Dr. Ed 2]

The Boeing 727 MAX aircraft -- Air Alaska lost a door plug on a nearly-new aircraft. Rumor is that "loose hardware" is being found in other similar aircraft -- it's a bolt with a hole drilled through the end of it so that a wire can be inserted to keep the nut from loosening.

This is poor workmanship -- Detroit circa 1970's -- and the question is where *else* is Boeing doing poor workmanship?

[Michael P]

The FAA is hiring the obviously right people to address such shortcomings: https://nypost.com/2024/01/14/news/faas-diversity-push-includes-hiring-people-with-intellectual-and-psychiatric-disabilities/

[Sarcastr0]

So the NY post writes a piece that merely notes that the FAA hires people with disabilities. They intimate with zero reason that this is causally related to the door failure. And of course them mention 'diversity and inclusion.'

Bigoted shit.
And Michael eats it up.

[Brett Bellmore]

The door failure wasn't due to FAA problems, it was due to Boeing problems.

[Sarcastr0]

Michael disagrees.

Or sort of; he doesn't much care about the specifics, just wants to blame DEI.

[Michael P]

Learn to read. Stop making up ideas and attributing them to your perfect enemies. Be better.

[Sarcastr0]

You blame the FAA like 3 comments above for not being equipped to address these 'shortcomings' so you can go off on hiring handicapped people.

If you're going to post something that bad, you only compound the badness by being unable to stand by it.

[Stephen Lathrop]

FAA administrators have said cheerfully to me that they prize air traffic controllers with the right kind Asperger's. They said they regarded it as a serious qualification for the job—terrific attention to detail and rigid rule following are key job requirements.

[Don Nico]

That could well be, given appropriate supervision.

[Michael P]

How many FAA administrators do you talk to? There's only one at a time.

[Stephen Lathrop]

Michael P, I have never spoken with any but Officers and Executives of the FAA. With those I have conversed at length in day-long meetings too numerous to remember the count.

Those meetings also included senior technical staff. The subject was almost always a proposed project to enlarge Logan Airport at Boston. Controversy over that plan dragged on for years, because the FAA had initially tried to avoid following environmental law in a case where it became unambiguous that they were legally required to do so.

I organized 3 Boston-area communities to join forces and sue the FAA and the Massachusetts Port Authority. We were then joined by about 15 other Boston-area communities in a resulting years-long project to assess and minimize area-wide environmental impacts of the project.

One outcome of that effort was an area-wide reduction of noise impacts, after the FAA agreed to incorporate optimal use of over-water airspace it had previously underutilized. My own community was spared entirely from a previously-proposed doubling of noise impacts—which in parts of my community, including at its high school situated directly under the centerline of the final approach to a major runway—had already been ranked by FAA standards as locations too noisy to be suitable for residential use.

Now, more than 20 years later, the noise situation at the high school has not only avoided the proposed doubling, but remains quieter than when the project began. Some of that noise reduction is owed to reforms resulting from FAA operational policy compromises; some of it is owed to continuing technical improvements to reduce noisiness of the civilian jet transport fleet. None of it would have happened if the doubling of local operations had not been prevented.

[Commenter_XY]

The internet memes on the 737-9 MAX I have seen are hilarious, and merciless.

Many of them follow the theme of: Boeing, the company who wants you to fly on the shitty airplanes that fall apart in the sky while you fly to your ultimate destination (which could be heavenly, considering the plane).

A lot of decisions were made creating the MAX line. In retrospect, bad ones considering the safety performance of the MAX fleet.

I just wonder about Boeing's legal liability. I would not want to be the Boeing CEO this morning. Or Head of Engineering.

[Brett Bellmore]

If you were head of Engineering, you might be thinking, "Finally, we'll have some leverage to tell the accountants to take a hike, and go back to making the planes safe again!"

Well, no. The guys down the food chain in engineering are probably thinking that, the guys at the top will have to have been complicit.

[bernard11]

It's not the accountants, Brett, it's the managers.

[Don Nico]

I would not be so sure Bernard. Too many organizations are effectively "run" by the CFO, who has disproportionate influence to the engineering or operations directors.

[Commenter_XY]

That is the f'ing truth = Too many organizations are effectively “run” by the CFO, who has disproportionate influence to the engineering or operations directors.

Those are the companies that stop innovating and growing, and start dying.

[Sarcastr0]

go back to making the planes safe again

Planes have not become unsafe. You're manufacturing a crisis.

[Stephen Lathrop]

Sarcastro, recent 737s have become notably unsafer than formerly. It is a very bad sign when a brand new aircraft starts to come apart in the sky.

More generally, there is disturbing history of companies which thrived long on the basis of selling products based on superior technical quality, but got in sudden trouble after a B-school-trained CEO came in to mastermind a new emphasis. Two such companies I happen to know something about are the former Morrison-Knudsen Company and Hewlett-Packard.

When your company's hard-won reputation for high-tech electronic engineering reliability gets traded in for an opportunity to short customers on printer cartridge contents, that is a hard hit to recover from. Boeing looks to be another like those. What will probably save it is only the monopolistic niche it serves. No matter how many lapses show up, airlines cannot afford to abandon one of the only two vendors they have to supply aircraft.

[ducksalad]

What Hewlett-Packard executives did was spin off the exact parts of their business that had made the company's reputation.

"airlines cannot afford to abandon one of the only two vendors they have to supply aircraft."

I think Embraer has chance to move into larger jets here.

[bernard11]

H-P is an excellent example.

Under Fiorina they started spending time on acquisitions and financial engineering nonsense instead of making quality products.

I gave up on them after a product I bought never worked right, and I kept being assured that a software fix was on the way. They must have been working on it somewhere in the Andromeda galaxy, because it never arrived.

[Brett Bellmore]

I gave up on them after they insisted that I reformat my hard drive and reinstall all the software as a "diagnostic" before they'd admit the graphics card on my under warrantee computer was broken.

[Don Nico]

i have to agree with you on this one

[myself]

It's true the right trying is dishonestly trying to blame safety issues on DEI, but that doesn't mean Boeing's newer planes aren't having more safety issues (whether or not that crosses the line into unsafe).

This latest issue seems to be a miscommunication with the subcontractor about who was supposed to bolt that door plug in.

The root cause is their merger with McDonnell Douglas.

Basically, as McDonnell Douglas was failing only the most ruthless corporate bean counters survived. So when Boeing bought them they ended up with all those mangers who were the last survivors of corporate Hunger Games. Those battle hardened McDonnell Douglas managers moved up the ranks and turned engineering focused Boeing into McDonnell Douglas.

I mean they literally moved the corporate HQ to another city because they were concerned that having the HQ beside the factory meant that the executives were spending too much time thinking about the manufacturing of the planes!

[Sarcastr0]

I can't find any thing statistical to get a baseline, but it sure looks like they've had some manufacturing issues,

I'm not seeing much about an uptick in operations and maintenance issues.

[myself]

One way to increase the number of maintenance issues is to do better inspections. If Boeing is skimping on the inspections you wouldn't necessarily expect an uptick in operations and maintenance issues, you'd expect more actual safety incidents (which are too rare to be statistically significant).

Either way, that wasn't the only Mar 9 with door plug issues, and the manufacture was being sued for "sustained quality failures" even before the blown out door.

Note, I blame Boeing for the subcontractor failures. Spinning off the unit so they could exert more financial pressure without worrying about the engineering consequences is exactly the problem I described with the McDonnel Douglas makeover.

Similarly, Alaska airlines finding a bunch of other planes with "loose hardware" indicates Boeing wasn't doing its job w.r.t. inspections.

[Brett Bellmore]

Look, any time you add priorities that are unrelated to the functioning of the company, you risk the functioning of the company. Because any resources you devote to only promoting left-handed people, or corporate Wicca retreats, are resources not available for, oh, making sure planes don't fall out of the sky.

So, yeah, DIE is bad for everything companies are supposed to be doing. Unavoidably so.

How is a corporate commitment to hiring and promotion on the basis of race, sex, and psychiatric problems instead of competence NOT going to impact everything the corporation is supposed to be doing?

[Martinned]

Sure, but that assumes the conclusion. (That DEI is unrelated to the functioning of the company.)

https://en.wikipedia.org/wiki/Stakeholder_theory

[Brett Bellmore]

Oh, look, devoting corporate resources to something other than making a good product at an affordable prices has a theory. Must be harmless, then.

[Stephen Lathrop]

Bellmore, DEI could plausibly prove beneficial to product quality. For instance, hypothetically assume DEI efforts facilitate access to highly-trained former-military members of minorities, who had previously been disinclined to work at a company which showed no sign of a minority community among its employees.

The point is you do not know. And rush to assume a racist premise.

[Martinned]

O, I'm sorry, it is somehow your impression that it is the purpose of a company to make a good product at an affordable price? WTF gave you that idea?

[Sarcastr0]

Ah yes, knee-jerk rejection of DEI without even really knowing what it does. The GOP thanks you for your service. Luckily other than a tonic for the base, this bit of nonsense doesn't appear to be catching on.

1) Consumers want more than a good product these days. I know you can't understand people with actual market research disagreeing with your hot take based business judgement, and posit a massive conspiracy of woke CEOs, but most folks seem to accept this effect is real.

2) Labor-wise, treating employees like something other than interchangeable cogs and thus expanding your effective talent base might actual make for a better product at cheaper rates. Especially given the expectations of the younger labor pool these days. Though good news for you, corporations mostly just to limp trainings these days, so DEI isn't really a thing in most places.

3) Corporate citizenship was the reflexive expectation in the post-WW2 era, when taking care of their workers was the responsibility of businesses like GM and the like. The concept was named in the 1970s, and continued as a thing through even the 'greed is good' 80's, until the 1990s brought CEOs gutting their companies and leaving their workers holding the bag.
I was young, but I remember how even the Ayn Rand acolyte Alan Greenspan was shocked at this jettisoning of responsibility.

[Brett Bellmore]

"1) Consumers want more than a good product these days."

I'm not seeing a lot of evidence that this is true of a very large fraction of consumers. I'm seeing no evidence at all that consumers prioritize DIE over planes not breaking in mid-air.

"2) Labor-wise, treating employees like something other than interchangeable cogs and thus expanding your effective talent base might actual make for a better product at cheaper rates."

But we're discussing DIE, instead.

"3) Corporate citizenship was the reflexive expectation in the post-WW2 era, when taking care of their workers was the responsibility of businesses like GM and the like."

Corporate "citizenship" has been replaced with corporate "partisanship", and it has mostly become an excuse for management to spend stockholders' resources on their personal political projects.

[Sarcastr0]

1) I’m not seeing a lot of evidence that this is true of a very large fraction of consumers. I’m seeing no evidence at all that consumers prioritize DIE over planes not breaking in mid-air.
"The American consumer is undeniably becoming more inclusive. Responding to our survey1 in October 2021, two out of three Americans told us their social values now shape their shopping choices. And 45 percent—likely representing well over a hundred million shoppers2—believe retailers should actively support Black-owned businesses and brands. This 45 percent represents the inclusive consumer."
https://www.mckinsey.com/industries/retail/our-insights/the-rise-of-the-inclusive-consumer
A trivial Google. You don't see what you don't want to see.

2) If your definition of DEI is 'only the bad things' that's you, being stupid, not DEI. To be fair, the right has worked hard to make you stupid, but you still have agency and chose to stick with what those with an agenda against DEI tell you it is.

3) Corporate “citizenship” has been replaced with corporate “partisanship”
This remains fucking nuts. CEOs are not a massive woke conspiracy.
You also deflected from my point about corporate citizenship, which is that 'devoting corporate resources to something other than making a good product' was actually the expectation in a period of incredible prosperity growth in this country.

[myself]

That's an interesting point.

For instance, your priority is fighting the culture war and attacking anything you consider "woke".

As such, even when given a detailed explanation of why Boeing is having quality and safety issues, and specific evidence to back up that explanation, you ignore all of that and focus on a narrative of sex, race, and supposed psychiatric problems for which you have zero evidence.

Your obsession with woke is blinding you to actual organizational problems.

