This is deeper than the liberal / illiberal democracy distinction. What are the electoral politics of a place below a certain level of personal security and economic stability? Below a certain minimum GDP/per capita democracy is generally not sustainable, and there are a lot of examples of how electoral politics work in post-war setting or amidst an economic depression. I would expand this observation to Israel itself, the electoral politics stemming from the average citizen's security concerns are going to be vastly different than those in some privileged community that doesn't see the need for police or personal firearms.
This can't last forever, but it certainly can last longer than I have to live.
As much as I think Civil War analogies are always a good way to talk to Americans about underlying truths, I think the main problem here is evidenced by the CSA adopting a Constitution that was nearly identical to the existing one except for primarily one thing. They had a war and the one thing was decided by amending the Constitution to eliminate that one thing. I don't see anything so simple here. Certainly the U.S. didn't take action to modify the culture of the former CSA regions or pay anything to rebuild the war-torn South. At most they extended voting rights with the hope that freemen would support the Republican party in national elections.
Elections tend to be overrated by Americans. Hamas was elected once.
I think at least one of the main issues with the U.S. Constitution is that it is hostile to political parties that it's separation of powers need to govern. The last two Speakers of the House, one from each party, have to bargain with rather small factions by conceding powers that the office need. The absence of an election threat makes the parties too week if they don't have significant majorities.
I think the reality is that for almost all legal positions, there are more qualified applicants than openings, and controversy is going to make it easier to eliminate choices.
I get that internet searches are increasing the risk that people are getting cancelled for things that were unknowable not too long ago, and Ackman trying to organize a employer boycott also take it too another level. But in some sense, he's expressing reality and students should know it.
Interesting primer. In your last paragraph you mention possible collapse of the government. What form would that take? A no confidence vote, snap election?
I think the issue for McCarthy was Pelosi said she would have his back in case the motion to vacate came up before he agreed to loosening the rules on vacatur. (Not by voting against it, but by voting present)
And that's pretty consistent with things she's long said about thirty or so members of your caucus shouldn't control majority party organization issues. She has described this as an institutional principle, not in terms of doing any favors for the majority. The U.S. Constitution doesn't contemplate parties, nor does it contemplate a majority party failing to organize itself which is resolved in other countries by new parliamentary elections.
Who does the Democratic Party support for Speaker or did they reach the anybody-but-McCarthy point that they'd prefer Gaetz, Trump, or the House in recess until the next election? I can see the cycle of retaliation going on here, but I don't see the strategic sense in the Democrats getting involved in the Republican's problems.
That sounds like my experience. I go to a drug store chain, take a card for the pseudoephedrine product off a shelf and give it to the pharmacist. They will sell it to me after I insert my driver's license into the same card reader that I will use for my credit card and sign on the screen. It's basically like doing a credit/debit card transaction twice.
I don't find going to the pharmacist to get pseudoephedrine that inconvenient, let alone punitive. I would probably find mask mandates as posing a similar degree of inconvenience. On the other hand, I don't think masks, at least the kinds I had access to, are very effective and tried my best to never rely upon them before I was fully vaccinated. Meth is pretty easy to make -- about twenty years ago a federal public defender explained how to make it at a party I was at, so it's so easy a lawyer can make it. The notion that the regulation of pseudoephedrine has no benefit because now meth is being made outside of the country is based upon the premise that demand is entirely inelastic, which might be true for addicts, but the concern should be focused on limiting access to first use.
I think that's a good argument, and interpreting the standard will be a significant issue. It looks to me like there is a regulation, but it's not written as a specification (identifying specific widget(s) or measurable standards), but a fairly general principle. The benefit of not having a specification is that it allows innovation in areas of technological change; the downside is it can lead to judicial interpretation.
I omitted that part of the standard that states it's purpose is "to decrease the likelihood that a vehicle is stolen, or accidentally set in motion." So the plaintiffs will focus on the more general purpose of "theft prevention" (which is also in the title), and then focus on theft prevention systems that were common in vehicles at the time of certification.
Looks like plaintiffs are relying on Federal Motor Vehicle Safety Standard No. 114, which requires all vehicles to “have a starting system which, whenever the key is removed… prevents the normal activation of the vehicle's engine or motor." Manufacturers self-certify compliance with this requirement, so I would expect the lawsuit to focus on what the companies knew or should have known when certifying.
