December 23, 2003

The Modern Jury - distilled to remove the common sense for increased effectiveness!

There's a lot that I like about law and the legal profession. A post from yesterday on my personal blog is a perfect example of that.

Nevertheless, some crap is beyond the pale. I got the link to this story from the Ron Smith Radio Program website. Below is the first paragraph -

A new guide for trial lawyers advises them to be wary of Americans with "extreme attitudes about personal responsibility" when selecting jurors in personal injury lawsuits. The author of the guide says such jurors typically "espouse traditional family values" and often "have strong religious beliefs."

FYI, that's (poorly disguised) code for "Judeo-Christian" religious beliefs. The core belief in the Jewish and Christian faiths is that God created this planet and made us in His image. He gave us a brain to control our impulses and reason our actions and creativity so that we can make a difference in our lives and the lives of others.

The necessary result of having a brain is that you are expected to use it. Of course, people with this basis for their world views will be suspicious of someone wanting the law to appropriate someone else's possessions to them. They will want to know that the plaintiff acted reasonably and used his or her noggin to at least a minimum or acceptability given the circumstances.

This is what the author of the guide calls a "personal responsibility bias." No shit. (Pardon my French).

Anyone who wants to re-allocate the defendants possessions and wealth without asking whether the plaintiff is not truly the cause of his own injury is not seeking justice, at all.

Such a person is attempting to minimize the pain they perceive. The (stupid/irresponsible) plaintiff is actually injured, and maybe the money would make him feel better. The defendant won't feel actual pain if we take his money, so the plaintiff should get the money. The root of the "compassionate-altruistic bias" (as called by the author, and in contrast to "personal responsibility bias"), is the socialist ideal that possessing any more wealth than anyone else is inherently "evil". (For more discussion on this point, see my series "Creativity versus Sharing" part 1, part 2, and part 3.)

The question, then, is: Do we want people with the basis for their world view that has led to the prosperity of the most powerful nation that this world has ever seen (that's the USA, for you frogs) to be excluded from the decision-making role in our justice system in favor of people who have bought into the core beliefs that have led France and the former Soviet Union to their positions of world economic preeminence?

Hmmm... that's a tough one. I guess it would take a Trial Lawyer to figure that one out.

Posted by Bronson at 11:36 AM | Comments (3)

December 19, 2003

Governmental Speech

In a fairly interesting review of a case, Eugene Volokh includes this final line:

The Free Speech Clause does not, I think, prevents the government from using a variety of techniques -- speaking through its employees, speaking through people whom it invites because of their views, or speaking through people whom it tells what to say and what not to say -- to express its views (subject to the Establishment Clause constraint that the government can't take stands on religious questions). [SIC]

I disagree with this. I think that the First Amendment was specifically put in place to do two things: (1) Prevent the government from censoring viewpoints it disagrees with; and (2) Prevent the government blatantly supporting given viewpoints (if only because by supporting one viewpoint alternate viewpoints are specifically suppressed.
It is clear to me that under current law in the U.S., government is permitted to subsidize speech however it wishes. Government often is a speaker and it is permitted to say whatever it likes. And if government desires to use taxpayers funds to direct attention to certain topics, there is no basis for constitutional complaint. The exception to this is if government is allocating funds to private speakers in a way that discriminates on the basis of viewpoint (discrimination by either inclusion or exclusion).
Clearly, to me, in the case discussed by Prof. Volokh, there is viewpoint discrimination and that is wrong. It may be considered okay to talk about diversity and homosexuality (this is drawing attention to an issue and well within the free speech right of the government), but it should not be considered acceptable, under the 1st Amendment, to specifically include and exclude certain viewpoints of speech.

This, of course, should be annotated to say that I don't believe that groups such as neo-nazis should have a place at a talk on diversity. But this argument is more on practical grounds - we cannot include all viewpoints, so fringe elements (elements that are ridiculous to the vast majority of society) have to be discluded from the public forums. Now, one might argue that those in favor of homosexuality (and who claim that it is acceptable according the Bible) use to be a fringe element and maybe it did and maybe it didn't. But I would argue that before it could gain a seat a a public, government funded forum it had to claw its way out of obscurity. Such is the burden of the minority in a democratic system.

Posted by DFMoore at 08:46 AM | Comments (3)

December 18, 2003

Federalism: Why We Should Want to Recover This Precious Pearl We Long Ago Threw to the Swine

Putting aside the usual eloquence, I would like to get Right To The Point.

Our Founders didn't trust government farther than they could throw it.

Federalism was a fundamental key to what our nation was supposed to be. Now adays, "Federalism" has become the word used to embody the idea of "states rights." What's somewhat peculiar, of course, is that originally, the same ideals of Federalism espoused by the few who care today, used to be considered radically pro-big-central-government. The opposite of Federalism is now pro-growing-the-central-government, whereas before the opposite was all-power-to-states-and-none-to-the-central-government.