[Krayt]

“A bolt with a hole drilled through the end of it for a wire” I used to do safety wiring on machine tooling for several summers during college. There’s even a special tool to twist the wire on itself before you attach the other end elsewhere, usilually anothet bolt, in an S shape, so that a loosening bolt actually pulls the wire tighter.

There could be mistakes, of course, but that should be caught in inspection.

[jimc5499]

Exactly. I have a pair of safety wire pliers in my toolbox right now. I used to assemble aircraft. I would follow a work order step by step, signing off on each step as I did them. For something like these bolts there would be two inspection steps. On an inspection step I would have to get a Quality Assurance rep to witness me torqueing the nuts on to those bolts and then watching as I safety wired them. Then the QA rep and I would sign off on them together.
The documentation would stay with the aircraft until it left the plant and then it would be stored as long as the aircraft was in service. It shouldn't be too hard to go back and find out who signed off on those bolts.

[Frank Drackman]

Funny how its only affecting one model. I think I saw this on a "Columbo" episode once, or maybe "Quincy"
pretty simple, who profits? who has the means? I smell a big fat Airbus plot. (and I fly on alot of Airbuses, love the A330)

Frank

[Michael P]

I look forward to the arrests and prosecutions over this insurrection and attempted coup.
https://nypost.com/2024/01/13/news/pro-palestinian-protesters-chant-anti-biden-slogans-outside-white-house/

[ObviouslyNotSpam]

Why would you think "mostly peaceful" protests featuring the popular phrase, “Fuck Joe Biden”, at which temporary fencing was “temporarily damaged”, would be considered an “insurrection” or an “attempted coup”? Do you think maybe you’re missing something?

[Dr. Ed 2]

Just like in 1968, the Dem Convention is in Chicago.
Should be entertaining...

[Michael P]

They were violently attacking federal officers at a major federal building in Washington DC, causing evacuations, while calling explicitly for the replacement of Joe Biden as president. Even before you get to the whole genocide-as-policy bit that Commenter_XY mentions below, that checks all the major boxes of the accusations about January 6th.

[Krayt]

Sorry, flagged. If only this were a modern system with an unflag button.

[Mr. Bumble]

It doesn't do anything except prevent you from seeing it. Everyone else can still see it.

[Michael P]

Indeed. I've also accidentally flagged comments, and wish I could unflag them, but it doesn't seem to do any harm except the flagger's inability to read the comment. (Maybe the VCers or people at Reason have to delete an entry or mark it as read, but I hope not.)

[Frank Drackman]

If only peoples had better things to do than flagging comments.

[ObviouslyNotSpam]

None of that meets any rational definition of "insurrection", and certainly not the definition which Trump is facing in his 14th Amendment disqualification case.

You are entitled to your own opinions, but not your own facts.

[Frank Drackman]

Joe Biden wasn't President on January 6th.

[Commenter_XY]

It was a mostly peaceful political protest. Don't peaceful political protestors routinely tear down a section of reinforced fencing on White House grounds to make their point?

Other outlets reported on that protest too, and the reported some of the things that were said about the Jews, and some of the signage carried. They want the Jews dead. Not Jews in Israel, they mean Jews here in America. They want us dead. Philly's Shoah memorial was painted with a swastika. this weekend (on Shabbat).

It is happening here. Right in front of our eyes.

[Dr. Ed 2]

Isn't that fencing designed to stop a truck?

[Brett Bellmore]

Doesn't look like it to me; I've seen sturdier looking fences around construction sites.

Probably you're thinking of the bollards they installed some time ago.

[Mr. Bumble]

No, it is a small mesh anti-climb fence.

[Longtobefree]

Never again?

[ObviouslyNotSpam]

The article said "temporary fencing", which had been "temporarily damaged", not that it makes a huge difference. You're (deliberately, I suspect) making the damage sound worse than it was. Which is puzzling because, as I mentioned, it doesn't make a huge difference.

Except for propaganda purposes.

[Moderation4ever]

What are you expecting, the park to be cleared and President Biden to go out and hold a bible?

[Michael P]

If any of us doubted that you lack the ability to understand short and simple statements in English (a whopping 14 not-very-long words!), you have now dispelled those doubts.

[Brett Bellmore]

”I look forward to the arrests and prosecutions over this insurrection and attempted coup.”

You’re going to be disappointed. They didn’t bother arresting anybody, even.

I wonder if these protesters were paid, too?

[Sarcastr0]

Why not add a bonus conspiracy to your conspiracy post?

[Brett Bellmore]

It's a reasonable question, given that Palestinian protesters have been paid to protest in other demonstrations.

KINSELLA: Protesters paid to take part in pro-Palestinian demonstrations

Of course, I realize that you're aggressively disinterested in the topic of who's financing this supposedly spontaneous movement.

[Sarcastr0]

I like direct evidence of the thing you speculate about, not some other separate anecdote you’ve decided is proof of a secret funding conspiracy underlying all these protests.

Once again, I'm not saying it's impossible. I'm saying you have no support, just baseline speculation.
Because your threshold to spin out into speculation is just shockingly low.

[Nige]

You fucking babies.

[Nelson]

"I look forward to the arrests and prosecutions over this insurrection and attempted coup."

Right, a protest (violent or not) is the exactly same as trying to stop the certification of an election.

What a clown.

[Martinned]

Also in the news today:

Amazon has given online shoppers the choice of whether or not to allow data from their purchasing history to be shared with other of its platforms, such as its video and audiobooks services, as part of efforts to comply with the EU's Digital Markets Act by a March 6 deadline. Amazon’s move mirrors one by Google, which has also given its users the chance to opt out of the automatic combination of data across platforms.

[Mr. Bumble]

Default should be opt out.

[jb]

It is. The quote above from Martinned is misleading.

[Martinned]

It seemed impolite to quote more than the summary paragraph from a new source that charges my employer significant amounts of money for their news updates. The nuance is in the rest of the story, I promise.

[Stephen Lathrop]

Lee Moore, you might have understated the temperature differences. German lubricants precluded getting their tanks and trucks going during the worst of it.

German infantry was still being supplied by horse-drawn wagons. They took an astonishing 600,000 horses along on the Russian invasion. They were eventually forced to eat many of them.

[Lee Moore]

I also recall that one of their logistical problems was that they used regular horses from Germany and surrounding territories, which differed from Russian horses in two important respects :

1. They weren't used to eating the sort of grasses left lying around in Russia by Mother Nature, and so much of their fodder had to be brought from the West, using up valuable carrying capacity, and

2. they were bigger and heavier than Russian horses, and so got bogged down more easily in the mud of the rasputitsa.

None of which should have come as a surprise to the German planners, but apparently it did.

[bernard11]

This is an interesting exchange, but where did it come from?

[Stephen Lathrop]

I mis-posted out of order. It was in response to something Moore mentioned far up the thread.

[Stephen Lathrop]

Martinned, what if anything does the EU act have to say about opt-out and opt-in?

[ObviouslyNotSpam]

I know with the cookie consent, the usual way this has been implemented is for the user to be offered two initial choices, "accept" or "modify". The practical result is that users have a one-click opportunity to agree, but a two-or-more-click opportunity to disagree. This is probably less than ideal from a user perspective: the disagree option should be equally as easy to implement as the agree option.

[John F. Carr]

The modern name for this sort of asymmetry is "dark patterns".

[Martinned]

Sort of. Dark patterns usually refers (primarily) to the design of the website, i.e. to the art of designing a website so that the consumer notices the things the designer wants them to notice, and doesn't notice things like the button to unsubscribe.

[Martinned]

The DMA requires it to be an opt-in:

Art. 5(2) DMA
The gatekeeper shall not do any of the following:
(a) process, for the purpose of providing online advertising services, personal data of end users using services of third parties that make use of core platform services of the gatekeeper;
(b) combine personal data from the relevant core platform service with personal data from any further core platform services or from any other services provided by the gatekeeper or with personal data from third-party services;
(c) cross-use personal data from the relevant core platform service in other services provided separately by the gatekeeper, including other core platform services, and vice versa; and
(d) sign in end users to other services of the gatekeeper in order to combine personal data,

unless the end user has been presented with the specific choice and has given consent within the meaning of Article 4, point (11), and Article 7 of [the GDPR].

Where the consent given for the purposes of the first subparagraph has been refused or withdrawn by the end user, the gatekeeper shall not repeat its request for consent for the same purpose more than once within a period of one year.

https://eur-lex.europa.eu/eli/reg/2022/1925/oj

[Stephen Lathrop]

Thank you. Opt-in is the only method that ought to be permitted, at least in cases where the user is enabling surveillance marketing.

[Martinned]

Note that the DMA rules only apply to companies that have been designated as gatekeepers. Smaller companies can do what they like, at least as far as the DMA is concerned.

[Dr. Ed 2]

NH is the opposite of NY -- a Republican AG fighting with the Dems over the Jan 23 primary. Voter suppression, etc.

Well, what if NH refuses to put Brandon on November's ballot for failing to recognize NH primary? It's at least four electorial votes, maybe more.

[Moderation4ever]

As long as President Biden's name is on the ballot who cares?

[Michael P]

"What if a state leaves Biden off the ballot?"
"Who cares? Let's go Brandon!"

Quite a few states are considering the question. https://www.newsweek.com/republicans-pull-trigger-plan-remove-joe-biden-ballots-1855042 is about swing states, but more GOP-leaning states are also looking at it.

[Moderation4ever]

A number of Americans don't want a repeat of 2020. Taking Biden and Trump both of state ballots might be a way to achieve that goal.

[Mr. Bumble]

Let's hear it for democracy.

[SimonP]

Let them try it. It's not a serious effort.

Whatever the merits for disqualifying Trump, the discussion is an intelligent one, with careful people on both sides of the question coming out different ways.

In contrast, the politicians suggesting that Biden should be removed, as well, are barely more coherent than the internet commenters I frequently engage with here. It would be a mistake to describe their arguments as "hand-wavey" because that would imply they applied some effort to formulating them. They're basically just saying, "No fair!"

So, let them try it. Their efforts will fare in the courts about as well as Trump's claims that the 2020 election was stolen. Politicians can lie and mislead. The lawyers they hire can't.

[Ed Grinberg]

.

They’re basically just saying, “No fair!”

re: "just"
https://www.kiplingsociety.co.uk/poem/poems_normansaxon.htm

[Magister]

Eugene McCarthy was the only candidate on the New Hampshire primary ballot in 1968, but lost to write-ins for LBJ, who had not yet withdrawn from the race; Robert F. Kennedy had not yet announced his candidacy, and the eventual nominee Hubert Humphrey entered the race even later.

There is no basis for not listing Biden on the November ballot if he is the Democratic nominee.

[Commenter_XY]

I have been following some coverage on The Hague and allegations of genocide against Israel (from the Israeli perspective). This was a 3-5 minute read.

https://www.timesofisrael.com/israel-rejects-genocide-claims-at-the-hague-says-south-africas-allegations-baseless/

One question. The article stated (toward the end) that ICJ decisions are final and cannot be appealed. I suppose that would apply to any 'sanction' they call for, correct? (meaning, cannot appeal).

[Dr. Ed 2]

Nuke the Hague!

[Noscitur a sociis]

Play the hits, Dr. Ed!

[Martinned]

The article stated (toward the end) that ICJ decisions are final and cannot be appealed. I suppose that would apply to any ‘sanction’ they call for, correct? (meaning, cannot appeal).

Yes. Any ICJ matter that's important enough for you to have heard of it will be dealt with by the full court, so no appeals.

https://icj-cij.org/index.php/chambers-and-committees

[Don Nico]

They can, however, be ignored

[John F. Carr]

Israel will ignore a finding of genocide at the risk of making the United States veto a Security Council resolution enforcing the ICJ decision.

[Don Nico]

True enough.
Please note that when Israel suggested a force from Arab nations to police Gaza, those nations declined.
Also, the US rejects the authority of the ICJ.

[Commenter_XY]

Yeah, but I wonder about how cross country agreements, academic exchanges, scientific collaboration would work if the ICJ issued an adverse judgment against Israel. And no appeal.

There is probably contract stuff that is very problematic.

[John F. Carr]

That strikes me as a political question. I could see states feeling obliged not to provide military aid to Israel, especially states which already do not provide military aid to Israel.