Ten percent of Kia's in Chicago were stolen last year, so in about ten years the problem will be resolved.
As to the lawsuits, they appear to be typical class action lawsuits. I have problems with some of the abuses in class actions, but they might benefit from the government pursuing them on behalf of the public. The proposed settlement gives consumers up to $300 for a wheal lock or anti-theft system. Individuals can't sue for that kind of relief, and Illinois isn't joining because that won't be effective for all vehicles, so it could be more, but still probably sorely insufficient for individual actions.
I certainly don't disagree about a racial element in domestic discourse around the Japanese, but the anti-German elements were pronounced as well, though perhaps stronger during WWI. The lesson for German-Americans taken from WWI was to de-Germanify, though still policies like Prohibition were seen as anti-German.
My grandfather was drafted at a later age because he lived in area with a substantial German peace church presence whose members liberally claimed conscientious objector status. He objected to the pacifist bona fides of those he had known all his life.
Anyway Germany/Europe was the expressed strategic priority over Japan/Pacific. The war aims for the U.S. were the same, occupation and demilitarization. These are obvious priorities given everybody in positions of influence were taking their lessons from WWI (including the Japanese command) The U.S. and its allies has seen the consequence of a negotiated peace/ armistice as merely serving as breathing space for renewed aggression. The counterfactual that I think is worth considering is what the McCarthy era would have been like if it had been disclosed that the U.S. had a weapon capable of ending the war sooner (whether it be in Germany or Japan) and it wasn't used for some philosophical musings on the implications of the Prometheus myth. I don't think it would have been pretty.
Meh, I think dropping the bomb was good for the reason I gave -- it increased the likelihood that my grandfather and others in his situation came home from the war alive. I see dividing good from justified as a false dichotomy, and if people aren't using "just war" in the more technical sense, it usually comes across as "deserving." It was good to bring the war to an end as quickly as possible. If the criticism is people are spiking the ball in some unflattering light, then that seems more of a social media issue that I am not exposed to and it wasn't in the body of the article. The main criticism I had of the article was highlighting a Nikole Hannah-Jones twit is a bit of nut-gathering, there are certainly better critiques than her conspiracy theorizing.
I think ten years or so ago, credit card companies were getting sued for gambling transactions. I think the gist of the cases was something like the husband has a gambling addiction, he is gambling the family into the poor house, the credit card company knew the transactions were for gambling, and gambling was illegal under state law or prohibited under the federal Wire Act. I think the credit card companies went to Congress and got legislation protecting them, but I'm not sure. I can see where credit card companies want to avoid exposure even if a lot of these cases end up being without merit.
In 1945 my Grandfather was in the U.S. Army moving across China towards Shanghai with the understanding his unit would be engaged in combat operations to take the city or for the invasion of Japan. Previously he had mainly been involved in helping transport supplies from India/Burma to Kunming for the Chinese Army. He was 36 years old office clerk with two children, the result of the draft needing to move up the age ladder.
The Japanese were withdrawing and concentrating in the port cities which was imperative to prevent the Allies from getting more and better supplies to the Chinese National Army as well as to supply the homeland from any blockade. Shanghai, an international city, before the Japanese occupation, had tens of thousands of Americans, British, Dutch and Jews in concentration camps. These were suspect nationalities that would have probably been eliminated for administrative convenience if the city came under attack. But mostly wars in concentrated population centers have the most horrific body counts.
I'm a bit skeptical about the ability of an individual to unilaterally withdraw an OSHA complaint. He may have withdrawn his complaint, but I don't think that necessarily resolves the issue for OSHA unless OSHA agrees.
The most common situation in which a complaint is withdrawn is when OSHA determines in pre-screening that a complaint is either untimely or fails to state a claim. Because OSHA has to notify the employer before taking any official action on the complaint, including dismissing the complaint, OSHA notifies the employee of their intentions and provides the employee an opportunity to withdraw the complaint so that the employer isn't notified. These are general statements, OSHA administers a number of statutes and there is always some variance by industrial sector.
