Monday, December 22, 2008

Good Samaritan Can be Sued, Despite Law

And here.

The standard tort law is that an Olympic swimmer may stare at a three year old girl drowning in a pool at his feet, and do nothing. He has no duty to rescue the little girl. He may not be sued after her death. (The innocent homeowner, and pool maker are to be sued, because they have money.) This is sick lawyer, disgusting outrage. It gets worse. If the Olympic swimmer sets out to do the right thing, leans in to pull out the girl out of the pool, he instantaneously sets off a duty to not do any damage. So, her dress tears as he pulls her out of the pool. He is liable for the value of the torn dress. He must pay. The rescuer that saved the life of a little girl must pay under the sick lawyer law.

It comes as no surprise then that Americans, as a rule, are better off doing nothing to help others, just watch them die.

What explains this insanity? The hierarchy of the criminal cult enterprise that is the lawyer profession wants no one but agents of central government helping others. Rescue by others decreases government employment.

Here are the consequences. It is inconceivable the 9/11 hijacking could have succeeded on a foreign airline. The Americans on the first two flights were lawyerized, and feminized by the lawyer. Only the threat of certain death prompted the brave passengers on the third flight to act. It is bad luck that hard working people died in the Twin Towers, and that the passengers saved lawyer dominated and run Congress from destruction.

At the V Tech massacre, only immigrants acted to save others. One held the door closed, and was shot and killed through it. Once the execution style shooting starts, does it not make sense to do something, anything. Throw a chair, a book, run around. Don't just stand there. No. The students were lawyerized and feminized. The female immigrant was less lawyerized and feminized than American jocks.

The judges on this court must be removed. Statutes should pass assessing substantial fines on anyone failing to attempt to rescue, however, negligently and incompetently.

I am surprised a lawyer has not sued the rescuers on the third flight of 9/11. Lawyers filing such claims should be beaten and driven out of town. Anyone not rescuing us from these lawyers should be assessed heavy fines. The judges must also be driven out of office, or impeached. They should go on trial for their decision, and nor for any collateral corruption lawyer gotcha. Their decision is the crime.

Friday, December 5, 2008

Review of Data on Medical Malpractice in Texas

That there is no blood money (money from the doctor's assets for huge awards), is confirmed. Damage caps have a beneficial if small effect.

Tort reform has always been a mildly effective remedy to the damage of medical malpractice business.

Problems not addressed:

1) The majority of medmal cases are weak or frivolous. Over 75% fail at every stage of litigation. The profit stems from the small number that generate an insurance award. The filing of a weak case may be ethical. However, it is lawyer malpractice.

2) All awards and all costs come from the public. Insurance covers these, but all insurance premiums come from doctor fees to the public. So these costs increase fees or decrease access. An example of a decrease in access is the growing rarity of family doctors and of maternity wards.

3) Medical malpractice prevents improvements in quality and reduction of medical errors. They force a cover up on health care providers. All advice to the contrary, such as the apology movement, serves the discovery aims of the medmal plaintiff bar. Because most cases are weak, the barest minimum of cooperation is justified intellectually and morally. Furthermore, total e-discovery should be demanded against the adversaries of clinical care, the plaintiff, the plaintiff lawyer, and the judge after any adverse ruling.

4) The doctrines of torts, especially the idea of a chain of causation, does not apply to modern remedies or deterrence. Mishaps are better understood as clusters of factors coinciding for a horrible outcome.

5) Medical malpractive may cost around 2% of the health care budget. However, its intimidation effect causes a 10% of wasted services in defensive medicine. Doctors are also afraid to fail to go all out for moribund, terminal patients out of fear of medmal claims or even criminal prosecutions by the lawyer district attorney. They torment dying patients with futile care. Futile care may account for 25% of the health care budget being wasted. So, ending medmal may reduce costs, not by 2% but by 37%, with no decrease in the quality of care.

6) A friend moved to another state. Years later, he tried to cancel his medical license in the former state. They refused, and delayed for months, after he insisted on deactivating it. That means that statistics that doctors have not moved away are false if based on licensing board numbers. They do not want to embarrass their political bosses, and just ignore cancellations.

What are better remedies?

1) End the privity obstacle to lawyer malpractice claims by adverse third parties. When a lawyer files a weak claim, the doctor has been damaged by lawyer carelessness and malpractice, and should be made whole. The litigation privilege is self-dealt by lawyers and judges, is unjust and violates the constitutions of the US and of many states.

2) If a patient suffers an injury by doctor error, they should receive Medicaid. Why should the tax payer be liable for the error of a doctor? The taxpayer is liable under today's medmal practice anyway, in the form of higher fees or decreased access to care. The Medicaid benefit for those damaged by medical error would be cheap, would provide care for the injury, and would cut out the massive rent seeking, worthless services of the lawyer, the court, and the insurance businesses. Because most of medmal awards are consumed by the costs of weak cases, fees, insurance profits, the cost of Medicaid benefits would be low. So, it could be easier, faster to get without conflict or time wasting for all parties.

3) In exchange for Medicaid benefits to all involved, regulators could demand total quality improvement. Every serious medical error deserves an airline crash style analysis of the multiple factors that clustered to cause it. Entire wings of hospitals could be closed by regulators until the causes were addressed. As a patient, that would be the greatest benefit. The results of the investigation should be posted to the web so that similar operations could benefit before they would hurt a patient.

Friday, November 28, 2008

The Civil Recourse Theory of Torts

If torts has validity as civil recourse, why are lawyers and judges allowed to maintain their self-dealt immunities? Why are victims of lawsuit abuse excluded from this liberal political order? For them, the recourse never happens. The overwhelming majority of cases are weak, fail. Yet lawsuit lottery playing persists. The filing of a weak case is lawyer malpractice, and torts should make its victim whole. The allowance of a weak case to get past first pleading is judge malpractice, and torts should make its victim whole.

Until these lawyer and judge self-dealt immunities are reversed, all claims of torts benefits represent lawyer bad faith.

So the Supremacy Voted for Obama, But to Get the Opposite of What He Promised

We last left you with the Supremacy partying with extreme left wing wackos and Hate America traitors, swarming from Harvard Law School to persuade people to vote for Obama.

In accordance with the Immutable Law of Hilarious Political Irony, the Supremacy had voted for George Bush. In his 2000 debate Bush promised, there will be no nation building under my administration. We got an orgy of nation building. We also got a doubling of the size of the Federal Register of Federal regulations. His Supreme Court declared carbon dioxide a pollutant. That means all being using aerobic respiration now emit a pollutant whenever they exhale and are subject to regulation by the Environmental Protection Agency. The deficit exploded to $trillion. The size of government exploded. The share of taxes paid by the rich, meaning most productive, that exploded. His Supreme Court also knocked criminal sentencing guidelines. These had decrease reliably the crime victimization rate by 40%. Now we have the Scalia Bounce in violent crime. The murder rate is suppressed solely by advances in trauma care, derived from the Iraq war. The number of violent crime victims saved by these advances will exceed the number of combat deaths by many orders of magnitude. And then, my personal favorite, I got an East German style banking system from Bush, where the government owns them, and tells them to whom to lend.

So does the Law apply to Obama. So far it does. I will be listing its effects as time passes.