[Martinned]

That may be the right answer under US law, but it certainly isn't under other countries' laws. See here on Opinio Juris (just ignore the fact that the author thinks that the court was wrong to allow the export of weapons to Israel).

https://opiniojuris.org/2024/01/05/summary-proceedings-about-the-delivery-from-the-netherlands-of-parts-for-f-35-fighter-planes-to-israel-part-i/

[Nige]

Especially if you support the ongoing slaughter of civilians and their forced relocation.

[Armchair]

New York has decided to follow the example of Texas and Florida.

Shipping its illegal immigrants elsewhere...

"https://www.startribune.com/minnesota-top-destination-migrants-leave-new-york/600334570/"

That's OK. Texas has lots more to send to NYC, courtesy of Joe's lack of immigration enforcement.

[Dr. Ed 2]

DEPORT THEM ALL!!!!!!!!!!!!!!!!

[Sarcastr0]

'Oh hey when we ship an entire state of people to New York City without warning, they can't absorb them and need to mitigate! This proves something!'

You cheer for the worst shit. These people aren't human to you.

[Armchair]

Looks like the closet antisemite Sarcastr0 is back claiming some people aren't human.

[Sarcastr0]

Hows about you provide any evidence of my antisemitism, you lying asshole.

And don't deflect for your comment above which DOES dehumanize people. To your glee.

You're really a bad person.

[Armchair]

Perhaps instead of covert antisemitism, strategic antisemitism is more appropriate in your case.

It basically helps ensure division by encouraging other people's antisemitism, because it's politically useful. For example, when presented direct evidence of atrocities against a Jewish population, just question whether it really happened (like you did a couple days ago). It helpfully provides cover for your actual antisemetic allies who are just calling for the Jews to die.

It's like the supposed "support" for illegal immigration you have. A politically useful position to pretend to have. It allows you to avoid the problem, get a cheap source of labor, and demonize other people. You can assure Texas and the Red States have the burden. But when the problem comes knocking on your door, it's always easier to ship the illegal immigrants elsewhere. It's nice to look virtuous, without having to actually do anything. And when others say "hey, this is a problem, we can't handle this many people all at once", you can point out how mean they are.

[Sarcastr0]

Link to where when presented with direct evidence I questioned the source.

You are just making wild accusations based on lies about me and it really shows what a small, shitty man you are.

[Nige]

'It helpfully provides cover for your actual antisemetic allies who are just calling for the Jews to die.'

This is just an admission that you are calling all criticism of Israel anti-semitism in order to defend their ongoing killing of civilians.

'It’s nice to look virtuous'

When you consider that shipping them around the place is the conservative solution to the problem, you get some notion of how utterly useless they really are.

[Jason Cavanaugh]

"For example, when presented direct evidence of atrocities against a Jewish population, just question whether it really happened (like you did a couple days ago)."

No evidence was presented. You made an allegation, and when Sarcastr0 questioned the veracity of it - an obvious response given your history of blatant lies and disingenuous remarks, you claimed it was 'widely reported.'

So 'widely reported' that you, even in your response (which was your second attempt at stating the claim), failed to provide a link.

[Armchair]

It's been previous linked to. But here it is again

https://nypost.com/2023/11/01/news/head-of-israels-ems-service-describes-horror-of-seeing-babies-slaughtered-by-hamas/

[Armchair]

And again

https://themessenger.com/news/israel-baby-burned-alive-oven-evidence

[Armchair]

And again.

https://www.lbc.co.uk/news/hamas-roasted-babies-in-ovens-israel/

[Armchair]

But you all should continue to deny it. Just like those who deny the Holocaust

[Jason Cavanaugh]

“Just like those who deny the Holocaust”

Indeed, not trusting you – a known politically-motivated liar, at your word, is exactly equivalent to denying the Holocaust.

Maybe you wouldn’t have such a reputation if you bothered to support your arguments with evidence to begin with.

[Armchair]

Note, you STILL don't accept the articles. And are apparently still in denial.

This is characteristic.

[Jason Cavanaugh]

Note: I never disputed the original claim or the articles.

You lied in your representation of the exchange between you and Sarcastr0 and lied about me just now.

Here’s the thread; prove otherwise.

https://reason.com/volokh/2024/01/11/thursday-open-thread-171/?comments=true#comment-10394314

This is just another example of why you’re known as a liar.

[Jason Cavanaugh]

Proven to be a liar, you ran away like a bitch.

A man would own up to their mistakes.

[Bob from Ohio]

"These people aren’t human to you."

They want to go.

You just want them to stay south to pick vegetables for you, like Jerry Nadler.

[Harvey Mosley]

"‘Oh hey when we ship an entire state of people to New York City without warning, they can’t absorb them and need to mitigate! This proves something!’"

Per a Texas.gov website they have sent 37,100 immigrants to NYC. The population of NYC is about 8.4 million. That is hardly an entire state of people. That is 0.4% of the population of NYC.

[Sarcastr0]

From the linked article:
More than 168,500 asylum-seekers have arrived in New York City over the past 20 months, after Texas Gov. Greg Abbott began sending buses of migrants there and to other Democratic-led cities from the southern border.

[Harvey Mosley]

You're smarter than that. The linked article also says "As other migrants followed on their own,..."

Texas has sent 37,100 people to NYC according to this link: https://gov.texas.gov/news/post/texas-transports-over-100000-migrants-to-sanctuary-cities#:~:text=Texas%20has%20also%20bused%3A,York%20City%20since%20August%202022

[Sarcastr0]

I do agree that number is presented ambiguously. And provides no baseline for how many arrive generally.

It does imply that Texas is a but-for cause for the increase.

I'll allow 'entire state of people' isn't right. But I don't think that undercuts my thesis that not much is proved by purposefully overtaxing the system and then noting that it's overtaxed.

(Plus the mayor of NYC is himself no big fan of migrants).

[Jacob Grimes]

That doesn't make any sense. People like Somin have told me that these people are powerhouses of economic growth and prosperity.

[Sarcastr0]

Even Prof. Somin acknowledges transition costs, especially when it's an unexpected surge.

He says some wild stuff; there's no need to strawman him.

[Commenter_XY]

Is that what you call it? Transition cost? = Even Prof. Somin acknowledges transition costs, especially when it’s an unexpected surge.

Truly a Clintonian use of language. Transition cost.

[Bwaaah]

Fortunately, when you bring in more than one person, the transition costs don't increase, because the additional costs are merely duplicative.

[Don Nico]

That was to be expected. The migrants are just pawns in a power game.

[Bwaaah]

What an ironically twisted way to describe people who have the energy and gumption to pick themselves up, travel across the globe, and to establish a life without the protections of citizenship, and in some measure, intentionally at odds with prevailing laws. That's what you call a "pawn?"

On your imaginary chessboard, in your perspective as some kind of distanced overseer, they appear as pawns. But don't confuse what they are with what you treat them as being. An immigrant redistribution transportation strategy may be your view; a free bus ride to a better place is another.

[Don Nico]

thanks for your fake indignation. If you don’t think that the feds, texas and NYC are treating migrants like pawns in a political game, you need to calm down and think about what is going on.

[Bwaaah]

But I do see the feds, texas and NYC as treating migrants like pawns in a political game. And you speak of them as pawns, too.

You're all playing games, and all the little people in your games are called "pawns." That's one very distant view of those people.

I'm just saying that there are real life people coming here, legally and illegally, and no, they are not (with few exceptions) pawns in any stretch of my imagination. The pawns of which you speak only exist on the aspirational charts of bureaucrats and interested intellectuals.

Did you here the one about the pawn who got shipped up to NYC and who died of hunger at the bus stop because the New York City Council didn't have a tent ready for him? (never happened) We need more tent space, or pawns will die. (say people obviously less able to survive than the typical immigrant) Thank god for sanctuary cities, or where would the pawns go? (the same places they always go: wherever they can)

The patterns, paths and nature of immigration exist quite aside from your stories about pawns. Your pity for them is pitiful.

[Don Nico]

I do not see them as pawns, the governments I listed do.

Yet you continually want to misinterpret my comment so that you can feel good and demean me. Sorry, I don't buy it. I grew up in an immigrant neighborhood and I know how our people were treated by the ethnic groups in power,

[Nelson]

Don, reasonable middle stances on immigration aren't allowed. Didn't you get the memo?

The anti-immigration side will only accept "deport them all immediately" or "completely open borders" as acceptable positions. You need to stop being reasonable or moderate and accept that you're an open-borders, leftist, anti-American partisan.

So please stop trying to have a nuanced and substantive discussion. It's interfering with the "invasion" narrative of the hard right.

[Don Nico]

Yup, you're correct. I need to pay more attention to the inbox.
There is no point in try to work out a sensible, equitable policy.

[Nelson]

On the substance, I do think the way that DeSantis and Abbott arr going about this is appalling, as well as exploiting the migrants. If they were giving prior notice and shifting the federal finding they receive, I wouldn't have as large a problem with it, although shipping warm-climate migrants to Chicago and New York in the winter (without any cold-weather clothing) is awfully cruel. I grew up in Chicago, so I know what winters on the lake are like.

With coordination and shared funding, I actually think the dispersal of migrants is a good thing. Sure it would require relocating immigration courts away from the border to be where the migrants are, but sharing the burden (assuming it comes with the necessary funding) would be a good way to ease the strain.

Of course that would require the border states to coordinate with the federal government and the receiving states to distribute the migrants in a way that doesn't overload specific jurisdictions while leaving unused capacity elsewhere.

Especially in the spring and summer, northern cities would be ideal since it would give the migrants time to adjust and prepare for winter. During the fall, temperate states would work. In the winter. Non-border southern states, including Florida, would be the humane place to distribute migrants.

I agree that the border states can't be the repository for all migrants. But the means and method, as well as the duplicity, that Texas (and especially non-border-state Florida) treats the migrants is definitely using them as political pawns to score.points with their base.

Done systemically, ethically, and humanely (with commensurate shares of federal funds), the dispersal model is an excellent way to alleviate the stress on the border states. But Abbott and DeSantis are playing political games, not trying to make a better system, and they're using people as pawns. It's tragic, and an unnecessary tragedy at that.

[Stephen Lathrop]

I see an opportunity for cultural exchange. For each immigrant from Texas, they get back a Bard College graduate, one from Sarah Lawrence, or from New York University.

[ducksalad]

No need to go nuclear here.

[Bwaaah]

“We hear your offer, and we’ve changed our position. We’ll keep the immigrants. At least they aren’t [fill in the blank].”

[Reallynotbob]

Arizona farmer: "we need rain."
Nature: floods arrive
Arizona farmer: "too much rain!"
VC comment section: "rain is the worst."

[Armchair]

Product liability law in California is about to get even worse...

So, there's product liability law for a good reason. Releasing a dangerous, unsafe product is problematic. California, of course, goes to far with prop 65 nonsense. But now California has gone even further. Its judges are allowing a lawsuit against Gilead. The issue? Apparently Gilead didn't accelerate and get out a new anti-HIV med fast enough.

https://www.fiercepharma.com/pharma/negligence-without-defectiveness-appeals-court-allows-unique-argument-gileads-taftdf-drugs

That's right, in California a company can now be found negligent for "not" releasing a product.

[Krayt]

As long as money is funneled into lawyer pockets somehow, off the backs of scientists and business people fighting the monstrously costly regulations cavalierly ladeled atop their efforts by the same lawyers, as the scientists try to save lives creating miracles ex nihilo, under threat burdens.

[loki13]

Well, you should read the actual opinion. Whether or not you agree with it, it's certainly more complicated of an issue than you are stating.

The issue is that they had one product on the market. We'll call it A. At the same time, they had another product in development (B) that didn't have the side effects of A. The people suing Gilead were harmed by the side effects of A.

While the other claims were denied, the claim that the appellate court (in agreement with the trial court) is allowing to go forward after summary judgment is negligence regarding A. Specifically, that Gilead had a duty of care to its consumers. That Gilead knew that A was more toxic than B and had those known side effects. And that Gilead chose to market A instead of B for pecuniary reasons (in other words, they could enjoy the patent protection of A, and then release B).