I can't say precisely when this changed, but I can tell you what the single biggest blow to the idea that the Federal Government AND the States need to be sovereigns concurrently was.

The 17th Amendment.

It has annihilated the primary check on the growth of the central government.

Most people don't know what it does or why that's bad. I'll tell you.

Our Founders had a keen understanding of human nature. They understood that people tend to do that which is in their best interest, as they understand it. They designed the Federal government to only have limited powers. The Federal government was really just a small chunk of sovereignty carved away from state sovereignty, and the pieces from each state all together added up to the Federal government.

At that time, the fear was that the states, being more established and the sovereign to which the citizens identified, could run rough-shod over the central government. So each state got equal representation in the Federal government. No matter how big and or populace the state, it got the same as any other state. That representation was in the form of the two senators that each state sent to Congress.

So long as the states were represented, the founders thought, the central government will not grow into areas belonging to the states unless there really is a consensus.

People get representatives too. As citizens, we get one representative per some number (I forget at this moment plus or minus) so that we get approximately equal representation. Viola! That’s why we have the big census every decade. It makes sure that our allotment of representation is never too old. The representatives existed in the House as a watchdog on both the state and the federal interests. You see, this way, the states could not collude with the federal government to take away rights.

Oh, and another thing that was important to the Founders was that all bills pertaining to raising revenue originate in the House. For a long time I wondered, “Why in the House? Why not in either house of the Congress?” The reason, when you look at the original Constitution (pre-17th, I mean) was that the Founders MEANT it when they proclaimed “No Taxation Without Representation!” Taxation, according to the Constitutional plan, must originate by the people who will really be impacted by taxes.

As an aside, it’s also interesting to note that any impeachment proceeding must begin in the House as well. Again you ask, “Why?” Well, it’s quite simple, really. The Founders believed that the most important qualification for the Presidency was high moral character, so the Founders decided that the standard for removing a President was to be “High Crimes and Misdemeanors.”

Tell the truth… When you heard that back in ’98 you believed the news media and the legal experts who, inexplicably, all seemed sympathetic to Bubba, you were persuaded to believe that “High Crimes and Misdemeanors” really meant “Big” or “Really Important” crimes. Right?

That is so incredibly wrong. The phrase comes from ecclesiastical adjudication in the middle ages. As you can all imagine, the idea was that it was one thing to commit a crime against the law, but to offend the God’s law… the HIGHEST law… well, that was really bad. By the time our Founders were around, that understanding morphed into the meaning that “High Crimes and Misdemeanors” were serious moral failings.

Hmmmm… didn’t hear that from CNN did ya?

Anyway, I’ve digressed long enough on that point. What I’m getting at is that the House of Representatives was supposed to be the part of the Federal Government closest to the heart and sensibilities of the people. If the President did something truly morally offensive, the House was supposed to pick up on that.

The Senate, as representatives of the States, were to be seasoned, and understand the law more deeply. The Senate would check the passions of the House and determine if there really was a violation by serving as a special court.

“OK, OK,” you’re saying, “so what does this have to do with why the 17th Amendment is so bad?” -- We no longer have the check. Like I said above, the Founders understood human nature. They didn’t want the Federal government taking BIG steps unless it was in the best interest of BOTH the people AND the states.

How can our federal system survive in any meaningful way if the states cannot assert their interests? The Founders expected gridlock in the Congress. They expected the tension to be a filter that would only let legislation pass that was really likely to be beneficial to our nation.

Now, we have 6-year panderers and we have 2-year panderers, and ALL of them have in their own personal interests the buying of popular votes by bloating the budget and mandating special interests. If it were as our Founders intended, a Senator would REALLY listen when one of his constituents called. He would only have a couple hundred… they would be in the state legislature. If he wanted to keep his job, he would listen carefully when they spoke. How closely does your Senator listen to you now? It’s all a statistics game now. It’s all about how many votes can he buy each tax dollar he allocates, and none of it is about respecting the Federal system.

So… Why should you care? Because if you are reading this, you probably have at least a vague interest in the health of our government and nation. You probably wish the government didn’t spend money like a drunken sailor, and you probably wished the Federal government reach less into your life.

Currently the best we can do is elect Senators and Representatives who have a conscience, and so long as they keep it, they will probably do a passably good job. Eventually, however, the need to be liked by everybody, and the need to pander for votes overcomes them, and then they become part of what we hate. If we repeal the 17th Amendment, we will insulate, to some extent the part of the Federal government interested in restraining the growth of the Federal government.

Repeal the 17th Amendment so that the magnificent health of our Federal government does not starve the liberty out of our nation.

Posted by Bronson at 11:27 PM | Comments (4)

Some Ideas on the Nature of Regulation in

(this post is a combined and rewritten version of posts appearing at DFMoore)

It's a dangerous place, this internet. The Demons of Democracy are everywhere. - DM

Cass Sunstein's discusses regulation and free speech with regards to the internet and it does a really good job at pointing out some of the more pressing issues. One of the main thrusts of the book is that "no regulation/no government" does not mean that speech is free. Quite the contrary, often times governments are needed as regulators in arenas specifically because the speech is not free.
Mr. Sunstein rejects all out the calls of some who would have a cyberspace free of government oversight:

Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.