1) We are the UNITED States of America, he said, promising to end partisan politics. So his first appointment is of Rambo Emmanuel, a vicious, lunatic partisan, cursing every fourth word, a ballet dancer who sends dead fish to people he finds offensive.

2) We will exit Iraq immediately. So he appoints the administrator of the Surge as Secretary of Defense. He appoints Hillary Clinton, the person who voted to fund the war, and criticized Obama's irresponsible plan to cut and run. We are going to be in Iraq for hundreds of years.

Wednesday, November 19, 2008

Why Can't the Navy of a Nation Just Eradicate the Entire Somali Pirate Population? Lawyers.

The money the pirates make likely funds the Islamic insurgency. If it takes over the government, Somalia will be a safe haven for Al Qaeda. That justifies the eradication of this terrorist threat.

Before that can be done, any lawyers preventing early intervention should be arrested, tried for treason, and executed. The arrest list should include all judges, legislators, and lawyer advocacy group leaders. There should be no immunity for people who will enable the destruction of the nation. This piercing of legal immunities should be based on policy considerations.

This article addresses confusion. It fails to explain, only the terrorist lover lawyer is confused, and no one else that cares about the survival of our nation. And another article.

Thursday, October 16, 2008

Like a Twilight Zone Episode

Ironic justice.

Update on October 31, 2008: Real justice arrives.

Thursday, October 9, 2008

Legalize All Adult Pleasures to Boost the Economy

That is all. Just add $2 trillions of wealth to pay for the bailout and to grow out trouble.

Tuesday, October 7, 2008

Do the Same to Government, Deduct Tax Payment for Government Never Events

Good idea. But remedies should be mutual to be fair. Some government never events for which taxes should be deducted:

1) exploding space shuttles;

2) not plowing a snow covered main street;

3) lawyer interference causing an overwhelming military to get bogged down, generating massive costs;

4) impeachment of a president over lawyer gotcha of misuse of words in a deposition;

5) forcing banks to lend mortgages in neighborhoods with irresponsible lifestyles;

6) failing to pilot test major laws that have unanticipated, reverse consequences;

7) not keeping campaign promises and doing the opposite once elected

Tuesday, September 30, 2008

Proper Elections Starting

1) Election is Saturday 12 AM to Sunday, 11:59 PM. No result allowed until Monday, to avoid influence of states with earlier time zones.

2) Run by Ebay or Amazon or equivalent with adequate verification of identity. People without credit cards may use a password and user name provided upon registration.

3) On the internet.

4) Polling places can be a laptop in a library, drugstore, church, or sidewalk. Parties may provide these in their favorable areas.

5) Amazon or Ebay in charge of keeping ballot secret. Neutral party may oversee and verify adequacy of confidentiality.

6) Same day registration. Either one is a citizen or nor. That may be verified electronically instantaneously.

The more people vote, the greater the validation of elected official actions.

Saturday, September 27, 2008

Differential Diagnosis as Causation Permissible

This ruling was based on a law review article, "Navigating Uncertainty: Gatekeeping in the Absence of Hard Science, 113 Harv L Rev 1467, 1474 (2000) (courts generally allow admission of differential diagnosis even when technique has not eliminated all alternative causes)." That means, the plaintiff expert could attribute the damage to the chemical used, with medical certainty and scientific evidence. The appellate court permitted the testimony of a differential diagnosis, with some chance the chemical was a cause, among others.

That makes the law review article private law making.

The decision.

If opposing experts testify in good faith, that is a scientific dispute. It is outside the subject matter jurisdiction of the court. Only additional scientifically valid data can resolve a scientific dispute, and not rhetoric. Such resolution lies outside the competence of the court.

If a case has opposing experts, it should be dismissed. Or else, one of the experts is not testifying in good faith, and should be punished.

Only cases that are within the knowledge of the jury or that have only one, unopposed expert should go forward. An example of a case within jury knowledge is a case of wrong site surgery.

The Supreme Court, in a case about punitive damages, held that civil defendants have a procedural due process right to a fair notice and hearing. It also holds, "The answer is that state courts cannot authorize procedures that create an unreasonable and unnecessary risk of any such confusion occurring. Although States have some flexibility in determining what kind of procedures to implement to protect against that risk, federal constitutional law obli-gates them to provide some form of protection where the risk of mis-understanding is a significant one."

Tuesday, September 23, 2008

The Supremacy Parties with Laurence Tribe Campaigning for Barack Obama

First some summary comments from the lawyer host. He sues doctors for a living and always wins $multi-million verdicts. Then some of the real scoop from the Supremacy.

"Professor Tribe was born in Shanghai, his grandparents survivors of the Eastern European pogroms and his parents refugees from the turmoil of World War II and the Holocaust. He attended Harvard College and Harvard Law School. He began teaching at Harvard Law School in his mid-20s and has been a professor of constitutional law there for some 40 years. He has written many books and texts on constitutional law. His latest book, The Invisible Constitution (Inalienable Rights), is receiving solid reviews."


Professor Tribe has had the privilege of teaching ConLaw to Chief Justice Roberts and many other leading legal scholars and leaders of the bar. He was also Barack Obama's law professor at Harvard.
Professor Tribe talked of his early impressions of Obama. He described Obama as the most impressive first year law student he has known in all his years of teaching. He recalls Obama as standing out for his intellect, his "moral compass" and his determination and passion. Obama worked as a research assistant to Tribe and Tribe came to know him well. Tribe's impression even then was that Obama had the capacity to be "more than just a Senator." Professor Tribe noted that Obama had many opportunities out of law school because of his excellent record in school, incuding his election as the first African American president of the Harvard Law Review. Tribe says he was impressed that Obama turned down lucrative offers at big firms in New York to return to Chicago and work as a community organizer. Tribe also recalled that he and Obama had many conversations as teacher and student on ranging subjects, not limited to the law. Professor Tribe noted, for instance, that in law school Obama expressed support for Israel, that Israel's right to exist should be deemed "sacrosanct." Tribe recalls the conversation coming up in the context of Tribe referring to Tribe's family members who lived in Israel. Professor Tribe has kept in contact with Obama over the years and has continued to advise him periodically throughout the campaign."