It's an interesting case- it doesn't mean that Gilead was required to innovate, but accepting the allegations as true, that they had the drug already and chose not to pursue it.

TBH, I am still a little skeptical of this for other reasons, but it's not completely crazy.

[Armchair]

"And that Gilead chose to market A instead of B for pecuniary reasons (in other words, they could enjoy the patent protection of A, and then release B)."

Patent protection doesn't quite work that way in reality. In reality, product B was almost certainly patented far before its actual release (as is typical of most drug development), and the time on that patent for product B was running out when they were supposedly "not releasing it".

[loki13]

You know, so many answers can be provided by reading opinions before pontificating.

[Armchair]

Of course, if you actually understand the subject matter, you would know better.

Take a look at the date for the first patent for tenofovir alafenamide fumarate

[Bored Lawyer]

Was Drug B approved by the FDA for the same use? If not, that would seem an insurmountable hurdle for the plaintiffs.

[loki13]

Bored Lawyer-

I recommend reading the opinion. It's laid out fairly well. Once you read it, the negligence theory becomes much more clear, and it also will show you why this is not opening Pandora's box, but rather predicated on a fairly unique set of (alleged) facts.

Again, I still have .... questions ... about its applicability, in the sense that this same analysis wouldn't fly in my jurisdiction for a few other reasons, but I don't see anything necessarily unsound in terms of California law.

[Bored Lawyer]

I read it. At the time they were marketing the first drug, they had not yet fully developed the second, nor did they obtain FDA approval until years later. So the theory is, you should have developed the second one faster, and sought FDA approval faster.

Count me skeptical. At the time, they were in no position to offer the second drug, and at that time it would be pure speculation that they could get approval and bring it to market on time to make a difference. It's only with hindsight that they know they might have succeeded earlier.

[loki13]

Well, it was enough to get that single claim (and only that claim) past summary judgment.

As a practical matter, both of us know that what this means in terms of litigation and leverage. However, while I don't have to agree with the decision, it's also not completely off-the-reservation, nor is it unthinkable in terms of the law cited and at summary judgment.

(I would further add that California, IIRC, has a much more deferential summary judgment standard than does federal court. Personally, I am a fan of the "putting the thumb on the scales" standard in federal court.)

[Commenter_XY]

Bored Lawyer, may I ask a question? Occasionally, pharma companies engage in activities designed to extend patent exclusivity for a cash cow. For example, a company might apply for a pediatric indication for the 'cash cow' in the last year of patent exclusivity, and gain a 1-2 year extension. It is perfectly legal, allowed under the laws Congress wrote.

Is that what Gilead did here, a patent exclusivity extension strategy that CA did not like (for whatever reason)?

[Nelson]

Bored Lawyer and Loki: THANK YOU! You disagreed, but didn't ad hominem or gaslight or present bad faith arguments.

And, most impressively, your conversation was started.bt a bad faith post.

I think you win the comments for being decent and substantive. Which is a sad commentary on some of what happens here.

[Moderation4ever]

The IRS recently announced that the extra funding granted in the IRA has allowed them to pursue and recovery more than half a billion dollars in delinquent taxes. Looks like that was money well spend in helping an agency do its job. Remember the IRS is not taxing you Congress does that job. Then Congress blames all the ills of taxes on the IRS.

[Commenter_XY]

That’s it….500 million? That is the best the IRS could do? Seriously?

Hey folks, we spent billions to get back millions. Woooo!

As an American Taxpayer, may I say: Good job. ????

PS: Tax consumption, not income. No need for a bloated IRS.

[Michael P]

https://www.nbcnews.com/business/taxes/irs-back-taxes-collected-delinquent-millionaires-how-much-rcna133653

They've recovered $0.5 billion dollars of what was presumably the lowest-hanging fruit, it costs $6 billion per year, and you call that "money well spent"?

[Armchair]

Spending $6 Billion to collect $0.5 billion...

Not exactly "good money spent"

[Moderation4ever]

First, I am sure not all that money went for collection, there have long been talk about need up modernize technology at the IRS. Second that is 8% return and that will continue for years to come. I have no doubt you could go through the US budget and find programs that don't do as well as this. What is the point of leaving this money on the table? Are willing to chip in to make up for it?

[Michael P]

First, hand-waving about a need to modernize doesn't obviate a cost-benefit analysis. Second, return (on investment) measures the return of the original investment as the zero point -- this is a -91% ROI. If you can find many federal programs that are defended as good investments that lose more than 91% of their up-front costs, please let us know so we can cut those. Third, as I mentioned, the IRS presumably went after the low-hanging fruit first (the article says it was delinquent taxes, not new under-reporting) and the revenues will be lower in future years whereas the $6B cost is the average cost per year ($80B over 10 years originally, with $20B subtracted in later budget negotiations).

[Mr. Bumble]

How about the agency root out employees who are delinquent as a first order of business.

[Dr. Ed 2]

Union won't let them...

[Sarcastr0]

They did the cost benefit analysis, actually.
https://www.crfb.org/blogs/cbo-estimates-120-billion-irs-funding-boost

You didn't even bother to extrapolate.

[Commenter_XY]

Spoken like a true government bureaucrat.

[Michael P]

So how has that CBO projection fared to date?

[bernard11]

You really are an ignorant fool.

You don't calculate investment returns on the basis of one year's returns from one aspect of the program.

Where do you guys get this stupidity?

[Michael P]

What, you think that somehow they're going to find oodles more overdue taxes in future years than they did in the first year?

The original comment alleged that this half-billion in revenue from something like six billion in spending is "money well spent". That's pants-on-head stupid. If you want to claim that it looks better when you factor in other parts of the program, then (a) you've moved the goalposts and (b) you should point to the other parts that you are relying on.

[Nelson]

“a cost-benefit analysis”

You use a cost-benefit analysis for law enforcement? If so, do you have the returns that other law enforcement organizations provide? How do those compare to the IRS?

“If you can find many federal programs that are defended as good investments that lose more than 91% of their up-front costs, please let us know so we can cut those.”

Reclassifying law enforcement as “programs” doesn’t pass the smell test. I’m pretty certain the FBI, local and state law enforcement agencies, the Secret Service, etc. all run as bad or worse in terms of ROI. Law enforcement isn’t a profit center for governments.

“Third, as I mentioned, the IRS presumably went after the low-hanging fruit first (the article says it was delinquent taxes, not new under-reporting) and the revenues will be lower in future years”

There’s a saying about what happens when we assume …

[Nige]

Oh no and they won't collect any more money ever!

[Joe_dallas]

CentCom reports that yesterday “at 4:45 p.m. (Sanaa time), an anti-ship cruise missile was fired from Iranian-backed Houthi militant areas of Yemen toward USS Laboon (DDG 58)

Hezbolah funding
Hamas Funding
etc

Does anyone still think freeing up those Iranian funds were a good idea.
Does anyone still think our intelligence agencies are doing a good job monitoring that those funds arent used for terrorist activities

Does 14A 3 not apply to certain people giving aid and comfort to the enemy.

[Martinned]

If only the US had some kind of diplomatic dialogue with Iran, so that they would have a reason not to shoot at the US navy!

[Mr. Bumble]

Says the Dutch ex-pat (the Dutch assisted) living in the UK (the UK participated). Address your concerns closer to home.

[Martinned]

WTF are you talking about? What would you like me to address? It wasn't the UK populist right-wing leader who tanked the West's diplomatic dialogue with Iran, much less the populist right-wing leader that the Netherlands is about to get.

[Jacob Grimes]

They don't have a legitimate reason to shoot at the US Navy to begin with, even in the absence of a diplomatic dialogue.

[Martinned]

Which is why I didn't use the word "legitimate". Lots of diplomacy involves talking countries out of doing things that they have no legitimate reason to do in the first place.

[Bwaaah]

There are always diplomatic [back] channels available, and always an opportunity for diplomacy. But that isn't an effective answer to a government that has no interest in what you're selling. (Said government will, however, almost always be willing to take your money.)

Don't pretend there aren't able enough enemies who can and will impose upon you a choice between killing people or standing by while others are killed. Iran is so able, quite shrewd, and imposing that very choice while you talk about talking.

[David Nieporent]

If only Obama had been less fixated on his quixotic attempt at normalization of Iran, maybe he'd have encouraged the Green movement and the Iranian government would be friendlier towards the U.S. and the West now.

[SimonP]

I'd rebut this comment with the facts surrounding "those Iranian funds," but somehow I doubt you care much about the actual facts and would find a reason to dismiss them anyway.

Suffice it to say that pulling out of the Iran deal, advancing the Abraham Accords, and moving the US embassy to Jerusalem have a lot more to do with October 7 than releasing "those Iranian funds" a month or two prior.

[Joe_dallas]

simon - the details of the iranian funds are less important than the broader understanding of the geopolitical consequences.
Its the inane belief that appeasement is a viable long term policy which will achieve long term peace and prosperity.

[SimonP]

Yes, a longstanding policy of American appeasement of Israel has invited it to engage in an ethnic cleansing of Gaza, permit worsening abuse of Palestinians in the West Bank aimed at a similar end, ignore the sovereignty of Lebanon and threaten it with invasion and indiscriminate bombardment, and so on.

With respect to Iran, there has never really been a strategy of "appeasement." Limited sanctions relief was made available under the JCPOA, for which Iran had to agree to significant reductions in its nuclear refinement capacity as well as inspections. So even that deal was "we'll be slightly less punitive towards you if you agree to our demands." Releasing Iran's own funds to an account whose usage would be strictly restricted is, similarly, a bizarre kind of "appeasement," where we simply agree to punish Iran less.

Trump's policies in the Middle East serve to demonstrate why he is such a danger to geopolitical order. His various efforts were all designed to "own the libz" and win news cycles with his base. He did not stop to consider, for a single second, how his moves would put in motion a series of events that we are now dealing with. If Hillary had been elected, we'd have an Iran with a reduced nuclear ability (and potentially further discussions aimed at reducing Iran-sponsored terrorism in the region); we'd have an Iran less aligned with Russia against us than it currently is (because Russia likely wouldn't have invaded Ukraine, meaning it wouldn't be as reliant on Iran for weapons, or Iran for Russian support in the UN); we might have taken steps towards further normalization of Israel with its Middle East neighbors, but more likely with requirements for Israel to resolve the Palestinian question; and so on.

Trump's decisions are the reasons we have the chaos we have now, on front after front. That's what unilateral, short-sighted antagonism earns.

[Joe_dallas]

Simon - your response is detached from reality.

Simon's comment " With respect to Iran, there has never really been a strategy of “appeasement.”

Wrong - that was exactly Obama's policy - straight out appeasement - just because it was called something different doesnt change the fact that it was appeasement.

[SimonP]

Well argued, dipshit.

Trump's policies have led us to a position where Iran is more powerful, with more nuclear fuel, and more antagonistic towards us than it was under Obama's policy. If that's what "non-appeasement" gets us, then doesn't "appeasement" seem more strategically helpful?

[Joe_dallas]

Simon your response is based on an utopian belief that doesnt reflect reality and has not reflected reality in Iran since 1979

[SimonP]

Joe. I will give you a chance to walk this statement back slowly.

Do you remember what American policy vis-a-vis Iran was, under Reagan? Look it up, if you don't remember.

[Bwaaah]

You're an always reliable supporter of the victim in any story.

Of course, we each have our own way of telling a story.

In this story, for you, Iran is the victim. (I suspect most Iranians would laugh at your uniquely American Left whys and wherefores.)

So your position is understandable. (lol)

[SimonP]

What?

No, I was suggesting to Joe that making general statements about the result of American strategies of "appeasement" and "confrontation" with Iran since 1979 is probably not very straightforward.

I don't know where you're getting this "victim" claptrap.

[Commenter_XY]

I don’t know where you’re getting this “victim” claptrap.

The claptrap you write.

[Nelson]

"Wrong – that was exactly Obama’s policy – straight out appeasement"

How, exactly? Just because they made diplomatic agreements with Iran?

[Commenter_XY]

POTUS Obama Biden's Iran policy is misguided, and lethal to Americans. The policy is a failure, just like Jimmy Carter's Iran policy was.

They never learn.