I do contest with Mr. Sunstein over one point at least.
I'm not a lawyer, so it is probably dangerous taking on one of the most brilliant legal minds of our time, but I'll take my chances.

There is this passage:

[Television] Broadcasters could not exist, in their current form, if not for the fact that law and government are emphatically present. It is law and government that make it possible for them to make money in the first place.
What is true for broadcasters is also true for newspapers and magazines, though here the point is less obvious. Newspapers and magazines also benefit from government regulation through the grant of property rights, again protected at tax payers' expense... The most important reason is that the law has created a firm right of exclusion -- a legal power to exclude others -- and has given this right to both newspapers and magazines. The law is full prepared to back up that right of exclusion with both civil and criminal safeguards. No less than CBS and ABC, the Washington Post and Time are beneficiaries of legal regulation, preventing people from saying what they want to say where they want to say it.

(emphasis added) [Editor - earlier in the book, Mr. Sunstein had developed the idea that Freedom of Speech not only means that you can shout ideas from a corner, but that such a corner can be almost of your choosing - at least in a sufficiently vocal place where your voice can be heard by both detractors and those who agree with you - a sort-of targeted right of speech (my term)]

Television broadcasters are given their distribution channel. The airwaves are a public commodity that was given away to television stations. In the early 90s, government gave existing owners a right to produce digital television - Sen. Dole called this the "$70 billion giveaway." This gift, this guarantee of a distribution channel for information, this guaranteed-unpaid for monopoly over a particular band comes with responsibilities and, of course, with some public control and regulation. But with Newspapers and Magazines, the distribution is not given by the people. Exclusive newspaper rights to a city do not exist. Any newspaper with the proper funding can start up and challenge any other newspaper. The editors and publishers of the paper or magazine pay entirely for its printing and distribution. The exclusion of some people from publishing in a particular paper is merely an exercise of property rights. You have the right to say whatever it is that you want to say, but I, as a private entity, should not be forced to pay for you to say something that I disagree with. It's my money, my property, to be used as I see fit (with, of course, other proper limits on it - this should not be seen as an argument for unfettered laissez-faire capitalism. I actually do believe in some regulation of media enterprises).

So how does this extend to the internet? Mr. Sunstein uses an extension of this argument to show how we already have (through protection of property rights and speech) regulation on the internet. Governments protect us from viruses and protect domain names and addresses. But where Mr. Sunstein sees this as regulation, I see it as merely protection of property and speech. By having a government protect basic rights, we are not creating new regulations, merely having governments do what they are supposed to do ("That to secure these rights, Governments are instituted").

Some may see my argument as merely a semantic one, but I always find it important to distinguish what actually are rights and what are not. The book ( is a really good book that makes many excellent points. Mr. Sunstein argues how the internet, while it does connect society and people in ways that hasn't been seen before, it also divides people, as they read each morning the "Daily Me", hearing echoes only of their own voices and making themselves more and more extreme in their opinions. Hearing voices that you don't agree with is as important to democracy and as fundamental to freedom of speech as hearing voices that you do agree with.

I wonder if Mr. Sunstein was thinking of blogs and RSS/XML newsreaders when he wrote about this. Because often times that what blogs become. An interlocking community of blogs, whose authors all read each other, very many times do just echo each other, growing more and more obstinate in their mutual beliefs.

As I said, it's a dangerous place, this internet. The Demons of Democracy are everywhere.

The (hopefully) future Supreme Court Justice and current brilliant legal mind sent me an email in response.

Many thanks. An excellent question. Here's a crack at an answer:
What makes property "my" property? How do I know that my book, or my website, or my domain name is actually *mine*? I could just assert that it is a mine and claim a right to it. But if that's all I did, it's unlikely to be mine, unless I'm strong or well-armed. It becomes mine only if government and law are willing to create property rights and to protect them. Now I agree that this is a fundamental function of government -- and that governments are created to secure property rights. The only point is that this is a function of government -- and that it is a form of regulation, because it imposes all sorts of regulatory controls on all sorts of people. E.g., if people want to use my website, or my book, and try to do that without my permission, the government will regulate them via both civil and criminal law. That's good -- but it's still regulatory.

-- Hope that helps and many thanks for the generous and kind words.

-- Cass Sunstein

Good answer I think. Any reply I can think of starts waxing into metaphysics and out of law, and what he does say makes a ton of sense.
The argument against is that "ownership" has to, in a metaphysical/moral philosophy sense, mean something more than "has control over". Unfortunately, if you do not "have control over" something then any claim to ownership will simply be in vain. Government, the argument goes, keeps such claims valid - through regulation and enforcement.


Posted by DFMoore at 07:33 AM | Comments (8)