Commenter Archive

Comments by PD Shaw in reply to LeeEsq*

On “Student Debt, Free College, and William Edward Hickson

I don't see any mention of the co-sign issues, but this paragraph seems important:

"Homaidan and Youssef contend that the loans Navient continues to bill for were discharged in bankruptcy because those loans exceeded the cost of attendance at a Title IV college. Such loans don’t count as a “qualified education loan” exempt from discharge under the bankruptcy code, they argue."

I'm not sure what the loan would be used for above the cost of attendance other than room and board, when the school's stated "cost of attendance" is based upon cost of living in a dorm.

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I think the issue is that these loans almost always need a cosigner, usually a parent. A student getting bankruptcy relief doesn't protect the cosigner.

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I think there is an important distinction btw/ what the U.S. government loans, which is around $31k for a four year degree, and the private loans that people necessarily took out in to order to cover the rest. I don't know that the U.S. government profits from the former, I would count these as subsidies to make college available to more young people, just not the most expensive colleges. The government can't do much about private loans; maybe the government can impose enough regulatory requirements on them that the business folds.

On “SCOTUS Strikes Again

Since I don't think affirmative action in higher education has ever been significant or authorized by SCOTUS precedent, I would place more importance on the impact of a "diversity" rationale on limiting the use of any racial preference to address historical legacies of slavery and Jim Crow.

The Bakke decision in 1978 which provided one Justices claim for diversity consideration on First Amendment grounds, Cornell West estimates that about 95% of black students at Harvard were "Black people from the United States who had been enslaved in Jim and Jane Crow." Now they might make up ten percent. Of course, Harvard won't release the numbers because they might look bad.

https://www.thecrimson.com/article/2020/10/15/gaasa-scrut/

On “Student Debt, Free College, and William Edward Hickson

Not really. The HEA came up in oral argument. The Solicitor General used HEA waivers to argue that this type of relief is not unusual since Congress had approved its use, while the Nebraska AG pointed out that HEA had different language, indicating Congress did not want HEA style waivers in the Heroes Act.

My instinct is that there are different issues to address under different laws and the program would end up differently, but maybe they just use the same underlying analysis. Otherwise, why wouldn't the Administration use the HEA in the first place? It might be that HEA waivers would open up a can of worms to continuous calls for debt jubilees that would pose political problems for Democrats and incentives to rack up more and more student loans (political, not legal issues).

On “SCOTUS Ruling on Affirmative Action & Admissions: Read It For Yourself

I attended a high affirmative action school that in the early 90s had about in coming class of (almost) 20% African-American, 20% Latino, and 20% Jewish. The Latinos were mostly drawn from the elite classes of Latin America and were not visible minorities. In contrast, I don't recall any African immigrants, but mostly these were the sons and daughters of white collar professionals, receiving some form of tuition discounts. As to Jews, the school's origins date back to when they were barred from many/most universities, so if affirmative action can be considered to include 'open a school that will admit a discriminated minority,' then that was here as well.

I think Justice Powell's diversity justification is dated and reflects the experience of a Virginia WASP from the early 20th century. Diversity was not about benefitting Latino Americans, diversity was about the opportunities for majority culture to interact with minorities, gaining new experience and new insights to the others. Quotas and set-asides weren't allowed because just a few exemplars of any group satisfy the objectives.

On “Student Debt, Free College, and William Edward Hickson

The $10,000 wasn't calculated to solve student loan debt problems, it was calculated to be the amount of debt relief that would maintain roughly the same level of delinquency and default rates that existed prior to the pandemic. Whatever one thinks about the policy or or its legality, its reach was limited in scope to the Pandemic pause. The new theory won't be so limited.

(I thought the program wasn't authorized by statute, but none of the parties had standing. The revenge of Massachusetts v. EPA is underway)

On “SCOTUS Rules in Moore v Harper Election Case: Read It For Yourself

I think it's more that the Republicans didn't challenge the NC Supreme Court ruling, a new NC Supreme Court had already overturned that ruling a couple of months ago. This case seems entirely moot to me, but someone had a theory that they wanted answered. The Biden administration also urged the SCOTUS to find the case moot, but their only allies were Alito, Thomas and Gorsuch.

On “The ChatGPT Lawyer Case: Mata v. Avianca

I think a lot of people overestimate the degree of difficult legal research required of typical lawyering. Most PI cases are largely fact-driven within the framework of legal principles that are repeated from court opinion to court opinion. In those cases if a lawyer cites a court opinion for well-known proposition ("airlines have a duty of reasonable care to their customers", probably few would check to see if the case existed or if its being misrepresented. If a court opinion is presented for a novel or highly determinative legal proposition ("airlines have no duty of care to their customers," I can't imagine the opponent not reading it.

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"A gross is a unit of measurement equal to 144 units," ChaptGPT esq.