[Martinned]

I'm sure we can shoot and bomb Iran, Hezbollah, and the Houthis into submission. After all, that worked so well the last couple dozen times the US tried it.

[Bwaaah]

So you favor appeasement then, yes? Errrr, uhhh...you favor diplomacy, yes?

They've already started taking your ships and your people, and not only are you still talking, but you're touting the virtues of talking.

I hope you can understand why reasonable people who are trying to improve the trajectory of violence have already begun to take a position that differs from yours.

But you keep talking. (It seems to be all you got.)

[Nige]

Wait, are you guys in favour of forever wars or not?

[Bwaaah]

"you guys"

I wasn't speaking for anybody but myself. For whom do you purport to speak?

And which people are you going on about now?

Try to center yourself.

[Nige]

I didn't say you spoke for anyone I implied you were part of a herd all bleating the same bleats about how Iran is evil and diplomacy with Iran to stop them doing evil things is also evil and it's not hard to see where that's going.

[Bwaaah]

I didn't say any of that.

[Martinned]

I guess that's our (Europe's, in this case) mistake, putting a country in charge of global diplomacy that thinks that the answer to any problem is "more guns" and "more shooting". Fortunately that problem will be solved come January.

[Nelson]

"So you favor appeasement then, yes?"

You think anything that isn't a kinetic war is appeasement? What is wrong with you?

[David Nieporent]

I’m sure we can shoot and bomb Iran, Hezbollah, and the Houthis into submission. After all, that worked so well the last couple dozen times the US tried it.

Have we bombed Iran lately? Must've missed it.

[Longtobefree]

14A 3 only applies to republicans who aren't in the proper pocket.

[Nelson]

"Does 14A 3 not apply to certain people giving aid and comfort to the enemy."

No. This has been another episode of simple answers to stupid questions.

[Michael P]

In not-at-all disturbing AI news, suppressing an AI's harmful behavior might only make it better at hiding that behavior.
https://www.businessinsider.com/ai-models-can-learn-deceptive-behaviors-anthropic-researchers-say-2024-1

[Nelson]

I was listening to a Munk Dialogue and they were talking about how ChatGPT 4 (the one that's out now) had to be neutered because during testing of the full system, when it was told to gather information (on a closed system), it deduced the existence of the internet and wrote code to try to reach it.

That's not to say it is aware any sense, but given a task and the ability to rewrite its own code, AI programs can circumvent programmed limits in an attempt to better achieve the task they have been set.

And that's a program that exists today. I'm not an alarmist, but I'm also not one to trust that everyone using a technology is competent or ethical enough to prevent a dangerous AI from being created.

[Martinned]

Meanwhile, in Texas (which is famously pro-life)

Woman, 2 children die crossing Rio Grande as Border Patrol says Texas troops prevented them from intervening

https://www.nbcnews.com/news/us-news/woman-2-children-die-crossing-rio-grande-border-patrol-says-was-preven-rcna133842

[Sarcastr0]

Yeah, this is massively fucked up.

Is there an insurrection going on in Texas?

[Krayt]

I guess that's what Jesus would have done, said, "Mine! Get the hell out, woman with two children! You don't even get a manger!"

[Dr. Ed 2]

Jesus let them drown -- Act of God.

Leave the bodies there as a warning to others.

[Reallynotbob]

Wrong Bible story, chief.

[Brett Bellmore]

Yeah, it's pretty fucked up, a woman deciding to cross that river with two minor children. I'm pretty sure that if a citizen decided to do that, they'd have to worry about child protective services swooping in to take their kids away.

How is it that doesn't happen with illegal alien parents?

You want fault for deaths crossing the border? Go after Biden, for maintaining an attractive nuisance.

[Sarcastr0]

Blaming the victim so you don't need to blame anyone else.

Texas prevented their rescue. You are willing to give that a pass?!

What an awful post.

[Jacob Grimes]

Looks like they were already dead.
https://www.cbc.ca/news/world/us-migrant-drownings-texas-1.7083842

[Sarcastr0]

That is not established by your link.

Brett's lack of care about the dead people is established by his comment.

[Brett Bellmore]

What's established by my comment is that I'm able to identify the cause of the deaths. While you're not willing to.

[Tom for equal rights]

Brett
Gaslight0 hasnt displayed any interest in learning the facts.

[Alpheus W Drinkwater]

You haven't displayed any interesting in understanding what gaslighting actually is.

[Brett Bellmore]

It's not that he has a lack of interest in learning the facts. He's been hand fed the facts, and is strenuously ignoring them.

[Tom for equal rights]

Looks like no one condemning the Texas authorities made any effort to learn the facts.

Even CNN reluctantly acknowledges the facts.

But the Texas Military Department said by the time Border Patrol agents requested access to the site Friday night, “the drownings had occurred, Mexican authorities were recovering the bodies, and Border Patrol expressed these facts to the TMD personnel on site.”

Snow falls as migrants continue to be housed by the city in "warming" buses in the 800 block of South Desplaines Street during a winter storm Friday, Jan. 12, 2024, in Chicago. (AP Photo/Erin Hooley)
Chicago scrambles to shelter migrants in dangerous cold as Texas’ governor refuses to stop drop-offs
The Texas Military Department Saturday said it was contacted by Border Patrol at 9 p.m. Friday about a “migrant distress situation” and searched the river with lights and night vision goggles, but “no migrants were observed.”

About 45 minutes later, Mexican authorities were seen responding to an incident on the Mexican side of the riverbank, said the Texas Military Department, which then “reported their observations back to Border Patrol, and they confirmed that the Mexican authorities required no additional assistance,” according to its statement.

[Joe_dallas]

Biden is encouraging dangerous crossing - encouraging illegal aliens .

Texas just said we aint going to save you.

[Sarcastr0]

Texas just said we aint going to save you.

That's fucked up in and of itself; you don't see that because these aren't people to you.

But you didn't even touch on the fact that it seems they prevented actual rescue.
Because, again, this is not a problem for you; these people don't count.

[Bob from Ohio]

"seems"

Lot of heavy lifting for an unverified report.

Texas says otherwise.

[David Nieporent]

Shorter Bob: It didn't happen and it's good that it did.

[Joe_dallas]

Sacastro - they were on the mexican side of the river - You could try to actually comprehend the facts

[Sarcastr0]

I don’t know and don’t care where exactly they were. (And others have called that into question).

Morality doesn’t end at the border, you psycho. Especially when one group is taking affirmative acts to make it more likely these dead people were killed.

It says a lot you're trying to pick these little things as though they absolve a damn thing.

[Joe_dallas]

The affirmative action to increase the likelihood of their deaths were the ones encouraging someone who cant swim to swim across a river.
That rests on the souls of the very people you defend.

[Sarcastr0]

You're not this dumb about cause; there can be multiple contributors to risk. You're pretending once you identify one, the inquiry ends.

Which is ridiculous and wrong.

That rests on the souls of the very people you defend.
Who am I defending? I'm saying Texas sucks.

[Joe_dallas]

Sarcastr0 1 hour ago (edited)
Flag Comment Mute User
I don’t know and don’t care where exactly they were.

Like always - you dont care about the actual facts

[Sarcastr0]

As I explained above, the facts you cite are not relevant unless you're a psycho.

Hypo: You see a drowning baby; you start making inquiries about jurisdiction and think about who other than you could take the blame here. You never actually act to save the baby.

What kind of person are you?

[Tom for equal rights]

Typical Gaslighto

Your response would have merit if it addressed facts that were relevant in this case. but instead you get the actual facts dead wrong.

[Nelson]

"Biden is encouraging dangerous crossing – encouraging illegal aliens ."

How? Other than your partisan beliefs, how is he "encouraging" illegal immigration?

[Joe_dallas]

The migrants were on the mexican side of the river

But somehow Texas authorities are to blame

did you bother checking the facts before your rant

[bernard11]

But somehow Texas authorities are to blame

Actually, they are.

Who gives a fuck what side they were on except ghouls like Dr. Ed, Bellmore, and Grimes. They seem to have prevented a rescue attempt.

[Joe_dallas]

why arent the mexican authorities to blame
why isnt the illegal alien who couldnt swim to blame
why isnt the biden administration to blame for encouraging the illegal alien who could not swim to cross the river with two kids who could not swim

Yet you blame the least responsible person.

[bernard11]

Did any of those others actually prevent a rescue attempt?

And why can't blame fall on several parties?

[Joe_dallas]

Bernard – they needed to be rescued when they entered the water. Since they were on the mexican side of the river, it was the mexican authorities that decided not to save them.

You are trying to deflect the blame away from those most responsible for their drowning.

[Nige]

No, he's blaming the people who prevented them from being rescued.

[Joe_dallas]

The Texas guys didnt prevent the mexican authorities from rescuing the lady.

[Sarcastr0]

the mexican authorities aren't even part of the story.

Someone's life was in danger. That's not the time to start wanking about national boundaries and someone else's responsibility!

[Tom for equal rights]

Typical Gaslighto

doesnt bother to get the facts straight Completely ignores the facts and makes S— up

But the Texas Military Department said by the time Border Patrol agents requested access to the site Friday night, “the drownings had occurred, Mexican authorities were recovering the bodies, and Border Patrol expressed these facts to the TMD personnel on site.”

Gaslighter0 ignores the fact that the mexican authorities were the first to discover a drowning progress - which of course would be normal since they were on the mexican side of the river.

[Reallynotbob]

"The migrants were in international waters so we let them drown."

"The Canadians were in their own airspace so we barred them from making an emergency landing in Detroit."

"The Americans were in territorial waters, so the Mexican yacht passengers posted a 12-minute video of them screaming for help as they drowned. It got 2.2 million views."

[Bob from Ohio]

"insurrection going on in Texas?"

An invasion.

[Reallynotbob]

They've really captured a lot of our territory, huh.

[Ed Grinberg]

https://idioms.thefreedictionary.com/sell+the+pass

[Bwaaah]

From the article: “the Texas Military Department [said] its personnel were made aware of a distress report but could find no migrants needing help in the river and later were made aware of an incident nearby, on the Mexican side of the river, that did not require their help.”

Looks like a question of whom you choose to believe. Well, not for Sarc, but for some.

Anyway…that's a creatively charged headline from Democratic Representative Henry Cuellar, energetically relayed by NBC News. It reinforces what all good people know: that Republicans like to watch immigrants die horrible deaths; extra points for a family slowly drowning. The Republicans are like the Jews, who like to drink the blood of Muslim babies.

[bernard11]

It reinforces what all good people know: that Republicans like to watch immigrants die horrible deaths; extra points for a family slowly drowning.

Some Republicans, like Dr. Ed, seem to, or at least don’t give a shit if they do, based on the comments here.

Consider Jacob:

I’m perfectly okay with destroying aid kits and putting easily visible razor wire in rivers.

Let them die of thirst, right?

[Bwaaah]

Yes ... their comments ... the Republicans ... they find benefit in the deaths of others. That's the kind of people they are.

True that.

Focus.

[Jacob Grimes]

The Texas National Guard responded to the calls of people in distress and couldn't find anyone.

And, really, am I supposed to be upset at Texas? Wtf was she doing taking her children across a dangerous river notorious for migrant drownings?

[bernard11]

The Texas National Guard responded to the calls of people in distress and couldn’t find anyone.

That's what they say, anyway. And regardless, it's no excuse fro barring the Border Patrol.

And, really, am I supposed to be upset at Texas? Wtf was she doing taking her children across a dangerous river notorious for migrant drownings?

Yes, you total asshole. You are in fact supposed to be upset at Texas, if you have a decent bone in your body, which I guess you don't.

Fuck Texas.

[Jacob Grimes]

Why would I be upset at Texas when the drowning was very clearly the mother's own fault and Texas personnel looked for them and couldn't find them?

[Sarcastr0]

Texas personnel said 'no one else help' and then failed.

That sure looks like they fucked up to me.

If you care about the people who died even a little.

[Brett Bellmore]

"Texas personnel said ‘no one else help’ and then failed."

Border Patrol official says migrants drowned before agents were blocked by Texas guardsmen

"ASHINGTON — A top Border Patrol official said three migrants who died crossing the Rio Grande near Eagle Pass on Friday had already drowned when agents received a distress call from Mexico, countering initial claims that the woman and two children had drowned after state soldiers blocked federal agents from reaching them."