Professor Tribe explained:
-- There is a block of four, conservative members on the Court today, consisting of Chief Justice Roberts and Justices Scalia, Thomas and Alito. This block is already a dominant force on the Court and will be for some time, given the relative youth in particular of Justices Roberts, Thomas and Alito.
-- The next President will very likely name at least two Justices to the High Court. Justice Ruth Bader Ginsberg, appointed by President Clinton, is 75 years old and reportedly in less than great health. Justice John Paul Stevens, appointed by President Ford, is 88 years old. Both are reportedly eager to leave the Court and would likely do so in the next several years.
-- Justices Scalia and Thomas have made it clear that they want to overturn Roe v. Wade, the 1973 Supreme Court decision that established a woman's right to an abortion up until the fetus' viability. Justices Alito and Roberts, though they have not spoken out to make their views clearly known one way or the other, are, Professor Tribe said, just as clearly in favor of overturning Roe, based on their writings and their decisions in other cases.
I asked Professor Tribe, during the Q&A after his talk, whether he had any doubt whatsoever that there are now four votes on the Court for overturning Roe v. Wade. He said there is no doubt. Overturning Roe v. Wade may not come in one fell swoop. It may be a series of decisions. But with one more vote to add to this block, states will quickly pass legislation restricting how, when, or where an abortion may be obtained our outright outlawing an abortion. These state laws would then find their way to the Supreme Court for the ultimate review.
This is not a matter of pro-abortion or anti-abortion. One's personal views about abortion are one's own. The issue, as Professor Tribe frames it, is one of "reproductive freedom," that is one of whether a woman has control over her own body and whether a woman has freedom from government intrusion into decisions that affect her body and her health.
--There are other important social, economic and political issues that are close calls right now. The Court is very split right now, 5-4 on a lot of issues, ranging from habeus corpus (the right of an imprisoned person, including a suspected terrorist, to a hearing to determine whether the imprisonment is lawful); executive power (such as the limits on a president's right to fire independent agency commissioners, such as those serving on the SEC, the FCC, etc.); and other individual liberty, privacy and separation of church/state issues. These will continue to come to the Court and so the close split on the Court will almost certainly become critically important."

So much for the standard masking ideology.

SC circulated before the start of the festivities. He randomly spoke to two Ivy trained lawyers who happened to do white collar criminal defense work. That subject must be getting popular. What are the odds of consecutive defense people who did not know each other? One had a PhD in History. He did not know the word, reasonable, meant, in accordance with the New Testament. This is not from esoteric research. It is from Western Civ 101. Yet, no lawyer in the country seems to know that, even specialists in Medieval history. Quite an achievement of the cult indoctrination, to make people forget 10th Grade World History and freshman Western Civ. I asked him what he thought of this. If I were his client, I would insist on the personal destruction of all adverse parties, including the federal thug, and the judge allowing its rampage. Demand total e-discovery of their personal computers, one for improper motive and the other for bias. It was then he had somewhere else to go, "This is not legal advice, but you should never do that. The lawyer will be replaced by a higher up with even more destructive power. It is totally unprofessional to act that way." "Thanks, and take it easy," I replied.

Sunday, September 14, 2008

Media Bias by Omission. Pharmalot Bias and Censorship of Dissent and the Contagion of Lawyer Advocacy Methods

There are two people less moral than the lawyer, the convicted felon and the reporter.

Ed Silverman, the reporter, allows people on his blog, who bash drug companies to make thinly veiled death threats, use foul language, and harsh personal remarks against people who disagree with the theme of the blog, "drug companies are evil."

Ed Silverman refuses to allow any questioning about the ad revenues of his newspaper from health insurance companies. These are funding a campaign to attack the promotion of brand name medications. People like Senator Grassley receive generous funding from health insurance companies. He and this blog are putting researchers through the wringer for taking drug company fees, and failing to report them.

Ed Silverman will not address his duties under the journalist code of ethics.

"— Examine their own cultural values and avoid imposing those values on others.
— Avoid stereotyping by race, gender, age, religion, ethnicity, geography, sexual orientation, disability, physical appearance or social status.
— Support the open exchange of views, even views they find repugnant.
— Give voice to the voiceless; official and unofficial sources of information can be equally valid.
— Distinguish between advocacy and news reporting. Analysis and commentary should be labeled and not misrepresent fact or context.
— Distinguish news from advertising and shun hybrids that blur the lines between the two.

— Deny favored treatment to advertisers and special interests and resist their pressure to influence news coverage."

He removed comments that question the racial motivation of these campaigns. Because dark skinned people are more likely to quietly accept the denial of health sustaining brand medications by insurance providers, the Medicaid program is being targeted, along with its doctors who prescribe to dark skinned people exactly the same medications that they do to white people.

The lawyer advocacy culture of providing facts that supports only one's side and seeking to exclude any rebuttal has spread to the media. It expresses its bias by omission. Simultaneously, it maintains the appearance of virtue, saying, everything we say is true. It is a form of hypocrisy and bad faith learned from the lawyers.

Exclude Plaintiff from the Trial for Prejudicial Appearance

Appearance and Behavior of Plaintiff During Liability Trial Phase

The Supreme Court has held that civil defendants have procedural due process rights, that include the right to a fair hearing. Outcome and hindsight biases violate this right. Outcome bias cannot be overcome. Abnormal appearance may inflame the jury or induce outcome bias, in jurors, judges, witnesses, and even in experts. The plaintiff lawyer has intentionally selected cases to pursue based on appearance. Cancel this established tactic to induce unjust outcome bias.

An appellate court has affirmed such an exclusion. A victimized appearance may inflame the jury (1) and may induce hindsight and outcome biases (2) in any party in the case, including jurors, judges, witnesses, and even experts (3). Such bias and jury inflaming effects violate the procedural due process rights of the civil defendant to a fair hearing (4). Such a right has been upheld by the Supreme Court of the United States (5).

If the plaintiff has an appearance implying victimization, the doctor defendant may ask the defense attorney to have the plaintiff excluded from court during trial, and from being videotaped in a deposition for court replay (6). If the behavior of the plaintiff is challenging or disruptive, the doctor defendant may have defense lawyer move to force his appearance in court or on videotape deposition.

If the plaintiff lawyer points to the absence of the plaintiff, a mistrial should be requested, with costs assessed to the personal assets of the lawyer, and not of the firm. The defense should not give notice of this plan, but spring it as a gotcha. We should also request criminal contempt charges with jail time for negating the judge's decision. If the motion fails, it still preserves an appellate point, that can go the Supreme Court. The cases of the SC have all addressed punitive damages. The cited case forbade exemplary damages payable for damage to people not party to the case. Its reasoning was such damages represented a taking without opportunity to oppose, a violation of procedural due process. If you have one due process right, do you have all of them? These include the right to not be subjected to established biases. No one has used cognitive biases as an appellate point. If you cannot find a cognitive bias in every tort case, you are not trying.


1. Rule of Evidence Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time

Although relevant, evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence…. "Unfair prejudice" means a tendency to suggest decision on an improper basis or to divert the jury's attention away from its duty of weighing the evidence impartially.

2. http://en.wikipedia .org/wiki/ Hindsight_ bias http://en.wikipedia .org/wiki/ Outcome_bias

3. http://www.mja. issues/176_ 06_180302/ hug10592. html ; http://www.ajronlin content/full/ 183/3/557

4. http://en.wikipedia .org/wiki/ Due_process# Procedural_ due_process

5. http://www.supremec opinions/ 06pdf/05- 1256.pdf . Due Process Clause applies to civil defendants.

6. Green v. North Arundel Hospital , 126 Md. App. 394, 730 A.2d 221 (1999). Appellate court upholds exclusion of plaintiff on respirator from any appearance at trial. "…his presence would be overwhelmingly prejudicial, that he required continuing nursing care and extensive medical equipment, and that the equipment would generate noise and distract the jury. Although acknowledging that Darwin 's presence might be relevant to the issue of damages, NAHA asserted that his presence was irrelevant to the issue of liability."

Monday, August 25, 2008

Proposed New Method of Law School Ranking

What is the salary of the alumni? That is the sincerest form of valuation by the public. A second track for low paid specialties would ask, what is the budget for which the alumnus is responsible? That is a second best measure of the quality for the government worker.