But it sounds like the complaint passed screening and if OSHA dropped the case, that would have been OSHA's decision based upon what information it was provided. Would be interesting to see what that was.
The odd thing is that Amazon doesn't own the rights to The Silmarillion so they can't reference anything in it. They have rights to the Second Age material referenced in the LOTR, mainly the appendixes. The way they handled that in the LOTR trilogy was to not be inconsistent with the other material, but not directly use it. The closest they came was when Gandalf was sharing the names of the wizards he came to Middle Earth with, but when he came to the Blue Wizards, he said he had "quite forgotten their names." The names are in some Christopher Tolkien edited materials so they couldn't use it.
I may watch it some day, but I do wonder the point of paying for rights to something that wasn't really usable in and of itself.
The trial court and the court of appeals ruled against the plaintiff, so the stipulations could not have been completely dispositive. Gorsuch wields them to maximum effect, but future litigants will certainly have incentives to scrutinize whether any of those stipulations apply or agreed to in future cases.
One of the issues was how Colorado structured its laws. The state indicated that it had no discretion but to pursue a complaint once a private citizen files one. This is not like a jaywalking case, where the police observe a violation, it's given to a DA to prosecute or not prosecute. The law has outsourced the first part to everybody and given the government no discretion not to enforce a complaint. This is somewhat reminiscent of the Texas abortion law that basically privatized both components, but here the process feeds to the state which can be enjoined. Whatever the merits, this is a design that doesn't entirely trust the government.
The link seems fine. I've been wondering about examples of pre-enforcement challenges, and abortion seems like a good example. I'm not aware of any of the key abortion cases (post-Roe) requiring a woman to have an abortion in order to get judicial review. The Wikipedia entry says the plaintiff's lawyers were concerned that any woman would be insufficient to satisfy standing: "Plaintiff is a woman who may become pregnant some day and may want an abortion." This might not work either: "Plaintiff is a woman trying to become pregnant so she could get an abortion, but for the anti-abortion laws." With a pregnant woman, the story was tightened by eliminated a contingency.
One other point I haven't seen addressed is that standing is supposed to be present when the complaint was filed and all through the case. It's a prerequisite for the courts to have power to act and judges can raise the issue themselves. If one of the parties think that there was no standing in this case, they can file a motion with the SCOTUS articulating what they've learned.
I think the harm needs to be anticipated, not speculative. This is the standing criteria cited by the trial court in this case: "In the context of a pre-enforcement challenge, to show an injury in fact, a party must allege 'an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.'" That sounds like her story.
There is something called the declaratory judgment act which authorizes courts to give a declaration of the rights of parties in a controversy. The state passes a law requiring blacks to sit at the back of the bus -- a black could sue for a declaration that this violates the Constitution. An employee wants to change jobs, but is concerned about non-compete contract he signed -- he can sue for a declaration that the non-compete isn't binding or not applicable to the job he is seeking.
If I recall the issue with challenging sodomy statutes was the unlikelihood of prosecution of private conduct on right of privacy grounds. The fact pattern in which the cops stumbled into someone's bedroom to see that which may not be named made the difference.
Her basis of standing is that the plaintiff wants to expand her graphic design business to include services for couples seeking wedding websites, but she's afraid that she will receive a request to do something that she doesn't want to do under threat of legal sanction. It might be better if she was in the business, but standing doesn't require someone to violate the law to get access to the courts.
It's a better standing argument than the third-party assertions in the student loan case. (My wife wants to go into the wedding website business and I'm afraid of the economic consequences for me, but she doesn't agree with me.)
*Comment archive for non-registered commenters assembled by email address as provided.
On “Auribus Teneo Lupum: Holding a Wolf by its Ears”
This is deeper than the liberal / illiberal democracy distinction. What are the electoral politics of a place below a certain level of personal security and economic stability? Below a certain minimum GDP/per capita democracy is generally not sustainable, and there are a lot of examples of how electoral politics work in post-war setting or amidst an economic depression. I would expand this observation to Israel itself, the electoral politics stemming from the average citizen's security concerns are going to be vastly different than those in some privileged community that doesn't see the need for police or personal firearms.
"
This can't last forever, but it certainly can last longer than I have to live.