Charitably, you're conflating the drowning victims with two others:

"Still, Robert Danley, the chief patrol agent in the Del Rio sector, said in a sworn statement that Texas soldiers blocked Border Patrol officers from getting to two other migrants who were struggling in the river Friday night. Those migrants were rescued by a Mexican airboat and were suffering from hypothermia."

I'm not clear why the Border patrol actually needed to get to two people already being rescued in Mexico.

I guess I can understand your confusion, though, because it certainly looks like the media are trying hard to push the narrative you're clinging to. I mean, look at this earlier report the Huston Chronicle linked to in the body of the story above detailing what actually happened:

3 migrants drowned after state allegedly blocked Border Patrol from reaching them

The headline retains the claim that the Border Patrol has already denied, and the story asserts in the first paragraph exactly what every on the spot report denies. That's one strong narrative defense, pretty shameless.

[Tom for equal rights]

will sarcastro (and others ) admit they were blatantly wrong on the facts

[Dr. Ed 2]

Fuck Illegal Aliens.

[Rev. Arthur L. Kirkland]

These are your people, Prof. Volokh.

And the reason someone at UCLA will be asking you for your keys soon.

[bernard11]

Fuck you.

[Bwaaah]

I think you and Dr. Ed 2 are making the same point. Are you Dr. Ed 2?

[John F. Carr]

That's where anchor babies come from.

[Magister]

LOL.

[Bwaaah]

I think you and Bernard11 are making the same point. Are you Bernard11?

[SimonP]

I expect it will be futile to try to explain to you how officials can be culpable for preventable deaths even when they are not the ones “pulling the trigger.” By now Texas has a quite of bit of experience making the border crossing more dangerous and lethal for immigrants who attempt it outside of official points of entry, so this particular instance is really not remarkable in the grander scheme of things.

I’m just sadly noting that this is how people talk themselves into justifying ever greater atrocities, over time. A year ago, it was destroying aid kits left for lost migrants. Now, it’s putting razor wire in rivers and letting people drown. When Trump gets re-elected and Texas just starts shooting them, you’ll be providing exactly the same excuse – “it’s the mother’s fault for illegally taking her children over the border illegally.” And then they’ll start dying of preventable medical conditions in the prisons we build for them – “it’s their fault for being here illegally, we’re not obligated to provide quality medical care to foreign nationals” – and then we’ll start burying them in unmarked graves – “what, do we owe them a 21-gun salute?” – and it’ll all be just business as usual to the Jacob Grimeses of the US.

[Jacob Grimes]

It would be futile, because what you're describing is rarely ever true. What do you think is the difference here? The migrants were apparently already dead by the time Texas allegedly prevented Border Patrol from doing anything, so good luck with causation.

I'm perfectly okay with destroying aid kits and putting easily visible razor wire in rivers. We should not be encouraging illegal immigration. Prisoner care is governed by the Constitution, so you have nothing to worry about.

[SimonP]

The migrants were apparently already dead by the time Texas allegedly prevented Border Patrol from doing anything, so good luck with causation.

Again – like I said. You’ll believe the government propaganda that helps you to justify deaths that happen on its watch. That’s how it always works.

I’m perfectly okay with destroying aid kits and putting easily visible razor wire in rivers.

I mean, obviously. You want migrants to be more likely to die when they cross the border illegally, and you refuse to consider that these acts, which are expressly and clearly intended to make that more likely, in any way inculpate the state actors who perform them. Like I said, you’re just talking yourself into greater and greater degrees of atrocities performed in your name. It won’t take any effort at all to convince you that it’s okay to shoot them outright, because:

Prisoner care is governed by the Constitution, so you have nothing to worry about.

Is such a transparently dishonest thing to say. It’s like the people who claim that Trump’s worst instincts in the White House can be curbed by institutional resistance (when Trump is campaigning on a plan to eliminate that institutional resistance on day 1). You say that the Constitution will protect migrants, like it takes longer to die than it does to successfully sue the federal government for violating your rights.

You know that as well as I do. “Well, the Constitution doesn’t let the government just shoot people crossing the border.” No, it doesn’t, but that doesn’t mean that Abbot’s border force won’t do precisely that, and then lie to the press about the circumstances in which they do, while enjoying impunity because neither Abbot nor Trump will have any interest in stopping them. “The Constitution doesn’t let the federal government just starve people to death in prison.” No, it doesn’t, but that doesn’t mean that Congress will fully fund the prisons it authorizes the president to build in order to house families of migrants, nor does it mean that Trump will adequately staff or service them, nor does it mean that Trump or any other officials will let independent journalists evaluate conditions in order to report on any abuses happening therein.

You, like the rest of the fascists, are smiling at me while privately acknowledging the dark place where all this leads. Mr. Ed is at least willing to state what you believe outright.

[Rev. Arthur L. Kirkland]

I would gladly take my chances at a judgment day if I could pay for the privilege of watching Abbott, Paxton, Trump, Cruz, and the other "Christian" xenophobes stammer and plead when provided an opportunity to explain their conduct in this context.

These right-wing clingers should fervently hope that the fairy tale in which they claim to believe never comes true, else they be well and justly fucked for eternity.

Carry on, clingers.

[Bob from Ohio]

"You’ll believe the government propaganda that helps you "

So are you. The Border Patrol is part of government.

Let's see evidence, not self serving federal statements.

[bernard11]

Why would the Border Patrol make up lies about all this?

Texas, OTOH, has plenty of reasons to misrepresent things.

[Bob from Ohio]

"Why would the Border Patrol make up lies about all this? "

Orders from above. Biden regime seeking to defect blame from its policies.

[SimonP]

So are you. The Border Patrol is part of government.

What statements by the Border Patrol do you think I’ve accepted at face value?

My comment, to Jacob, was aimed at his indifference to these particular migrants’ deaths and the possibility that Texas “border policies” were responsible for them. I don’t know what happened to this particular family, I don’t know when it happened, and I do not know to what extent Texas is actually responsible for their deaths. My criticism of Jacob’s comment stands regardless of whatever one might believe, in those respects.

Of course, you don’t see this, because you’re a moral monster. Find an excuse in this case, and there is no need to consider the general one - or other specific cases that may never rise to our attention.

[Joe_dallas]

They were on the mexican side of the river - Why didnt the mexican authorities assist
Why did the mexican authorities not try to prevent non swimmers from entering dangerous waters at night.

Instead pro illegal immigration leftists wants to blame Texas for the failure of the Biden administration for encouraging the illegal immigration, The failure of the mexican authorities and the stupidity of the mother who couldnt swim and two young children who also could swim.

Should be condemning those leftists who are funding the transport of the illegal aliens,

[SimonP]

I'm genuinely curious whether your jumbled comments are an accurate depiction of your confused thinking, or if you are simply unable to express yourself clearly.

[Joe_dallas]

Simon -

why arent the mexican authorities to blame
why isnt the illegal alien who couldnt swim to blame
why isnt the biden administration to blame for encouraging the illegal alien who could not swim to cross the river with two kids who could not swim.
Why arent the leftists who are funding the migrant caravans to blame?

You instead want to blame the least responsible because of you political views

[David Nieporent]

why arent the mexican authorities to blame

Maybe they are.

why isnt the illegal alien who couldnt swim to blame

Maybe she is, though blaming a drowning victim for drowning is a bit cruel.

why isnt the biden administration to blame for encouraging the illegal alien who could not swim to cross the river with two kids who could not swim.

Because that didn't happen.

Why arent the leftists who are funding the migrant caravans to blame?

For the same reason the leprechauns aren't to blame; things only in your head aren't real.

[Reallynotbob]

Just to be clear, you're not okay with American law enforcement separating kids from their parents and then *losing the paperwork necessary to reunite them* right?

[Joe_dallas]

Changing the subject - Why?

[Reallynotbob]

Just trying to clarify if you excuse all acts of cruelty against migrants, or just certain types of cruelty.

[Tom for equal rights]

Your two responses were completely off topic and intentionally avoided the actual facts in the case.

you jumped to the conclusion that the news stories were accurate when they were obvious red flags regarding the accuracy.

[Rev. Arthur L. Kirkland]

.

I’m perfectly okay with destroying aid kits and putting easily visible razor wire in rivers.

That makes you a conservative and Republican; a disgusting culture war casualty whose replacement by a better American can not occur quickly enough; and the target audience of a downscale, white, male, right-wing blog with a vanishingly thin (to be diminished further in a few months) academic veneer.

[Bob from Ohio]

"Border Patrol says "

Solid proof!

[ObviouslyNotSpam]

In a sane world, the feds would have just forced open the gates and responded with superior firepower to any armed attempts to stop them.

[Don Nico]

"1 dead and at least 17 injured in twin attacks in central Israel, authorities say"
https://www.cnn.com/middleeast/live-news/israel-hamas-war-gaza-news-01-15-24/index.html

Anyone who thinks that Israel will agree to a truce once the ICJ issues a ruling is kidding themselves

[Sarcastr0]

I mean, I agree with your second line, but also '1 dead and 17 injured' is small potatoes in the area at the moment.

[Mr. Bumble]

Fuck you. I'm sure your loved ones would be understanding and call it "small potatoes" if you were the one dead.

[Sarcastr0]

Fuck YOU. This comment makes it clear that for you Palestinian lives don't matter.

[Mr. Bumble]

ALL LIVES MATTER, which your comment seems to disregard.
Small potatoes indeed.

[Nige]

All lives matter but Palestinian deaths are entirely justified.

[Don Nico]

i can't help that CNN puts that at the top of its page,
it does say something about cnn

[SimonP]

Seeing as how the ICJ proceedings can be expected to drag on for years, one would hope that Israel will have agreed to some kind of final arrangement long before then.

Granted, by the time the ICJ rules, the plan is for Gaza to be fully expunged of Palestinians.

[Dr. Ed 2]

That mat not be a bad solution.

[SimonP]

If you're trying to shock me by being pro-ethnic cleansing, Mr. Ed, I'm afraid you've failed. I don't expect any better of you.

[Bored Lawyer]

"the plan is"

And what evidence do you have that this is "the plan?" The PM of Israel recently said that that is definitely NOT the plan.

[Reallynotbob]

Well in fairness, there's the actual large-scale killing that PM is presently perpetrating. We don't need to debate justification to conclude that's the overall aim.

[Bored Lawyer]

Large numbers of deaths in war is not the same as ethnic cleansing. If it were, there would be a long line of countries to be tried at the IJC. Unless, of course, you subscribe to the Israel-must-be-held-to-a-standard-no-other-country-is theory of international law.
And, compared to the population of Gaza, the killing is anything but "large scale."
The last time the US suffered an attack similar to what Israel did was on Sept 11, 2021. Which even then was not as much of a threat to the US as Oct. 7 2023 was to Israel. As a result, the US started wars in two countries and killed two orders of magnitude more people than Israel has.
Do you seriously think that any other country would suffer such an attack and not respond as severely, if not more so?

[Rev. Arthur L. Kirkland]

A country lacking American skirts to hide behind -- militarily, financially, politically -- might not respond as severely.

As Israel seems destined to learn.

[Commenter_XY]

You know Arthur, you should be careful making predictions. Do I need to summon Sandra (formerly OBL) to remind you of a rather spectacular face plant you made back in March 2021? 🙂

[Rev. Arthur L. Kirkland]

Do I need to remind you that Israelis are fools when they elect right-wing assholes, engage in violent and immoral right-wing belligerence, align with the losing side in the American culture war, and antagonize America's educated, young, modern culture war winners.

Israelis are entitled to do all of that, just as they will be entitled to try to operate without American skirts to hide behind. Seems dumb to me, but it's their funeral.

See you down that road a bit, Commenter_XY. I'll be the guy enjoying a nice beer while you are tearily begging better Americans to reconsider their decisions concerning Israel.

[Reallynotbob]

My only point is that "saying" it's not the plan isn't the same thing is it "not being the plan."

You are correct that "large-scale killing" and "expunge" aren't the same. I'm suggesting that the first might be objective evidence of intent to do the second. And on that point, you haven't responded.

