Not that you'll understand any of this, but I'll give it a shot.
1. Judges don't make claims; they do make rulings. When someone talks about what a judge did or said, it is talk about a ruling, unless it's talk about rhetoric or style. The judge in this case made a ruling. I said that it wasn't as clear as it needed to be about what is or isn't permitted under the terms of the ruling. This is a common failing when judges get carried away either from high dudgeon or high-flown rhetoric and sacrifice the necessary precision. You and Jaybird seem to think that it was clear enough. It was certainly clear about some things. The judge isn't incompetent, after all. But I laid out a few areas where more clarity was needed. You may disagree, but I get paid to advise on just this sort of thing. You and Jaybird are free to set up shop and see who is willing to pay for your advice. I'll accept the verdict of the market.
2. Disparate Impact. You keep using that phrase. I do not think it means what you seem to think it means. Your response about something not being discrimination if they do it to everybody indicates that it is a phrase you picked up somewhere and don't understand. Here is the quick and dirty explanation, without footnotes. There are two kinds of discrimination cases: intentional discrimination cases and disparate impact discrimination cases. Some statutes permit both, though, significantly, not Section 1983, which would be the basis for subjecting UCLA officials to an injunction and, perhaps later, holding them liable.
Intentional discrimination is what it sounds like: No Irish need apply, no Jews on the quad, and so on. An act or rule that either explicitly discriminates against [fill in the blank] or can be proved to have been motivated by a desire to discriminate against [fill in the blank].
Disparate impact discrimination cases are different. In those cases, the plaintiff challenges a rule or policy that, on the face of it, is non-discriminatory, for example, a job requirement that the applicant be fluent in Finnish. The theory is that the rule, though not discriminatory on the face of it, disadvantages applicants who are [fill in the blank]. Sometimes, such rules are a not-so-clever way to disguise intentional discrimination, but that is a bonus. You don't need to prove that to win. But you don't win just because there is a disparate impact. First, the impact has to be significant. If it isn't, you lose -- unless you have proof of the "bonus," in which case it's really an intentional discrimination case. Second, the employer can defend the requirement, despite the disparate impact, if it can show that the requirement is based on legitimate business concerns. (Just how rigorous the showing and how tightly related the requirement is to the concerns will be where the experts earn their money, but the concept is clear enough.) Obviously, since few black people know Finnish, this language requirement has a disparate impact, and a significant one, on black applicants. If you're applying for a clerical job at the New York office of the Finnish National Oil Company, however, it might well be sufficiently related to the job to pass muster -- though maybe not if you're being hired as a security guard or janitor.
The campus protest case simply does not involve disparate impact discrimination at all. The protesters, it is alleged, are intentionally discriminating, not setting up some facially neutral, non-discriminatory rule that they might justify on some non-discriminatory ground. The campus administration, it is alleged, is not hiding behind some neutral rule either, but intentionally turning a blind eye to intentional discrimination, or, perhaps, even indulging in it itself.
Oh, and Scalia, the dead guy, has nothing to do with this. The judge is the very much alive Mark Scarsi, but I guess all these Italian names sound alike.
It's a big part of my day job to understand disparate impact. This isn't a disparate impact case at all; the alleged discrimination by the protesters is intentional and to the extent that the claim is the administration is aiding and abetting it, that, too, is intentional. And in actual disparate impact cases, small disparate impacts get you thrown out of court all the time. And judges don't make claims, they make rulings. Parties make claims.
Other than that, good work.
The initial and revised estimates were both public documents, widely publicized and circulated at the time. It would take special efforts to memory hole them, and wouldn't work if they were made.
Except that the revisions don't always make things look better.
And if you're talking about "independently of facts," that assumes there are facts that can be ascertained with useful accuracy. You need something more than an arched eyebrow to establish that the estimates that promote your narrative are better than the ones that don't.
You're obviously spoiling for a fight with someone about what should or shouldn't be permitted on the UCLA campus. You'll have to have that fight with someone else. I've already highlighted the many unanswered questions about the scope of the order.
Well, yes, there are certain things that the order is reasonably clear about, and which the campus administration could understand well enough to follow. Are you under the impression that anyone said anything else? If so, your argument is with them, and not with me.
"Weaponized skepticism." You use that phrase, but I do not think it means what you seem to think it means.
When a judge issues an order, enforceable by the contempt power, it must be clear about what it permits and what it forbids. There are some predictable issues that could easily arise on which the judge's order does not speak clearly. What comes off the top of your head is no substitute for clarity. There are ways to get it. If you want to play lawyer, don't commit malpractice.