By either valid and sincere measure, the Yale graduate is likely at the bottom of the barrel of real value to the public. So, some Mississippi divorce lawyer provides far more value to the public than a Supreme Court Justice by this measurement. At the intuitive level, that seems absolutely correct. The family destroyer is doing far less damage than the nation destroyer on the Supreme Court.

Thursday, July 31, 2008

Deduct Benefit of Product from Damages to Avoid Unjust Enrichment

The verdict is deeply embarrassing to the civil justice system. It has no scientific validity, nor any logic, just based on the facts in the article.

But let’s assume, the verdict is absolutely correct, and we are in the damages phase.

The plaintiff lost a specific amount gambling. 1) Should any gambling winnings go to the defendant?; 2) Should the value of the benefit of the medication be deducted, and reimbursed to the defendant if exceeding the value of the lost? He had Parkinson’s disease. Say, it was bad enough to retire him. The medicine improved him, and allowed him to earn again, to enjoy activities, to have sex, to avoid placement in a nursing home, to go out as a tourist, to run about with family members, to be funny, to sleep better. Those benefits have value.

If the plaintiff gets to collect for his loss, but does not re-imburse the defendant for the benefit, the plaintiff has been unjustly enriched.

The damage phase should also discount for discovered factors not caused by the defendant, 1) the opening of a casino quadruples the pathological gambling rate within 50 miles; 2) the plaintiff had a pre-existing condition that increased the risk (true here); 3) the casinos violated any policy or regulation designed to exclude pathological gamblers (warrants a per se cross claim); 4) the plaintiff had fun gambling, a benefit, not a damage.

Monday, July 7, 2008

Editing Internet Content Should Waive Immunity as a Common Carrier

The idea was that the telephone company should not be sued if two users plotted a bank robbery on its telephones. It is common sense to apply the same immunity to internet service providers (ISP's).

If the telephone company were to censor back robbery conversations, then its immunity should end. The same with ISP's.

Tuesday, June 24, 2008

Another Duty to Google: Community Standards from Search Results


We discussed the duty to Google to find a defendant, to pursue the process of informed consent. In this case, the community standard of obscenity is coming from the results of search engines.

Friday, June 13, 2008

Judge Kosinski Has Caused a New Absolute Duty of Lawyer Due Care

From this point, every lawyer has an absolute duty to demand discovery of every judge's computer and all electronic activity in e-discovery. From a rent deposit dispute in small claims to a certed Supreme Court appellate case, the lawyer must demand all electronic activity of the judge on all government and on all personal computers, and on all public computers used by the judge.

Update (September 12, 2008): Study shows costs of e-discovery are used as a tactic to force settlement to avoid its costs. The client has a right to e-discovery of the adverse lawyer, to search for an improper motive. The client has a right to e-discovery of the judge, to search for bias. It should become legal malpractice for the lawyer to not demand these discoveries of the other side.

Update (May 18, 2009): The use of blogs by judges may represent ex parte communication. Discussed here and in this article, Rachel C. Lee, Ex Parte Blogging: The Legal Ethics of Supreme Court Advocacy in the Internet Era, 61 Stan. L. Rev. 1535 (2009).

Thursday, June 12, 2008

Supreme Court Rent Seekers: Lawyers Will Get Their Jobs

The Rent Seeking Theory of Appellate Decisions states that the decision will increase lawyer employment. After the next major terror attack, Federal marshals must arrest the entire Supreme Court. Brief excerpts from their decisions get read in a brief trial for insurrection against the Constitution, then they hang outside the courthouse. Their bodies stay there a month to send a message to the profession.

Wednesday, June 11, 2008

New Jersey Court Invents a New Liability, That of the Packager

This liability would be analogous to permitting a defamation claim to proceed against the printing company of a newspaper.

Saturday, June 7, 2008

Sam Kamin Finds Teaching Sentencing Guidelines Distasteful

His profile.

In the 1970's and 1980's, the public got outraged about the soaring crime rate. It stemmed from the crippling of the criminal law by a relentless series of attacks by the Supreme court on the prosecution. None had the slightest justification in the Constitution. All increased lawyer employment. The criminal is a valuable commodity to the lawyer. Any remedy that scares or deters the criminal decreases lawyer employment.

The Executive branch named a group of judges to write Sentencing Guidelines. Congress enacted them. The criminal lover judges lost their discretion in sentencing and could coddle criminals less. As a result, the most reliable measure of crime burden, the DOJ Crime Victimization Survey showed a significant drop in crop in the 1990's. Violent crime decreased by a half.

This large drop could not be tolerated by the lawyers on the Supreme Court, as a threat to lawyer employment. The political affiliation of the Justices made no difference. Scalia voted for or wrote a series of decisions that gutted these guidelines pretextually. These decisions were Apprendi, Blakely (written by Scalia), Booker, and Cunningham.

Since this series of pro-criminal decisions, 1) sentences have decreased; 2) prosecutors have made lower offers in plea bargains; 3) the cost of trials has likely increased; 4) multitudes of vicious predators have been released; 5) the murder and other crime rates have increased.

Why would conservatives want to release so many vicious predators, and hobble prosecutors? 1) To generate lawyer jobs; 2) to effectively immunize the lawyer client, the criminal; 3) the crime victim generates no lawyer fee, and is invisible to the lawyer rent seeking Justices.

It takes about 10 years to fully experience the impact of a law. By 2010, the crime rate may return to that of the ultra-violent 1980's, when the liberal lawmaking of the 1960's and the 1970's bore its ripe fruit.

Friday, June 6, 2008

Superb Brief Objecting to Class Action Settlement

Very nice model for future such objections.

Thursday, June 5, 2008

Posner and Hills: Intellectuals and Anti-Intellectuals

Hills objects to intentional impenetrable intellectual writing. Posner defends such writing as not a sign of bad faith.

The problem is that both are lawyers. Those with filthy hands should not point fingers. In the law, legal language inscrutability is a bigger problem for those being put to death, and those losing $billions due to misunderstanding, esoteric rules no one understands, and lawyer gotcha. The latter is a form of bad faith.

1) The French administrators of England taught the lawyer how to speak incomprehensibly. Dense language generates income and power.

2) Such dense language is a form of rent seeking, requiring hiring the lawyer as a decoder. Judge Posner may have an IQ of 300, but he forgot this theory in his law and economics book. It explains most anomalous lawyer policies.

3) The public owns the law, as if a toaster. It is his chattel. The dense language of the lawyer represents a conversion of the chattel by the law technician. As such, all lawyer utterances with readability scores above the sixth grade should be unlawful, and void per se. It should be a presumption that such language is in bad faith and a form of theft.

Medical Apologies

If the lawyer were writing in good faith, he would advocate excluding apology facts from future use in litigation. That would promote maximal disclosure.

If the data on apology are accurate, they show most cases are motivated by animus, curiosity about the bad outcome, and vengeance. These are improper motives for a tort lawsuit.

Most plaintiffs are scuzzy dirtbags, rejected by even greedy plaintiff lawyers in 95% of cases. If apology becomes mandatory, the doctor would be apologizing all day to vengeful dirtbags. This is just more lawyer oppression of doctors.