As much as I think Civil War analogies are always a good way to talk to Americans about underlying truths, I think the main problem here is evidenced by the CSA adopting a Constitution that was nearly identical to the existing one except for primarily one thing. They had a war and the one thing was decided by amending the Constitution to eliminate that one thing. I don't see anything so simple here. Certainly the U.S. didn't take action to modify the culture of the former CSA regions or pay anything to rebuild the war-torn South. At most they extended voting rights with the hope that freemen would support the Republican party in national elections.
Elections tend to be overrated by Americans. Hamas was elected once.
On “Brief Aside On Cancel Culture”
Chip cancelled himself?
On “Election 2023: New Zealand Makes A Choice, Reluctantly”
I think at least one of the main issues with the U.S. Constitution is that it is hostile to political parties that it's separation of powers need to govern. The last two Speakers of the House, one from each party, have to bargain with rather small factions by conceding powers that the office need. The absence of an election threat makes the parties too week if they don't have significant majorities.
On “From CNN: Israel says it is ‘at war’ after Hamas surprise attack”
I think the reality is that for almost all legal positions, there are more qualified applicants than openings, and controversy is going to make it easier to eliminate choices.
I get that internet searches are increasing the risk that people are getting cancelled for things that were unknowable not too long ago, and Ackman trying to organize a employer boycott also take it too another level. But in some sense, he's expressing reality and students should know it.
On “Election 2023: New Zealand Makes A Choice, Reluctantly”
Interesting primer. In your last paragraph you mention possible collapse of the government. What form would that take? A no confidence vote, snap election?
On “Blowing Out the Speaker”
I think the issue for McCarthy was Pelosi said she would have his back in case the motion to vacate came up before he agreed to loosening the rules on vacatur. (Not by voting against it, but by voting present)
And that's pretty consistent with things she's long said about thirty or so members of your caucus shouldn't control majority party organization issues. She has described this as an institutional principle, not in terms of doing any favors for the majority. The U.S. Constitution doesn't contemplate parties, nor does it contemplate a majority party failing to organize itself which is resolved in other countries by new parliamentary elections.
"
Who does the Democratic Party support for Speaker or did they reach the anybody-but-McCarthy point that they'd prefer Gaetz, Trump, or the House in recess until the next election? I can see the cycle of retaliation going on here, but I don't see the strategic sense in the Democrats getting involved in the Republican's problems.
On “Thursday Throughput: Decongestant Edition”
That sounds like my experience. I go to a drug store chain, take a card for the pseudoephedrine product off a shelf and give it to the pharmacist. They will sell it to me after I insert my driver's license into the same card reader that I will use for my credit card and sign on the screen. It's basically like doing a credit/debit card transaction twice.
"
I don't find going to the pharmacist to get pseudoephedrine that inconvenient, let alone punitive. I would probably find mask mandates as posing a similar degree of inconvenience. On the other hand, I don't think masks, at least the kinds I had access to, are very effective and tried my best to never rely upon them before I was fully vaccinated. Meth is pretty easy to make -- about twenty years ago a federal public defender explained how to make it at a party I was at, so it's so easy a lawyer can make it. The notion that the regulation of pseudoephedrine has no benefit because now meth is being made outside of the country is based upon the premise that demand is entirely inelastic, which might be true for addicts, but the concern should be focused on limiting access to first use.
On “Chrome & Punishment”
I think that's a good argument, and interpreting the standard will be a significant issue. It looks to me like there is a regulation, but it's not written as a specification (identifying specific widget(s) or measurable standards), but a fairly general principle. The benefit of not having a specification is that it allows innovation in areas of technological change; the downside is it can lead to judicial interpretation.
I omitted that part of the standard that states it's purpose is "to decrease the likelihood that a vehicle is stolen, or accidentally set in motion." So the plaintiffs will focus on the more general purpose of "theft prevention" (which is also in the title), and then focus on theft prevention systems that were common in vehicles at the time of certification.
"
Looks like plaintiffs are relying on Federal Motor Vehicle Safety Standard No. 114, which requires all vehicles to “have a starting system which, whenever the key is removed… prevents the normal activation of the vehicle's engine or motor." Manufacturers self-certify compliance with this requirement, so I would expect the lawsuit to focus on what the companies knew or should have known when certifying.