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This appears to be a personal injury lawyer whose state lawsuit was removed to federal court, where I believe he was not admitted to practice though he's practiced law for 30 years. His firm doesn't have a subscription to a legal research service that covers federal law. Since the injury occurred inflight btw/ El Salvador and New York, the case implicated the Montreal Convention on aviation liability, to which an additional issue was raised about the effect of the stay issued under federal bankruptcy law on the limitations running.

This mainly looks like a lawyer who initially thought he was handling a standard PI case, who suddenly found himself outside his area of experience (and his group's support). He relied on technology that he didn't understand to bridge that gap. But any lawyer that didn't check an opposing party's legal authority would mostly just be uncovering their own incompetence.

On “Dubin v US: SCOTUS Aggravated by Prosecutorial Overreach

This resembles the Yates v. U.S. case from several years ago in which a fisherman dumped undersized fish after a federal agent caught him. The capture of undersized fish posed a potential fine and loss of fishing license. He was charged with destruction of records under Sarbanes Oxley and faced potential 20 years in prison. Kagan and Thomas dissented in Yates, which narrowly interpreted the scope of Sarbanes Oxley.

The principle of 'fair notice' is not strongly persuasive in either cases since the accused knew their conduct was wrong, they just did not know the degree of sh!t they were in. Still, affirming the prosecution would certainly have invited future expansive possibilities.

On “POETS Day! Henry Wadsworth Longfellow

"Keats published 'Ozymandias'"? Am I missing something, or is this more obfuscation and trespass?

My own limited sense of the type of poetry that might be read in mid-19th century America is there was a lot of graveyard poetry. Children might be expected to recite William Cullen Bryant's "Thanatopsis" (1817) from memory. One of Lincoln's favorite poems was from the Scottsman William Knox, "Mortality" (1847), which ascribes to death the role of great leveler showing no favor to king or peasant. The final verse:

‘Tis the twink of an eye, ’tis the draught of a breath,
From the blossom of health to the paleness of death,
From the gilded saloon to the bier and the shroud –
O why should the spirit of mortal be proud!

My sense would be that themes of the absolute nihilation of death must have been widely popular in America and Longfellow may only be unique in that he got paid.

On “She Might Have Become The Governor

I don't get this critique at least as applied here. Median household income in Oregon is $70k, which means a lot of medianhouseholds with two-incomes are composed of individuals making less than half of the $77k she was making. What should an Secretary of State get paid?

Does this problem go away if the SoS is paid $220k? I doubt it. Illinois pays its politicians more and has more corruption problems, many of which aren't about greed for money, as opposed to greed for power/influence. Illinois legislators are part-time and get paid a minimum $85,000 per year (recently raised) plus a $150 per day per diem. AFAIK most IL lawmakers have income from other sources, often working well in tandem with the influence gained as an elected official, such as law firm specializing in tax appeals.

For me, I think median household income would constitute a fair state government salary, particularly in light of benefits from insurance, pensions, and the intangibles of fame, power, influence . . .

On “The Problem With Constitutional Carry

My daughter got called for jury duty last August for a trial concerning a murder of a 19 year old black girl that lived and died about mile from us. My daughter basically lives out of state now and was home for a break btw/ her summer job and the start of the school year. When she left, I decided to look at the court website to see what jury trials were scheduled, and there was only one. Crap.

The shooter was also charged with illegal possession of a firearm (handgun) by a felon, which seems at least a day late to enforce. Who cares what conditions you place on having a firearm if access isn't enforced?

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Right. Constitutional carry doesn't have anything to do with any of this. Ten years ago Illinois was the only state that banned carry and every other state had addressed the rules governing how carry would work and whether and what training was required.

Last year a 15 year old girl stabbed to death another student and seriously injured a second student on school grounds here. She claimed self defense because she said the two were planning to attack her once she left the school, but she was widely seen chasing the second student through the hallway with the knife. The jury found her guilty and she was just sentenced to 43 years in prison. The same self defense laws applied as if she had a gun.

On “Dominion Settles With Fox News

I didn't mean to come off as grousing about the Business Insider story I quoted, they did a good job. Reporters can't report about insurance coverage when nobody will answer questions about whether it exists, unless there is a pending insurance coverage dispute litigation, which would be interesting also.

But reporters should mention insurance coverage is common because it has explanatory power about how the litigation proceeded and ended. And while I recognize reporters are rarely specialist in all of the areas they cover, they almost certainly understand one of the common benefits from working in a news organization over free-lancing is insurance coverage.

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I think journalist know more than they are willing to report on this, but here's Business Insider:

"Despite the looming settlement number, the Fox Corporation could ultimately escape relatively unscathed financially. The media source told Insider that insurance typically covers these types of agreements.

"Fox News representatives and attorneys declined to answer Insider's questions on their libel insurance.

"It was not immediately clear on Tuesday how Fox will handle the payout, but back in 2013 when shareholders sued the News Corp. board for not providing more oversight of the newspaper operation, which was accused of hacking the phones of celebrities, insurance paid out the $139 million settlement, according to Reuters. Fox was later spun out of News Corp into a separate company."