I would like to see a rule requiring apologies and an investigation in the 75% of medmal cases that are weak. They fail at that rate at every stage of litigation.

Wednesday, June 4, 2008

Member of Merchant Class Getting Fed Up

The Church offended them the same way, 700 years ago. The Executive branch beheaded part of the hierarchy, and took their lands.

This time is approaching fast for the replacement of the church as oppressor, the lawyer hierarchy. Same approach seems reasonable.

Monday, June 2, 2008

Topics for Future Philosophy and Law Conferences

1) All Lawmaking, Including Appellate Decisions and Regulations, Is Human Experimentation

2) Scholasticist Doctrine, Incompetence of Law, and the Establishment Clause

3) Is the Death Penalty Punishment?

4) The Dose-Response Curve of all Legal Remedies

5) Should Law Become More Probabilistic?

6) Justify Self-Dealt Lawyer, Judge, Legislator Immunity for Proper but Harmful Outputs

7) Immunity and Liability Are Stealthy, Unauthorized Industrial Policy

Sunday, June 1, 2008

Rutgers Criminal Law and Philosophy Conference, May 30-31, 2008

Naturally, the most fun and insights were to be had in the breaks and at lunch. I express my gratitude for the great hospitality and attention these experts afforded an amateur.

In no order.

1) New Jersey prosecutors are at will employees. They cross the boss, they are at a loss.

2) Decriminilization of adult pleasures was common ground. I disagreed, advocating the buyer have a license revoked after getting in trouble from losing control of the pleasure. I may write a more detailed argument latter.

3) As an extreme utilitarian, I advocated all crime become strict liability crime, and that sentencing address the person, less the act. Each conviction stands in for dozens and hundreds of crimes, for which the criminal has virtual immunity.

4) There was an objection to allowing suing prosecutors and judges. The lawyers could support such litigation but only for misconduct, not for negligence. They are too busy. Naturally, all productive members of society are busier than they are and should have their immunities for the same reason, too busy.

5) No one knew that "reasonable" meant, "In accordance with the New Testament." They explained that the reasonable person had to be a fictional character to maintain the objectivity of the standard. If one could think about how a friend with great common sense would have behaved, it becomes a subjective term.

6) Inculpatory ignorance of non-criminal law may serve as a defense outside of a criminal trial. No one knew the case law in a regulatory dispute.

7) We argued the death penalty. Knowledge of the date is cruel. The method is kind, being less and more briefly painful than the deaths of 90% of us. There is a distressing error rate.

Tuesday, May 27, 2008

Rutgers Criminal Law and Philosophy Conference - Intentions Irrelevant to Permissibility

Some problems.

I think it says this.

"I am a moral philosopher. Moral philosophers should run criminal law making. I believe intention is relevant to permissibility."

If I got that backwards, tell me. The article is a long ipse dixit. It provides no external validation.

It has to address these objections.

1) Minds cannot be read with current technology. Most of the criminals are drunk or impulsive, and have little intent. Recklessness is weasel slinking away from intent.

2) Criminal Law is to remedy physical harm, not thoughts. The parameters of coverage of the criminal law contradict the argument that intention is relevant to permissibility.

3) Of the five goals of the criminal law, only safety is worth anything to the owner, the public. So, if haystacks should not be burned, criminalize open flames within a five feet radius by anyone. There is no intent in that law. The intent to impress her boyfriend by aiding the enemy still deserves hanging. I want to impress my girlfriend with my ninja skills by ripping out a man's heart with bare hands. It is a form of courtship, not an intent to harm.

4) If the wife is poisoned, the neighbor that bought the poison is no more guilty than the store owner that sold it. If the neighbor or store owner are guilty of anything, it is failure to report a plan to kill. There is no such duty under the misguided administration of the law by the American lawyer.

5) The mens rea is Latin, the language of a church. The mens rea came from a priest, Henry of Bratton. He learned it from 13th century Scholasticist philosophy, and studied with St. Thomas Aquinas. All Latin violates the Establishment Clause. The mens rea violates the Establishment Clause. Even the Church said, God would read intent in heaven. Not even the medieval church claimed man could read minds, as the lawyer claims. Henry just invented the mens rea. If you say, what's wrong with established moral principles, that a church just happens to embrace? OK. What is wrong with a Koran based, Arabic strewn jurisprudence? I read their hornbook, and liked most of it. By its Scholasticist origin, intent is unlawful in the criminal law.

6) Not only does the lawyer want a small elite who have never grown up to run the law, he wants a layer of complexity and supernatural garbage from 1250 AD that cannot be questioned because fictional. That layer will increase lawyer employment. Self-dealing without disclosure is bad faith. Put a bold black box warning, in big print, at the top of the article, "This article promotes the power of moral philosophers (me), and the rent seeking of the lawyer profession. Its content will maintain criminal victimization."

7) If the lawyer wants to get rid of punishment, no problem. It is also an obsolete relic, a form of social immaturity. Incapacitation, including large numbers of executions should replace it. As behavioral technology improves, the execution rates may decrease. Execution would solve the problem of the person, the biggest problem in crime. This means one would die for a having violent form of antisocial personality disorder, made a status crime, for the safety of others. Death is not a punishment. It is an expulsion. The lawyer may object, but mostly because it gets rid of the lawyer customer and decreases lawyer jobs. The Supreme Court would have to be emptied of lawyers to reenact status as a crime. For example, Scalia set loose a bigger number of vicious predators than Brennan. We are now undergoing the Scalia Bounce in the murder rate.

The biggest objection: Intent is church doctrine and unlawful in this secular nation. Repeal the Establishment Clause if intent is relevant to permissibility.

Monday, May 26, 2008

Criminal Law and Philosophy Conference at Rutgers

I will try to report on this conference. I may be well on my way to getting expelled before it begins.

Here are questions for Prof. Garvey about his paper.

1) What is will, where is it, how can it be assessed, within Daubert standards? Is it a synonym for impulse control? Impulse control is measurable with a timer, and has scientific validity. Will seems fictional, an impermissible utterance in a tribunal.

2) You are defending a serial killer. He controls himself for three months, then cannot contain his urges to kill for sexual pleasure. He has killed many little girls for sexual pleasure, made possible only by slitting their throats, his having the disability of sadism. You are addressing a jury. Explain the proposal of your paper which requires the defendant receive credit and mitigation for the three months he spent controlling himself. If the defendant starts a criminal career at age 25, how does one explain two decades of synchronic self-control, now gone?

3) If diachronic self-control seeks to exercise more external control in the service of self-control, isn't the deterrent effect of punishment an asset, and not an injustice? If the analogy is to losing control of an exploding bladder, then isn't jail like a Depends diaper, a remedy?

4) Doesn't this proposal add to the great burden of nonsensical mentalism? Not only do we now have to read minds for criminal intent and the mens rea, but now, also the attempt at control.

5) About half the perpetrators and about half the victims of murder are legally dunk. Please address intoxication, which is very prevalent during crime.

Additional questions from the audience:

1) What evidence beside defendant protestations could be used?

2) Give us the judge instruction to the jury.