"
Ten percent of Kia's in Chicago were stolen last year, so in about ten years the problem will be resolved.
As to the lawsuits, they appear to be typical class action lawsuits. I have problems with some of the abuses in class actions, but they might benefit from the government pursuing them on behalf of the public. The proposed settlement gives consumers up to $300 for a wheal lock or anti-theft system. Individuals can't sue for that kind of relief, and Illinois isn't joining because that won't be effective for all vehicles, so it could be more, but still probably sorely insufficient for individual actions.
On “Quibbling Over Nomenclature Regarding the Atomic Bombings”
I certainly don't disagree about a racial element in domestic discourse around the Japanese, but the anti-German elements were pronounced as well, though perhaps stronger during WWI. The lesson for German-Americans taken from WWI was to de-Germanify, though still policies like Prohibition were seen as anti-German.
My grandfather was drafted at a later age because he lived in area with a substantial German peace church presence whose members liberally claimed conscientious objector status. He objected to the pacifist bona fides of those he had known all his life.
Anyway Germany/Europe was the expressed strategic priority over Japan/Pacific. The war aims for the U.S. were the same, occupation and demilitarization. These are obvious priorities given everybody in positions of influence were taking their lessons from WWI (including the Japanese command) The U.S. and its allies has seen the consequence of a negotiated peace/ armistice as merely serving as breathing space for renewed aggression. The counterfactual that I think is worth considering is what the McCarthy era would have been like if it had been disclosed that the U.S. had a weapon capable of ending the war sooner (whether it be in Germany or Japan) and it wasn't used for some philosophical musings on the implications of the Prometheus myth. I don't think it would have been pretty.
"
Meh, I think dropping the bomb was good for the reason I gave -- it increased the likelihood that my grandfather and others in his situation came home from the war alive. I see dividing good from justified as a false dichotomy, and if people aren't using "just war" in the more technical sense, it usually comes across as "deserving." It was good to bring the war to an end as quickly as possible. If the criticism is people are spiking the ball in some unflattering light, then that seems more of a social media issue that I am not exposed to and it wasn't in the body of the article. The main criticism I had of the article was highlighting a Nikole Hannah-Jones twit is a bit of nut-gathering, there are certainly better critiques than her conspiracy theorizing.
On “From Reuters: Mastercard moves to ban cannabis purchases on its debit cards”
I think ten years or so ago, credit card companies were getting sued for gambling transactions. I think the gist of the cases was something like the husband has a gambling addiction, he is gambling the family into the poor house, the credit card company knew the transactions were for gambling, and gambling was illegal under state law or prohibited under the federal Wire Act. I think the credit card companies went to Congress and got legislation protecting them, but I'm not sure. I can see where credit card companies want to avoid exposure even if a lot of these cases end up being without merit.
On “Dropping the Atomic Bombs Was Good, Actually”
In 1945 my Grandfather was in the U.S. Army moving across China towards Shanghai with the understanding his unit would be engaged in combat operations to take the city or for the invasion of Japan. Previously he had mainly been involved in helping transport supplies from India/Burma to Kunming for the Chinese Army. He was 36 years old office clerk with two children, the result of the draft needing to move up the age ladder.
The Japanese were withdrawing and concentrating in the port cities which was imperative to prevent the Allies from getting more and better supplies to the Chinese National Army as well as to supply the homeland from any blockade. Shanghai, an international city, before the Japanese occupation, had tens of thousands of Americans, British, Dutch and Jews in concentration camps. These were suspect nationalities that would have probably been eliminated for administrative convenience if the city came under attack. But mostly wars in concentrated population centers have the most horrific body counts.
On “Stockton Rush Needed Slapped, not SLAPP”
I'm a bit skeptical about the ability of an individual to unilaterally withdraw an OSHA complaint. He may have withdrawn his complaint, but I don't think that necessarily resolves the issue for OSHA unless OSHA agrees.
The most common situation in which a complaint is withdrawn is when OSHA determines in pre-screening that a complaint is either untimely or fails to state a claim. Because OSHA has to notify the employer before taking any official action on the complaint, including dismissing the complaint, OSHA notifies the employee of their intentions and provides the employee an opportunity to withdraw the complaint so that the employer isn't notified. These are general statements, OSHA administers a number of statutes and there is always some variance by industrial sector.