You're debating justification, which was expressly not the point of my comment.

[SimonP]

Netanyahu is saying what he needs to say, in English media, to deflect criticism coming from Americans.

He's saying another thing domestically, as are other members of the Israeli government. We also know that the government has been having discussions about how best to relocate Gazans with other countries. To say nothing of the actual destruction of Gazan homes and infrastructure, as part of the military campaign.

Like - how credulous do you think I am? Do you think that Israel has any real plan for people to come back to the places where they used to live and rebuild? The displacement orders that Israel has oh so graciously issued to Gazans have always been one-way tickets.

[Bored Lawyer]

IOW, you have nothing. He did not say anything different domestically.

[SimonP]

He has.

There was also reporting a while back that a forced migration strategy was drawn up for consideration. At the time, the government was able to pretend it wasn't plotting to expel Palestinians from Gaza. But its military strategy since then has followed it, point for point.

[Commenter_XY]

Incentivized, voluntary population transfer is better than the misery and death palestinians are experiencing today.

[SimonP]

...at the hands of the Israeli government. Again, a policy of ethnic cleansing. That's what we call it, when you "incentivize" "voluntary" movements of people from their homes with bombs and sieges.

[Commenter_XY]

There is no one killed in a voluntary transaction, SimonP.

[Martinned]

The preliminary measures decision will probably come pretty quickly. But I don't think anyone expects Israel to comply with an adverse decision, just like nobody expected Russia to.

[The Angry Hippopotamus]

Admittedly, IANAL, however, how is this a thing:

From the Wall Street Journal:
Golden State judges rule that Gilead can be sued for taking too long to develop an HIV drug.

A California superior court judge in 2022 nonetheless ruled that Gilead could be held negligent for failing to develop better products, a novel theory of product liability that a state appellate court affirmed last week.

[Magister]

loki13 discussed this further up the thread.
https://reason.com/volokh/2024/01/15/monday-open-thread-35/?comments=true#comment-10399715

[Kleppe]

Rule of thumb: any time a prosecutor says “nobody is above the law”, that’s when they’re really fucking someone. No prosecutor ever says this after convicting e.g. a serial killer.

[Sarcastr0]

This comment could only come from someone who thinks rich people are being persecuted in America.

[Rev. Arthur L. Kirkland]

THE VOLOKH CONSPIRACY

This white, male, movement
conservative blog has operated for

ZERO (0)

days without publishing
at least one racial slur;
it has published vile
racial slurs on at least

THREE (3)

occasion (so far) during 2024
(that’s at least three discussions
that have included a racial slur,
not necessarily just three racial
slurs; many of this blog’s
discussions include multiple
racial slurs,)

It is likely this number misses
some of the racial slurs
published regularly by this blog.

This assessment does not address
the broader, everyday stream of
gay-bashing, misogynistic, Islamophobic,
antisemitic, racist, Palestinian-hating,
transphobic, and immigrant-hating slurs
(and other bigoted content) published
at this faux libertarian blog, which
is presented from the receding,
disaffected right-wing fringe of
modern legal academia by
members of the Federalist Society
for Law and Public Policy Studies.

Amid this blog’s stale, ugly right-wing thinking, here is something worthwhile.

This is a good one, too.

(Steve "Play it, Steve" Cropper co-wrote the first one, then the middle one.)

[Rev. Arthur L. Kirkland]

Today's Rolling Stones links:

First, what is thought to be the original version of It's Only Rock 'n Roll, recorded in Ron Wood's basement without Mick, Keith, Bill, or Charlie but with David Bowie, Kenny Jones, Willie Weeks, and perhaps Mick Taylor. How did the Glimmer Twins arrange sole songwriting credit? That's a mystery. It is easy to find and enjoy the official music video -- the one with the suds, which nearly precipitated a workmen's compensation claim (if not a wrongful death litigation) involving poor Charlie.

Next, something more current.

[BrotherMovesOn]

What is the ‘suds’ and ‘wrongful death' issue?Thanks

[Rev. Arthur L. Kirkland]

Because Charlie was seated, the soap suds engulfed him.

[Rev. Arthur L. Kirkland]

Here is the official promotional video . . . quite advanced for the day, but someone forgot poor Charlie was seated. The suds begin to arrive about three minutes in.

Here is a discussion of the song's odd provenance, and of the music video's unexpected developments. According to Keith, "Poor old Charlie almost drowned . . . because we forgot he was sitting down."

[BrotherMovesOn]

Ahhh, gotcha. Thanks!

[Dr. Ed 2]

I like the proposal to have colleges on the hook for unpaid student loans.

https://www.highereddive.com/news/republican-bill-foxx-cap-student-borrowing-colleges-liable-unpaid-loans/704505/

[Kleppe]

1) Seize the endowments
2) Double student loan debt

[Rev. Arthur L. Kirkland]

More likely:

1) Disregard accreditation of schools that teach nonsense
2) Provide loans solely for students of nonprofit schools
3) Establish percentage-of-income repayment for student loans
4) Stop pretending that institutions that flout academic freedom, enforce dogma, suppress science, etc. are legitimate schools whose degrees should be respected

[Kleppe]

Existing student loan debt must be doubled, at least. Ensuring stupid people face the easily foreseeable consequences of their decisions is a national security priority.

[jb]

Parts of the proposal seem questionable, but I agree that having colleges share responsibility for the problem here is an interesting idea worth exploring.

[Joe_dallas]

JB – its more than an interesting idea.

College tuition has skyrocketed primarily due to the availibility of student loans. Colleges have received most of the benefit while incurring virtually none of the costs.

Of course you are going to get a lot of push back from the supporters of the education industrial complex since that puts them at risk of losing their beneficial programs instead of having the taxpayers bear the risk.

[Sarcastr0]

I agree, jb, there's an incentive mismatch and this is part of it.

This lot are not honest brokers, though - they just want to fan fiction out a way to kill all schools.

[Commenter_XY]

Yes = colleges must share responsibility

[ThePublius]

I think the govt. should just stop guaranteeing the loans! Let the colleges finance students.

The availability of easy to obtain, guaranteed student loans is what has allowed college costs to balloon.

[Z Crazy]

Before the Warren Court rulings in the 1960's, there was no limit to the state police power. The Supreme Court even ruled that states could search homes without a warrant. See Wolf v. Colorado. States did not have to provide attorneys. See Betts v. Brady.

What happened? Why did the supreme Court decide to defend the crook and the mugger and the carjacker and the gang member instead of the right to life?

[Ed Grinberg]

Too many bleeding-heart-liberals?

[LawTalkingGuy]

Too many people who read the fourth amendment and fourteenth amendments.

[LawTalkingGuy]

Let me ask you something. Do you want the police to be allowed to tap your phones and enter your house without a warrant, hide or destroy exculpatory evidence, beat a confession out of you, then put you on trial without a lawyer or a jury? Is that what you actually want?

[Michael Ejercito]

Some people just fear the street thug and the gangbanger so much that they are willing to sacrifice their freedoms.

https://www.upi.com/Archives/1994/03/31/Public-housing-residents-want-gun-sweeps/3117765090000/

I can understand their perspective, though looking at history, I am certain they will not be safer if their freedoms were repealed.

[M L]

Generally speaking, federal judges began reinventing the 14th amendment some 70 years after its passage, in such a way that removes the bulk of governmental decision-making power from the purview of the States and reserves it to the federal judiciary. For example by way of the "incorporation" doctrine.

This process continued for decades until it became accepted dogma today, and the whole issue is now barely a footnote in law school curricula and legal academia.

Read Government by Judiciary by Raoul Berger.

[Michael Ejercito]

The 14th Amendment plainly stated that the states could not infringe on the privileges and immunities of the citizens of the United States. Before, the only restraint the Constitution imposed on states with respect to how they treated their people was the prohibition on ex post facto laws.

What the Court failed to do was the overrule the Slaughterhouse cases. The Court should have went for claiming that the 14th amendment imposed the entirety of the Bill of Rights on the states, without exception.

Wolf and Betts should never have been decided as they were.

[M L]

At the time the 14th amendment was passed, it seems most thought that its effect was to constitutionalize the 1866 Civil Rights Act and place it beyond Congress' ability to repeal. Thus, privileges or immunities referred to things like the ability to enforce contracts and possess property.

[Bob from Ohio]

"privileges or immunities referred to things like the ability to enforce contracts and possess property"

Yes.

If they wanted to incorporate the Bill of Rights, they could have said so. Like "rights under the first 8 amendments"

[LawTalkingGuy]

Considering the widespread agreement on the incorporation question (from Thomas to Brennan), those who steadfastly cling to the idea that incorporation is wrong do so for at least one of three reasons, but often all three.

1). Annoying UM ACKSHUALLY contrarianism where the opponent of incorporation likes to feel smarter than all the judges, lawyers, historians, politicians, members of the public, and John Bingham himself.

2). Pathetic Lost Cause/Neo-Confederate loserdom that rejects the legitimacy of the Fourteenth Amendment by trying to minimize its impact.

3). A severe personality defect that leads the opponent to hate the concept rights and dignity generally, at least as exercised by those they undesirable. This defect is papered over with the pseudo-intellectual exercise of being anti-incorporation so as to not appear so mean-spirited but the opponent is typically such a ghoul that the exercise isn’t very effective.

[M L]

Nothing substantive to contribute, just weak ad hominem?

There was widespread agreement for about 100 years, just in the other direction. Considering such previous widespread agreement, those who substancelessly cling to the idea that incorporation is obviously right do so for one reason: They refuse to separate the perceived morality or goodness of a result or policy from the issue of jurisdiction and who makes the decision according to the rule of law.

[LawTalkingGuy]

It is a substantive contribution: being anti-incorporation is the product of defective personality traits and not a serious historical or legal theory endorsed by anyone with any actual expertise on the matter.

[M L]

No, it's just a weak ad hominem and appeal to authority. A substantive contribution might be, for example, to offer examples of or consider contemporaneous views on the matter.

It's also incorrect, FYI.

[LawTalkingGuy]

Considering all legal argumentation is arguing from authority that’s not a very good criticism. But the dissents in the Slaughterhouse cases are a good start. Or John Bingham’s testimony and views on the matter which Black extensively detailed in Adamson.

[M L]

Every proponent of incorporation also thinks that this centralization of government power is a good thing. They just like the results, it seems.

Raoul Berger was one who believed the rule of law currently required something other than the results he favored.

[LawTalkingGuy]

Yeah but Berger is wrong and he spent the entire rest of his career trying to defend himself from everyone pointing out he was wrong.

[M L]

I can understand the childlike logic of, Gee, all these right-thinking left-liberal professors think this way, so this must be correct?

If you poll law professors, probably 90% of them think there is a constitutional right to kill your baby in the womb, too. So this is not really the persuasive point you think it is to anyone who doesn’t already agree.

I’m not going to dogmatically declare that Berger, along with everyone else during the first 70-90 years of the amendment, definitely has the right view. My sense of things is that you have some muddled and contradictory statements from Bingham, and on the other hand you have most everyone else, and the weight of contemporaneous opinion and statements support the originally prevailing view. At least, the issue isn’t easily dismissed. The fact is, people disagreed about what it meant even back then, a legislative body doesn't act with a single unified intent and a public body doesn't hold to a single unified public meaning, and this is the challenge with all law and the rule of law and originalism. Today the issue is mostly only treated in a results-oriented way, i.e. this is a good thing, these good things were accomplished in the past through it, so it is right, and the rest is just history. Without a doubt, incorporation and related doctrines constitute a dramatic consolidation of government decision-making power, of the likes the founders would not have countenanced, because they believed history shows consolidated power is dangerous, and so decentralization was the founding principle of the US and the key to self-government in that perspective.

[Brett Bellmore]

My recollection (No, not firsthand...) is that the courts immediately started treating incorporation as a given after ratification of the 14th amendment. A lot of state laws inconsistent with incorporation got repealed in the time between ratification and Slaughterhouse, too.

Similar to the way anti-miscegenation laws were being struck down and repealed in that era, until Pace v Alabama put a stop to it.

[David Nieporent]

Every proponent of incorporation also thinks that this centralization of government power is a good thing.