Here is a proposed enhancement:

The much validated, Daubert safe, word, "impulsivity," is an alternative to the fictional, Daubert toxic, Aristotelian, "will."

How about this objective alternative to the restraint of will? "Treatment."

The defendant acknowledges he has a problem with impulses. He seeks formal treatment. This can be medical, faith based, support group based. The evidence is not defendant testimony but treater testimony. "He admitted having a problem. He showed up for treatment. He tried to comply with our suggestions."

Rich defendants are already doing this. Didn't Spitzer enter treatment for sex addiction after the FBI exposed his side activity? Other get religious. Any objective evidence of effort should be rewarded. The reason is that treatment has some chance of success, accountability of provider in torts, is cheaper than jail, and is proven to return about $7 for $1 of cost.

Friday, May 16, 2008

California Supreme Court Permits Homosexual Marriage

The Rent Seeking Theory predicted this ruling. The Theory also predicts that an uniformly conservative US Supreme Court will uphold it against any challenge. The rate of marriage among heterosexuals has dropped. Divorce rates may be dropping. That means family law business is suffering and must find fresh business. All permutations of marriage, including marriage to animals and other phylla will follow. That trend will be driven by the disappointing increase in business from homosexual couple. Homosexuals are not stupid. They will not get married in the numbers anticipated. One of the most intelligent of lawyers finds a way to defend the legitimacy of a decision that reversed a referendum, his being a total victim of the indoctrination of the criminal cult enterprise that is the lawyer profession. He states, these justices are elected and accountable, unlike those on the Supreme Court.

If someone wanted to make homosexuals suffer, this decision could not be outdone. The lawyer is not really interested in the marriage. It is interested in the divorce of homosexuals.
With their high death rate, and above average personal assets, the inheritance will also provide a lot of work for lawyers.

Now, if a homosexual applies for a job, he gets snapped up, as a great worker. This results in a standard of living a full standard deviation above the heterosexual mean. Once this decision has percolated for ten years, homosexuals will become less employable. One applies for a job. It is impossible to know and impermissible to ask if he is married. Therefore, one does not know if there is spouse with AIDS who will break the health insurance budget of the company. Most employers will prefer to just not hire them.

Wednesday, May 14, 2008

The Standard of Professional Care in Trial Advocacy

The criminal prosecution sets the standard of performance for all trial advocacy: 75% success rate.

1) The prosecutors are recent law graduates with little experience.

2) They get paid a low wage.

3) They carry dozens of cases at a time, if not hundreds.

4) Their research budgets for each case have 4 numbers if lucky.

5) The defendant has no morals, and is strongly motivated to evade punishment.

6) Their lives get threatened.

7) Their charges contain more elements.

8) The burden of proof is higher than in other actions, beyond a reasonable doubt.

9) Every element must be shown to have been intentionally done.

10) The element and the intent must be proven beyond a reasonable doubt.

Any other type of court not meeting the 75% rate of success for the plaintiff implies a subpar performance of the judge. The judge has allowed poor performance by the plaintiff side. If the rate of verdicts favoring the plaintiff falls below 75% over two years, the judge should be removed by the administrative judge automatically.

Why Torts Die, According to Yale Indoctrination Victim

This article casts suspicion on all torts today. They may all be pretextual (false use of the law).

1) Yet, I don't know why it takes 74 pages to miss the self-evident. Those without assets are judgment proof. He also missed the Rent Seeking Theory as Grand Unifying Theory of Not Just Appellate Decisions, But All Lawyer Decisions (the so called GUTNJADBALD).

2) Here is something else he missed. Goofiness of torts, rejected by juries. It is goofy to believe that rare accidents can be foreseen. That is the central doctrine of negligence. I demand that the authors give me the four numbers for tonight's lottery. They are far more likely to correctly do so than to foresee a car accident at the most dangerous intersection in the nation.

3) Why do scams die? They did not produce enough money for the effort of the scammer. Or, people learned from experience, and stop responding to the scam. Scholasticism methodology of church and law is not just a false theory, a scam, but is also a robust business model. So, many heretics burned at the stake were wealthy. The church seized their property. The church has moved on from Scholasticism, the best of thinking and technology of 1250 A.D. It did so hundreds of years ago. It apologized for the Inquisition, the business end of Scholasticism. The goofy, ridiculous, American lawyer continues to milk its Rent Seeking strengths.

The sole remedy is to end all judicial and governmental immunities. That fairness would accelerate the cycle of tort death by raising the risk cost of false torts. It would bring the great benefits of torts to those that inflict them on others. See how they like it.

Reverse Hans by statute. Repeal the corrupt, self-dealing Eleventh Amendment. Pass Constitutional amendment ending all self-dealt, lawless judicial immunities. Pass another ending res judicata, which is just another self-dealt, corrupt judicial immunity. The oppressors on the bench are not just incompetent, but also intentionally predatory. They make stealthy industrial policy without competence nor authority. They transfer massive amount of funds from the productive to the parasitic, mostly to lawyers.

The sole justification for such immunities is that the immune sovereign can never be wrong, speaking with the voice of God, a violation of the Establishment Clause. This article shows, the sovereign is often wrong, and reverses himself.

So, it is learned that the justices knew that smokers cost less to government by their earlier deaths, not more, as claimed in the tobacco settlement. All tobacco money gets returned, with triple exemplary damages for scienter. Take a state down. Bankrupt the voters that elected these incompetent, self-dealing predators to the bench. To deter.

The tort claim is a product, dangerous in its intended use. This article shows, they get defective and obsolete.

Tuesday, May 13, 2008

Rent Seeking Theory Explains this Weasel Outcome

The Justices do not even have to take responsibility for it, by recusing themselves with bogus ethics pretexts.

However, massive lawyer make work now proceeds.

Friday, May 9, 2008

Editors of JAMA on Industry Influence on Medical Science

Eleven remedies.

1) List all trials with the International Committee of Medical Journal Editors.

2) Have all authors specify their contribution.

3) All affiliations and funding of for profits.

4) Consider funding when deciding to publish.

5) No data collection or analysis by for-profit company.

6) Statistics must be done by someone not employed by for profit.

7) Report and punish any author failing to report conflict or not doing the work.

8) Ban anyone reporting confidential information from a peer review to a for profit company.

9) Fire any editor who allows a for profit to manipulate a decision.

10) No for profit input into educational programs or materials.

11) All doctors are to be free of influence including that of service on a speaker's bureau.

"When integrity in medical science or practice is impugned or threatened - such as by the influence of industry - patients, clinicians, and researchers are all at risk for harm, and public trust in research is jeopardized."

I guess the AMA does not understand something. This is America and not Cuba. These are remedies where no harm has taken place. They are left wing ideologue bullying.

Here is another remedy. I will be requesting the removal of this unAmerican left wing ideologue from the editorship of JAMA.

Monday, May 5, 2008

Recovery from US Government for Frivolous Fraud Prosecution

A government expert witness contradicted another. The claim had no merit. U.S. v. Mark Capener, M.D.

The court granted a third of the legal costs.