That's all very interesting -- well, it's not, but I'm trying to be polite -- but whatever either of us personally thinks he sees, the question I raised is what the judge's order means, which only the judge can answer. If you want to talk about something else, that's your prerogative, and anyone interested in talking with you about whatever it is you do want to talk about can join in.
An excellent question, which is why I asked it. Since it is a question about what the judge's order means, the only person who can answer it is the judge. And he won't unless one of the parties seeks clarification. We'll just have to wait and see.
This is a college, not an elementary school, middle school, or high school. Whatever arguments might be made for protecting the delicate sensibilties of kids from material that their parents find offensive (kids, in my experience, aren't all that delicate), purging college libraries of such material is just plain silly.
No, it wasn't. Read it again. You're a lawyer and should be able to understand a discussion about technical problems with an injunction directed mainly at campus authorities rather than protesters.
The general principle is sound enough, but the devil is, as always, in the details. Acts that significantly impede the normal flow of campus traffic can and should be prevented, and the injunction clearly prohibits such things and clearly orders the school to take steps to prevent it. If Jewish students trying to get from Smith Hall to Jones Hall can't do it without a long, inconvenient detour, while non-Jewish students can pass right through, that is wrong. But if they can pass by without much inconvenience, is that a problem? Must they have unimpeded access to every square inch of the quad? What if they insist on standing right in the middle of an encampment that takes up only some of the quad without greatly inconveniencing others, and trying to shout down the protesters from within the encampment? Can protesters have spots on which they are allowed to protest while counter-protesters have different spots? It's not clear to me what the answers to these questions are from the terms of the injunction, and the most important aspect of any court order is that the parties know what they can and cannot do.
On “Open Mic for the week of 8/12/2024”
I accept that you don't understand. Indeed, you keep proving it. I see no value in repeating myself. Or in trying to make you understand.
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Not that you'll understand any of this, but I'll give it a shot.
1. Judges don't make claims; they do make rulings. When someone talks about what a judge did or said, it is talk about a ruling, unless it's talk about rhetoric or style. The judge in this case made a ruling. I said that it wasn't as clear as it needed to be about what is or isn't permitted under the terms of the ruling. This is a common failing when judges get carried away either from high dudgeon or high-flown rhetoric and sacrifice the necessary precision. You and Jaybird seem to think that it was clear enough. It was certainly clear about some things. The judge isn't incompetent, after all. But I laid out a few areas where more clarity was needed. You may disagree, but I get paid to advise on just this sort of thing. You and Jaybird are free to set up shop and see who is willing to pay for your advice. I'll accept the verdict of the market.
2. Disparate Impact. You keep using that phrase. I do not think it means what you seem to think it means. Your response about something not being discrimination if they do it to everybody indicates that it is a phrase you picked up somewhere and don't understand. Here is the quick and dirty explanation, without footnotes. There are two kinds of discrimination cases: intentional discrimination cases and disparate impact discrimination cases. Some statutes permit both, though, significantly, not Section 1983, which would be the basis for subjecting UCLA officials to an injunction and, perhaps later, holding them liable.
Intentional discrimination is what it sounds like: No Irish need apply, no Jews on the quad, and so on. An act or rule that either explicitly discriminates against [fill in the blank] or can be proved to have been motivated by a desire to discriminate against [fill in the blank].
Disparate impact discrimination cases are different. In those cases, the plaintiff challenges a rule or policy that, on the face of it, is non-discriminatory, for example, a job requirement that the applicant be fluent in Finnish. The theory is that the rule, though not discriminatory on the face of it, disadvantages applicants who are [fill in the blank]. Sometimes, such rules are a not-so-clever way to disguise intentional discrimination, but that is a bonus. You don't need to prove that to win. But you don't win just because there is a disparate impact. First, the impact has to be significant. If it isn't, you lose -- unless you have proof of the "bonus," in which case it's really an intentional discrimination case. Second, the employer can defend the requirement, despite the disparate impact, if it can show that the requirement is based on legitimate business concerns. (Just how rigorous the showing and how tightly related the requirement is to the concerns will be where the experts earn their money, but the concept is clear enough.) Obviously, since few black people know Finnish, this language requirement has a disparate impact, and a significant one, on black applicants. If you're applying for a clerical job at the New York office of the Finnish National Oil Company, however, it might well be sufficiently related to the job to pass muster -- though maybe not if you're being hired as a security guard or janitor.
The campus protest case simply does not involve disparate impact discrimination at all. The protesters, it is alleged, are intentionally discriminating, not setting up some facially neutral, non-discriminatory rule that they might justify on some non-discriminatory ground. The campus administration, it is alleged, is not hiding behind some neutral rule either, but intentionally turning a blind eye to intentional discrimination, or, perhaps, even indulging in it itself.