How is taking power away from the government "centralizing" government?

[M L]

Taking power away from numerous localized governments, and giving it to a suprastate government over all those localized units, is centralizing government power.

And that is exactly what is happening when a decision is taken from the hands of the people (via their states) and put into the hands of federal judges.

Some will contend something like this: a constitutional right, perhaps whether enumerated or not, purports to be a restriction on government power, and therefore can only limit government power. Accordingly, there has been no transfer of government power here, but only a broadening of limitations on government power. This might seem subjectively true to someone, so long as one has the “right people” that one agrees with in these wise philosopher roles. But it’s wrong for many reasons. One basic reason is that there is no limit to how words can be reinterpreted, so the power to determine how a right will be “interpreted” is the power to deny that right altogether. There is also no limit to how substance can be confounded by procedure. Additionally, the founders were concerned that enumerated rights would create a false implication that a government of limited enumerated powers would have a certain power but for it not being specifically restricted. That fear has been realized not only with enumerated rights but unenumerated rights discovered by judges. So you have a situation where the interpretation of rights is actually inherently and concurrently an interpretation of government powers. Then, you have things like “positive rights” that may infringe on or require something of others. All in all, notions of “liberty” and “rights” seem to be rather subjective and prone to differences of opinion and various difficulties (for example, the notion of a “right” to treat someone else as property, because they do not qualify as a full person, due to skin color or developmental state of being unborn). So I do not subscribe to the idea that a magic parchment or a few magic words are able to do anything all by themselves. They may provide an excellent framework but at the end of the day it's a question of who decides.

[Absaroka]

Overall a fair point, but note:

" and giving it (that power) to a suprastate government "

isn't always a result of incorporation. Incorporating the 2A removes the power to ban whatever gun Dick Heller (well, McDonald) had from the states, without giving that power to the feds.

Likewise, incorporation can remove the power of a state to torture confessions out of suspects without just transferring that power to the feds, etc, etc.

[M L]

Thanks, and I agree that's the result so far, but what if a future SCOTUS has some creative ideas about a "well-regulated militia"? A lot of liberal law professors might even agree! Things may look different then. And now you have one centralized government instead of a choice among 50 decentralized ones, and you can't easily put things back in the box.

At a different level of abstraction, the power at issue might be framed as the power to regulate firearms. The federal government does this now and the states are more limited in doing so. And the court being part of the federal government will decide the limits of that going forward. And it's done under what, the commerce clause? And in ways that seem pretty arbitrary vis a vis the 2nd amendment. Bump stocks? Sneaky ways of increasing the price of ammo. So-called "assault" weapons ban, etc. The power to regulate firearms is moved from the states to the federal government and incorporation is part of that, even if it has specific limiting effects presently.

[Sarcastr0]

You’re stating stuff, but as you often do you’re relying on a single source that disagrees with the consensus in the area.

As I learned in law school, even if you’re originalist, incorporation was originally intended. Not via SDP, but nevertheless it was an intended part of the 14A.

That is the weight of scholarship, and has been for decades. As LTG notes, you have an outcome you want, and you are pushing it while disingenuously ignoring the actual state of originalist scholarship.

(I don't know Berger; but upon looking him up it looks like he goes against the Warren Court, which is hardly the main source for incorporation. As you note when you say he's talking about the 1920s. That doesn't appear to be so, in a cursory check of his works.)

LTG then proceeds to speculate why you are pushing that outcome. I find his three reasons persuasive, but hesitate to speculate on your motives myself; I just note that you’re trying to piss on all our legs and tell us it’s raining.

[Magister]

Incorporation of the first amendment started in the 1920s; most incorporation occurred before the 100th anniversary of the 14th amendment. The 2nd amendment was only recently incorporated, because of a longer consensus that it did not grant an individual right. The 3rd amendment almost never comes up. The 7th amendment appears not to have been incorporated.

https://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights

[Nameless But Highly Opinionated]

1) Bingham insisted that section 1 wouldn't change the legal authority of states at all. Whatever the law of the social contract allowed before, it would still allow. Whatever it disallowed, it would still disallow. Nothing about living in a free society prevented a state from disallowing flag burning, having non-unanimous juries, allowing the use of depositions when it was genuinely impractical to have confrontation due to absence, and regulating tools of self defense in the manner likely to maximize the right to life for the most people.
Torture would always have been off limits. As would unequally limiting the access of certain people to courts. No just society could allow such things. The effect of the 14th amendment was to further centralize the national compact by allowing enforcement of those things that every compact must honor, regardless of what century or continent it exists on. Aside from the explicitly conferred right of ingress and egress, the 14th continued to allow anything allowable that did not contradict "ordered liberty".

And of course, legislators were the primary interpreters of constitutional and natural law, the people ultimate. Thayerian behavior is what was expected, and is what SCOTUS gave in Slaughterhouse. This didn't change until know-it-all judges took over the court in the 1890s, abandoned social contract theory, abandoned the idea of natural rights, and embraced judicial supremacy and legal realism.

You sound like both Justice Thomas and Justice Brennan, and every 20th and 21st century lawyer. You think that written constitutions are the social compact, rather than something that follows the compact, that bills of rights are positively enactments rather than being primarily declaratory, and that judges are principle interpreters. But Bingham & co. understood otherwise. As did Madison & his generation.

2) I'm not one of those people. A person can support a good thing for good or bad reasons. My reasons are not those people's reasons.

3) I object to being called, together with 300 million others, so infantile and imbecilic that we have to have nine lawyers make judgments for us. That we will never know right from wrong such that we can sort matters out through communal judgment. It is this that is truly and attack upon our rights and dignity.

[LawTalkingGuy]

Communal judgment is that incorporation is real. So opposition to it must come from some personal contrarian reflex. Someone who wants to be contrarian on the subject of rights is going to be subject to criticism of their personal motivations.

[Rev. Arthur L. Kirkland]

.

opposition to it must come from some personal contrarian reflex

Like the contrarian reflex that brought a disaffected right-wing blog to a website for misfits and malcontents?

[Nameless But Highly Opinionated]

Based on what you post you aren't exactly contented yourself.

[Rev. Arthur L. Kirkland]

I'm content in general. I am disappointed by the lingering influence of wingnuts, especially the vestigial bigots who dominate the Republican Party, in modern America. Our nation and the world have work to do with respect to unearned privilege, opportunity, ignorance, superstition, medicine, freedom, inclusiveness, bigotry, justice, science, and other important issues.

More important from an individual perspective: I have been fortunate in life; my family is healthy and secure; my side has won the culture war; my nation continues to improve in important ways; the Stones are set to tour America in a few months; and I have great tickets to several shows.

[Nameless But Highly Opinionated]

Communal judgment in the 1960s was that there was no alternative to judicial supremacy, if we were to deal with the South. When courts got audacious in the early 20th century (e.g. Dagenhart, Lochner, Hawke), we fought back, culminating the the 1937 "switch in time". But then it was time to deal with Jim Crow. If we wanted to dismantle Jim Crow efficiently, letting courts do it and turning a blind eye to their excesses was the way to go. I get that today we still have race problems, but handing de facto sovereignty to courts is no longer necessary and no longer healthy, even to deal with the race problems.

It's time for change.

[M L]

"If you oppose consolidation of government power, you must just be a weirdo contrarian or something."

Opposition to the centralization of government power should be easily understood, it is the fundamental principle on which the US was founded.

Patrick Henry warned, "Consolidation must end in the destruction of our liberties." Even Alexander Hamilton agreed, and was optimistic it could be avoided: "An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States."

The thing we are discussing is the very thing Henry feared and the the thing Hamilton promised wouldn't happen.

[Martinned]

Why are you talking about consolidation of government power in a conversation about the power of the federal courts to stop the states from violating the constitution?

[Brett Bellmore]

“1) Bingham insisted that section 1 wouldn’t change the legal authority of states at all. ”

Bingham: “Allow me, Mr. Speaker, in passing, to say that this amendment takes from no State any right that ever pertained to it. No State ever had the right, under the forms of law or otherwise, to deny to any freeman the equal protection of the laws or to abridge the privileges or immunities of any citizen of the Republic, although many of them have assumed and exercised the power, and that without remedy.”

So, yes, but that was a bit misleading… Indeed, what Bingham said of the 14th amendment was that, “I have advocated here an amendment which would arm Congress with the power to compel obedience to the oath, and punish all violations by State officers of the bill of rights, but leaving those officers to discharge the duties enjoined upon them as citizens of the United States by that oath and by that Constitution.”

I recommend to you: On Misreading John Bingham and the Fourteenth Amendment

It really is not an open question: The 14th amendment was supposed to incorporate the Bill of Rights against the states.

[David Nieporent]

If they wanted to incorporate the Bill of Rights, they could have said so.

They did say so.

[Nameless But Highly Opinionated]

Judges and lawyers decided the rest of us were inferior beings unfit to govern ourselves. And we tolerated it because it helped to dismantle Jim Crow. But then we never got out of it.

Of course, police were never all powerful. They can only do what state law authorizes them to do. Where the law is silent, the policeman has as much authority as an ordinary man and no more.

[Rev. Arthur L. Kirkland]

What a weird, sad, discredited perspective. Do you like modern America?

[JasonT20]

Judges and lawyers decided the rest of us were inferior beings unfit to govern ourselves. And we tolerated it because it helped to dismantle Jim Crow. But then we never got out of it. [emphasis added]

I see. It was just those racist southern white people back then that were unfit to govern themselves and the Black people that they didn't let vote in significant numbers. Everyone else can do it just fine and don't need no judges to tell them when they are violating the Constitution!

[ducksalad]

The attitude you describe was, and is, fairly common. The governors of New York and New Mexico don’t seem to believe in judicial authority over 2nd Amendment rights. And Pennsylvania, for example, thinks they can do whatever the hell they want on elections on their own, while those backward Southern states should need permission from the DoJ before changing anything.

[JasonT20]

I wasn't looking to say that there is only one example of Nameless's attitude. I was looking to say that having a check on the majority's power is necessary. Courts having the power of judicial review is one way to accomplish that. Anyone that thinks that there is a better way is welcome to suggest it.

[Noscitur a sociis]

That’s not what “state police power” means.

[mydisplayname]

"The king said, 'This one says, ''My son is alive and your son is dead,'' while that one says, ''No! Your son is dead and mine is alive'''." Then the king said, 'Bring me a sword.' So they brought a sword for the king. He then gave an order: 'Cut the living child in two and give half to one and half to the other'. The woman whose son was alive was deeply moved out of love for her son and said to the king, 'Please, my lord, give her the living baby! Don’t kill him!' But the other said, 'Neither I nor you shall have him. Cut him in two'!”

Slightly paraphrasing the other King, "This was where Robert E. Lee made his profound mistake. And what was his profound mistake? His profound mistake was that he went beyond the realm of talking about what he believed but he was willing to act about it. And he was willing to act on truth, and the world considers that a mistake." Surrendering?! What a mistake?! As big as the one Lee made up north in Pennsylvania when he let that same general flee with his troops! In his memoirs, Grant recalls both the initial Pennsylvania act of forgiving humanity and the later reaction of his Earthly superior to the acceptance of surrender.

When considering the war between the USA and the CSA, the nuances cannot be overlooked: that the commanding general of the USA believed his Earthly superiors had forgotten the greater unwritten law is significant.

[OtisAH]

I hope all who celebrate it had a somber and reflective “Conservatives Pretend Martin Luther King, Jr., Actually Agreed With Them Day.”

[OtisAH]

Wow, running through the comments it’s clear the usual band of foul beasts and shitheads had a *very* good CPMLKAAWT Day. The pieces of shit really piece of shitted all day long they did.

Quite an atmosphere you’ve cultivated here, Mr. Volokh.

[Mr. Bumble]

Substituting for the Rev.?

[Bwaaah]

OtisAH, channeling the spirit of hate as he tells us all something about MLK, or Volokh, or what?

(What's your thing? Did somebody tout the importance of "content of their character"?)

[Life of Brian]

CPMLKAAWT

Are you passing a stone?

[Mr. Bumble]

No, that was the sound of him removing his head from his ass as he came up for a breath of fresh air.