When the lawyer bully comes calling with all the power of government, the innocent defendant should always attack back. Seek discovery of the government lawyer for improper motives. Then countersue the government thug lawyer. Seek full discovery of all experts collaborating with the government lawyer. Always file non-frivolous, well argued ethics complaints, one at a time, in each state of licensure, once a month. The innocent defendant should always have company in the world of uncertainty and pointless, ruinous expense.

The government has dealt itself immunity for interference with contract.

All legal immunities should end. To deter the unjust government lawyer bully.

Sunday, May 4, 2008

We Predicted This

You must avoid harm to plants. Animals are getting civil standing in the future. This report sets up plants to get standing. They are even better clients than raucous animals. They do sit there "just like potted plants." This last insult is phyllist.

Next? Bacteria. We will need a fair hearing before using antibiotics to summarily wipe out bacteria by the trillion or to wipe a kitchen counter with a weapon of mass bacterial destruction (WMBD's) such a bleach on a wipe cloth.

Natural Experiment: Prostitution Legal in Brazil

What is the harm prevented by laws prohibiting prostitution? Is there more of that harm in Brazil or Nevada? Most of the research on this question has come from extreme left wing feminists with a hate filled, biased agenda, devoid of credibility. Is there any research that does not carry this baggage, and controls for social class and education?

Improper to Recuse Oneself as Judge Over Pay Dispute

I disagree. The judge's hostility toward the legislator may prejudice the trial of the client of the legislator.

Saturday, May 3, 2008

Homosexuals Bully the APA

They foreclose a balanced debate. Here . Here.

More homosexual intimidation and prevention of free speech. Here.

All PC is case. Because rent seeking judges will destroy entities that resist the lawyer generation of discrimination cases, self-censorship is the sole prevention. While I believe everyone should be left alone, who does not harm others, the left wing ideologues believe only intimidation can make their point. They miss the facts. The facts deserted the left 100 years ago.

Sunday, April 27, 2008

Drug Company Support of Continuing Medical Education II

Officious, left wing ideologue hypocrite Robert Steinbrook, MD of left wing, Hate America, Dartmouth University, goes apoplectic over sponsored continuing medical education. Meanwhile, he has no trouble taking money from the left wing Macy Foundation to further their left wing agenda. They fund only politically correct grants, under their Harvard indoctrinated graduate infiltrated administration. So Steinbrook' s credibility is nil by his bias. This article has the credibility of a Ford salesman criticizing Toyota cars. The criticism is pretextual and self-interested.

He shows no harm to patients nor to doctors. Yet, the remedies gets threatening. Educational grants by drug companies will be violating Federal anti-kickback statutes, and the False Claims Act. They risk fraud and abuse. How can these be avoided? Funnel pooled grants through agencies such as presumably his own, eliminating the competition to medical school CME activities from far more competent commercial providers.

Meanwhile, JAMA, that left wing propaganda organ, is filled with drug company advertising. No mention of that anywhere. JAMA also provides its own CME, and is a competitor to those it attacks.

Here. I am still looking for the disclosure statement of the conflicts of interest of Dr. Steinbrook, the Macy Foundation, and of JAMA.

Wednesday, April 23, 2008

Court Rules in Favor of the Lethal Injection

This ruling is in accordance with the Rent Seeking Theory of Appellate Decisions. Had the Court ruled otherwise, all executions would have stopped. That would have stopped the huge lawyer business of appealing death penalty convictions. Each murderer is worth a $ million to both sides of the death penalty.

Here is an alternative. Three strikes, and you're dead. One, two, three convictions for a violent crime, Sayonara. The main theory supporting that approach is that the deceased have a low rate of recidivism for violent crime. That approach would also end the dilemna of the high rate of death penalty convictions of innocent people, roughly 20%. Even if the death penalty gets applied to a person innocent of the third crime, he merits the penalty by the other two violent crimes. The count should start at the earliest age tolerable to the public. Fourteen, the demarcation of biological adulthood, carries a lot of logic. This ends the injurious career of vicious people before they have had a chance to commit their hundreds of crimes a year. This is a victim safety approach. Gangs would end by attrition.

The problem is that lawyers would have no customers left. But the current balance of terror maintained by the lawyer, especially oppressive to minorities, would shift from the victim to the violent predator.

Tuesday, April 22, 2008

Suit Opposes Denial of Off Label Prescribing by Medicare


The cancellation of a prescription by refusing to pay for it is the practice of medicine.

The Supreme court has held a half dozen times, clinical judgment has presumptive validity and requires deference.

There is interference with the contracts in effect between doctor and patient, CMS. That is an intentional tort. The contractor of Medicare should not have government immunity from such a claim.

Saturday, April 19, 2008

Yale Clerks Correlate with Reversal of Judge Decisions on Appeal

Here. Comments by former students confirm the ideological use of the law taught at Yale Law School. It should lose its tax exempt status, and all its government funding should stop.

Thursday, April 17, 2008

Review of Malpractice Maldistribution

Here, and here, by Ted Frank.

And by Eugene Volokh, here.

With regard to the lawyer statistics, including Volokh's statistical sophistry.

If 100% of the medmal plaintiff lawyers are responsible for the 75% failure rate of their weak cases, shouldn't they all lose their licenses? I like a three strikes law. Lose three, become a high school history teacher.

This is even better. To deter. Oppose corporatist tort reform, an ineffective lawyer Trojan horse. End all self-dealt lawyer and judge immunities. Then sue them personally into stopping their misconduct. All lawyers and judges carry massive insurance policies to make whole the victims of their lawyer carelessness. This includes the victims of a false verdict, breaching res judicata, as warranted. Classes get covered. So the 1000's of chemical workers losing their jobs after the company bankrupting false breast implant verdict get compensated for lost wages.

These lawyers sure have dozens of duties to the defendant, enumerated in the Rules of Conduct, Evidence, Civil and Criminal Procedure. These are formal statutory duties and settled Supreme Court holdings. Deter the self-dealing tort feasors.

Wednesday, April 16, 2008

Drug Company Support of Continuing Medical Education

The left has been on a campaign to end such support. The efforts get reviewed, here. These include self-regulation by companies, anti-kickback enforcement by the Justice Department. They further propose ending all commercial support, refusing to accredit any sponsored activity, allowing contributions only to central depositories, to be run by left wing ideologues and to plunder them, increasing disclosure requirements. The JAMA authors find the current situation, "... at best very troubling."

There is only thing missing. The fact of any harm shown either to patients, or to costs.

There are a couple of problems not discussed in the left biased JAMA.

1) These measures interfere with clinical judgment, and violate about 6 Supreme Court decisions holding for a presumption favoring clinical decisions. The most famous is Roe v Wade.

2) There is a racist component. No one cares about the use of brand medications for middle class white people. When it comes to minorities on the public insurance, doctors cannot be trusted to control themselves. They helplessly write for brand names after receiving a pen or a sandwich. This implies that minorities need only generic medications with troubling side effects, that could not get approved by the FDA with today's standards, that pet owners would refuse.

Valid Point: Every Penny of Health Costs Comes from Workers

Here. The employer gets his health insurance funds from the productivity of the workers, as does government. There is no shared responsibility. The rise of health costs faster than wages and productivity increases cannot be sustained.

There is one thing the article does not mention. Allowing workers to control their health expenditures entirely, instead of tyrannical government officials. Workers would then have a vested interest in pushing costs down. The biggest savings in health costs comes from improved health.