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Crimes? The standard commercial general liability policy covers defamation and slander lawsuits. It's an insurable risk.

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Probably just insurance money.

On “Tell Me Lies, Tell Me Sweet Little Manufacturing Lies

America has a history of Fordism, its own policies of supporting business with expectations for business supporting workers. Obama gave voice to this. From at least 1860 to 1952, the Republican Party had as one of its primary constituents manufacturing capitalists (as opposed to finance capitalist, Democrats) and at least until 1920, most of the manufacturing growth was in small midwest communities which benefitted from Republican policies. I don't think pro-manufacturing policies are against any sort of American cultural mainstream, the historic currents shifted temporarily with the Cold War, and that post-war consensus is disappearing more every time one turns around.

Until recently if there were stories dooming about manufacturing, newspapers and NPR would interview the President of the Illinois Manufacturing Association who would unload a number of statistics, some of it was simply to emphasize how many manufacturing jobs are in the state, because most of them are invisible. If they are not visible, they aren't valued. He would also have the number of job openings anticipated in the next ten years or so -- workers tend to stay at these jobs a long time, as they retire, replacements are needed, but the stability gives people the impression that jobs aren't there. He would also discuss how much used to be spent on vocational programs in high schools versus today, while schools prepare all students for the SAT and expand advance placement and dual credit programs.

I think unions are largely irrelevant in the U.S. in terms of these policy issues, and that itself might be path dependence from how the Civil War was won and victory imposed. The initial understanding of "Southern Strategy" was to provide low-cost, low-benefit, non-unionized work forces to attract Northern businesses without actually integrating into the National economy. Any national program will have to deal with the possibility that manufacturing may still want to locate where unions are weak. (Part of the reason unions are weak is that they were successful in supporting legislation that benefited all employees)

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Of course, it's policy. German's support a mixed economy with subsidies in one form or another, and the U.S. hasn't for some time now. I wouldn't expect a U.S. manufacturing policy to mirror Germany's. Puerto Rico's economy is 49% manufacturing. That's the effect of U.S. policy.

I would also emphasize a distinction btw/ manufacturing and urbanization, manufacturing does not have to be in the brownfields of large cities and is unlikely to take root there again.

On “From CNN Politics: Progressive Brandon Johnson will be elected Chicago mayor, succeeding Lori Lightfoot, CNN projects

Chicago doesn't have authority to raise taxes on businesses and the wealthy at least in any direct way; it can't tax income or earnings. Some of the indirect items he's proposed, like taxes on jet fuel and home sales, are also probably not authorized.

On “Tell Me Lies, Tell Me Sweet Little Manufacturing Lies

Putting Ireland aside, manufacturing makes up approximately nineteen percent of the German economy, so why is America's eleven percent considered normal or a constraint? The difference btw/ Germany and the U.S. is policy. Germany enacts policies supporting manufacturing, and the U.S. supports the college lie, that the answer to long-term prosperity for every American is to go to college and get a great job, where you will be waited upon by those found lacking.

What I don't see tied together in these occasional OT hit pieces on mfg. is that the higher productivity rate might mean fewer jobs created, but it also means a higher pay dividend for labor. That's why states pay for manufacturing jobs to relocate there, they want to import a middle class. Germany has 20% employed in manufacturing (compared with 10% in the U.S.) making almost 30% more than their American counterparts.

(Germany's manufacturing may have peaked with the Ukraine invasion, and what is likely to be a continuous energy crisis. That's actually an advantage for the U.S. and not some harbinger)

On “VIDEO: Who Would Be King?

Hamilton proposed a President elected for life. One can easily imagine how that could have worked out. I think the Saxon kings were appointed by the Witan, but the king used his powers, including of appointment, to gain favor for his heir. If Washington was President-for-Life one can imagine a situation in which a faction backs Washington's heir based upon name recognition and inherited reputation, and a few such appointments later, the Presidency is a de facto inherited monarchy with certain unique checks.

The other scenario would be in Washington's third national act as leader of the New Army. The first act was as Commander in Chief who very publicly resigned his commission before the Continental Congress. The second act was as President of the U.S., from which he departed after two terms. But when the international fallout from the French Revolution reached the U.S., Washington accepted titular command of the New Army, which Hamilton was to organize. The exact purpose of this army is unknown beyond repelling a theoretical French invasion, though Henry Adams believed it was being raised for internal purposes as well. Had France sought to destabilize the U.S. internally during the Quasi-War or sought to raise a rebellion against Adams, a scenario could enfold where the New Army was triggered into action to fight enemies both foreign and domestic. (Notably, the political party being created by Jefferson-Madison at this time was no less a violation of norms of republican virtue than monarchy) Washington clearly saw this as a crisis, if called to save his country a third time would he ever return home? He died in December of 1799, so this scenario seems like it runs out of time and opportunity pretty quickly. But it could cause reformation of the Constitutional system in worst case scenarios.

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