Oh, and Scalia, the dead guy, has nothing to do with this. The judge is the very much alive Mark Scarsi, but I guess all these Italian names sound alike.
On “Conservatives for Kamala”
As Holocaust deniers will tell us, there wasn't a signed order saying: "Kill all the Jews. [signed] Adolph."
On “Open Mic for the week of 8/12/2024”
It's a big part of my day job to understand disparate impact. This isn't a disparate impact case at all; the alleged discrimination by the protesters is intentional and to the extent that the claim is the administration is aiding and abetting it, that, too, is intentional. And in actual disparate impact cases, small disparate impacts get you thrown out of court all the time. And judges don't make claims, they make rulings. Parties make claims.
Other than that, good work.
On “Is Harris Limiting Press Access Helping Her?”
Good advice if you actually know what you're doing and how to do it. I'd be interested in hearing from someone who matches that description.
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The initial and revised estimates were both public documents, widely publicized and circulated at the time. It would take special efforts to memory hole them, and wouldn't work if they were made.
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I heard this stuff, along with the "FDR knew the Japs were coming for Pearl Harbor" bit, when I was a kid longer ago than most folks here were alive.
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Except that the revisions don't always make things look better.
And if you're talking about "independently of facts," that assumes there are facts that can be ascertained with useful accuracy. You need something more than an arched eyebrow to establish that the estimates that promote your narrative are better than the ones that don't.
On “POETS Day! Useful Lines and a Favorite from Pound”
Orwell's essay on Kipling is always worth reading:
https://www.orwellfoundation.com/the-orwell-foundation/orwell/essays-and-other-works/rudyard-kipling/
On “Open Mic for the week of 8/12/2024”
Go back and re-read.
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You're obviously spoiling for a fight with someone about what should or shouldn't be permitted on the UCLA campus. You'll have to have that fight with someone else. I've already highlighted the many unanswered questions about the scope of the order.
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Well, yes, there are certain things that the order is reasonably clear about, and which the campus administration could understand well enough to follow. Are you under the impression that anyone said anything else? If so, your argument is with them, and not with me.
"
"Weaponized skepticism." You use that phrase, but I do not think it means what you seem to think it means.
When a judge issues an order, enforceable by the contempt power, it must be clear about what it permits and what it forbids. There are some predictable issues that could easily arise on which the judge's order does not speak clearly. What comes off the top of your head is no substitute for clarity. There are ways to get it. If you want to play lawyer, don't commit malpractice.
"
That's all very interesting -- well, it's not, but I'm trying to be polite -- but whatever either of us personally thinks he sees, the question I raised is what the judge's order means, which only the judge can answer. If you want to talk about something else, that's your prerogative, and anyone interested in talking with you about whatever it is you do want to talk about can join in.
"
An excellent question, which is why I asked it. Since it is a question about what the judge's order means, the only person who can answer it is the judge. And he won't unless one of the parties seeks clarification. We'll just have to wait and see.
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Tastes great, and less filling.
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Thanks for obliging. It's good to know that there are things one can count on in this uncertain world.
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Please continue.
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This is a college, not an elementary school, middle school, or high school. Whatever arguments might be made for protecting the delicate sensibilties of kids from material that their parents find offensive (kids, in my experience, aren't all that delicate), purging college libraries of such material is just plain silly.
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Fortunately, despite differing perceptions, reality eventually asserts itself, and perceptions follow.
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Do you really expect him to?
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No, it wasn't. Read it again. You're a lawyer and should be able to understand a discussion about technical problems with an injunction directed mainly at campus authorities rather than protesters.
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Are you under the impression that someone was asking you to?
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The general principle is sound enough, but the devil is, as always, in the details. Acts that significantly impede the normal flow of campus traffic can and should be prevented, and the injunction clearly prohibits such things and clearly orders the school to take steps to prevent it. If Jewish students trying to get from Smith Hall to Jones Hall can't do it without a long, inconvenient detour, while non-Jewish students can pass right through, that is wrong. But if they can pass by without much inconvenience, is that a problem? Must they have unimpeded access to every square inch of the quad? What if they insist on standing right in the middle of an encampment that takes up only some of the quad without greatly inconveniencing others, and trying to shout down the protesters from within the encampment? Can protesters have spots on which they are allowed to protest while counter-protesters have different spots? It's not clear to me what the answers to these questions are from the terms of the injunction, and the most important aspect of any court order is that the parties know what they can and cannot do.
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Why? They're not that exotic, especially in big cities.
*Comment archive for non-registered commenters assembled by email address as provided.