But it sounds like the complaint passed screening and if OSHA dropped the case, that would have been OSHA's decision based upon what information it was provided. Would be interesting to see what that was.
On “From Bloomberg: Amazon CEO Asks His Hollywood Studio to Explain Its Big Spending”
The odd thing is that Amazon doesn't own the rights to The Silmarillion so they can't reference anything in it. They have rights to the Second Age material referenced in the LOTR, mainly the appendixes. The way they handled that in the LOTR trilogy was to not be inconsistent with the other material, but not directly use it. The closest they came was when Gandalf was sharing the names of the wizards he came to Middle Earth with, but when he came to the Blue Wizards, he said he had "quite forgotten their names." The names are in some Christopher Tolkien edited materials so they couldn't use it.
I may watch it some day, but I do wonder the point of paying for rights to something that wasn't really usable in and of itself.
On “A Paucity Of Limits, By Stipulation: 303 Creative v Elenis”
The trial court and the court of appeals ruled against the plaintiff, so the stipulations could not have been completely dispositive. Gorsuch wields them to maximum effect, but future litigants will certainly have incentives to scrutinize whether any of those stipulations apply or agreed to in future cases.
One of the issues was how Colorado structured its laws. The state indicated that it had no discretion but to pursue a complaint once a private citizen files one. This is not like a jaywalking case, where the police observe a violation, it's given to a DA to prosecute or not prosecute. The law has outsourced the first part to everybody and given the government no discretion not to enforce a complaint. This is somewhat reminiscent of the Texas abortion law that basically privatized both components, but here the process feeds to the state which can be enjoined. Whatever the merits, this is a design that doesn't entirely trust the government.
On “Why the 303 Creative Decision Was Not About A Hypothetical”
Someone did on another post!
On “On Fraud, Standing, and “Stewart and Mike” Not Getting Their Day in Court”
The link seems fine. I've been wondering about examples of pre-enforcement challenges, and abortion seems like a good example. I'm not aware of any of the key abortion cases (post-Roe) requiring a woman to have an abortion in order to get judicial review. The Wikipedia entry says the plaintiff's lawyers were concerned that any woman would be insufficient to satisfy standing: "Plaintiff is a woman who may become pregnant some day and may want an abortion." This might not work either: "Plaintiff is a woman trying to become pregnant so she could get an abortion, but for the anti-abortion laws." With a pregnant woman, the story was tightened by eliminated a contingency.
One other point I haven't seen addressed is that standing is supposed to be present when the complaint was filed and all through the case. It's a prerequisite for the courts to have power to act and judges can raise the issue themselves. If one of the parties think that there was no standing in this case, they can file a motion with the SCOTUS articulating what they've learned.
"
I think the harm needs to be anticipated, not speculative. This is the standing criteria cited by the trial court in this case: "In the context of a pre-enforcement challenge, to show an injury in fact, a party must allege 'an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.'" That sounds like her story.
"
There is something called the declaratory judgment act which authorizes courts to give a declaration of the rights of parties in a controversy. The state passes a law requiring blacks to sit at the back of the bus -- a black could sue for a declaration that this violates the Constitution. An employee wants to change jobs, but is concerned about non-compete contract he signed -- he can sue for a declaration that the non-compete isn't binding or not applicable to the job he is seeking.
If I recall the issue with challenging sodomy statutes was the unlikelihood of prosecution of private conduct on right of privacy grounds. The fact pattern in which the cops stumbled into someone's bedroom to see that which may not be named made the difference.
"
Her basis of standing is that the plaintiff wants to expand her graphic design business to include services for couples seeking wedding websites, but she's afraid that she will receive a request to do something that she doesn't want to do under threat of legal sanction. It might be better if she was in the business, but standing doesn't require someone to violate the law to get access to the courts.
It's a better standing argument than the third-party assertions in the student loan case. (My wife wants to go into the wedding website business and I'm afraid of the economic consequences for me, but she doesn't agree with me.)
*Comment archive for non-registered commenters assembled by email address as provided.