Monday, April 14, 2008

The Lawsuit is a Product

The lawsuit complaint is a product, like a toaster. It can thus be “defective.” Several features support this assertion.

1) The complaint is not a written expression protected by the First Amendment. It is a tool to make money. When a writing is a tool and not an expression, it becomes a product subject to standard of care. Aviation maps that were incorrect and resulted in a crash were deemed to be defective products (1).

Mushroom textbooks that caused poisoning resulting from error in the illustration were deemed to be expression and protected by the First Amendment (2). They were said to be like books about aviation maps, not the aviation map product itself. One does not peruse nor read a complaint to learn of the author’s feelings and ideas. The complaint is a tool that is used for an effect, as a map is used to find a landing strip.

2) The dictionary definition supports (3): “a thing produced by labor.”

3) The legal dictionary supports (4): “something that is distributed commercially for use or consumption that is usually 1) tangible personal property 2) the result of fabrication or processing and 3) an item that has passed through a chain of commercial distribution before ultimate use or consumption.”

4) The Supreme Court agrees it is manmade items (5). “... respondent's microorganism is the result of human ingenuity and research.” The lawsuit is similar to a weaponized virus and artificial microbes, originating in human manufacture and having similar effect.

5) Intellectual property law supports (6). One will likely not be able to copyright a lawsuit complaint, as one might a pantomime or a book. Once a lawsuit has been committed to paper or other medium, one may apply for an utility patent a lawsuit if the complaint has originality (7).

6) A patent is a legal filing similar to a lawsuit. A patent holder was sued for product liability for a faulty design. The appellate court threw the case out for policy reason to avoid discouraging the filing of patents. It indicated that a patent was not an expression protected by the First Amendment, as claimed by the defendant (8, 9). On the other hand, the placement of a trademark, without involvement in any aspect of production, led to liability for a defective gift umbrella (10).

7) The lawsuit is heavily advertised and solicited.

8) It is manufactured on a custom but mass basis, using a format similar to the chassis of a car, upon which custom requests of the customer are loaded.

9) It is portable and delivered.

10) It is for the purpose of increasing income of lawyers.

11) It is purchased by the plaintiff, and made the subject of a contract with the lawyer.

12) It is aimed at the defendant like a gun. As does a gun, it requires a license.


1. Brocklesby v. United States, 767 F.2d 1288, 1294-95 (9th Cir. 1985), cert. denied 474 U.S. 1101 (1986) (mushroom encyclopedia protected by First Amendment); Saloomey v. Jeppesen & Co., 707 F.2d 671, 676-77 (2d Cir. 1983); Aetna Casualty & Surety Co. v. Jeppesen & Co., 642 F.2d 339, 342-43 (9th Cir. 1981); Fluor Corp. v. Jeppesen & Co., 170 Cal. App. 3d 468, 475, 216 Cal. Rptr. 68, 71 (1985). (travel guide did not have duty to warn huge Pacific surf of Hawaii could be dangerous)

2. Winter v. G.P. Putnam's Sons, 938 F.2d 1033, 1038 (9th Cir. 1991)


4. Black’s Law Dictionary, 7th Ed., West Group, St. Paul, MN. p. 1225.

5. Diamond v Chakrabarty, 447 U.S. 303, 100 S Ct 2204, 65 L Ed 2nd 144 (1980).


7. 35 USCA Section (102).

8. Principles reviewed in:

9. Case decision: [still looking]

10. Kennedy v Guess, Inc., 806 N.E.2d 776 (Ind. 2004)

Friday, April 11, 2008

Formula to Pass the MPRE

Here. The left side of the equation is always the distractor to snare the simp law student.

Wednesday, April 9, 2008

Lawyers in Self-Help

Nice. I wonder if any lawsuit will follow.

Sunday, April 6, 2008

Indemnity Clause in Internet Terms of Service

This is what I will be watching in this case . may seek costs and consequential damages from its posters, after their signing the Terms of Service.

1) The indemnity clause is condemned by the UCC if between unequal parties.

2) Contracts of adhesion with a disparate parties is unconscionable per se, according to the UCC.

3) The indemnity clause represents free corporate liability insurance provided to the offeror, by the offeree, without disclosure of this effect.

4) Let's say the offeree has $100,000 in assets. Let's say, I could buy such a corporate liability insurance policy covering $100,000 of liability for $1000 a year. Then, the offeror has received a liability insurance equal to the assets of the offeree, and has been unjustly enriched by $1000 a year. That unjust enrichment should be disgorged in a class action lawsuit to retrieve the value of all the corporate liability insurance provided for free. Because this is insurance, it does not require that the offeror tried to collect on the liability coverage.

5) The provision of insurance by an unlicensed, unregulated offeree breaks the insurance laws of the state. The contract indemnity clause promises to perform an illegal act, unregulated, unapproved insurance.

Friday, March 28, 2008

Korean University Sues Yale

Here. I have always wondered about the $trillions in the endowments of top tier schools. These are Hate America indoctrination camps. Their law schools cause massive damage to our nation. The sedition peddled gets taxpayer subsidy. Why are they not targeted by the lawyer in massive class action claims? At the very least, they should all lose their tax exemptions.

Sunday, March 23, 2008

A Brief Reply to the Question, What is Wrong with Torts Law?

From here.

1) It has a supernatural power as its core doctrine. The foreseeability of rare accidents element violates the Establishment Clause.

2) It relies on the gut feelings of twelve strangers off the street as a lie detector. OK. What about the wisdom of the crowd effect? No. The lawyer excludes that potential advantage by the automatic disqualification of anyone with knowledge. In 1250 AD, the jurors had walked the boundaries of the disputed land at the time of transfer of title. They knew the litigants for years.

3) Most cases are weak. These are economic growth wreckers. They deter business startups. They deter IPO's. They consume massive blocks of time of business leaders.

4) All the goals of torts are in failure. All safety enhancements stem from technology progress. No correlation between litigiousness and safety has been shown.

5) Whatever the masking ideology, they are punishment, revenge, and expressions of animus. As such, discovery in torts violates the Self-Incrimination Clause of the Fifth Amendment. The lawyers on the bench allow it so their profession may plunder all productive sectors. If making people whole were the purpose, Medicaid for the injured would suffice.

6) Whatever the advantages of torts, the lawyer profession has selflessly forsworn them. They are the sole group that have maintained a privity obstacle to a legal malpractice claim by the adverse third party. If the filing of a weak is legal malpractice, they are not getting the profession improving benefit of torts. This immunity privilege is unique and self-dealt.

7) Beyond legal malpractice, the tort lawsuit itself is a product, dangerous, and harmful in its ordinary intended use. It merits becoming a target of product liability, and fulfills all common law requirement for strict liability.

8) The process is corrupt. Paid off experts cancel each other out. The jury is left with likability of the parties as a basis of judgment. So, the trial is a Broadway production and a contest of fairy tales.

9) Judges and lawyers have dealt themselves absolute immunity for their ubiquitous incompetence. Self-help has full moral and intellectual justification. Only force and Army Airborne validates the torts judicial system.

10) The lawyer has implanted bunches of take backsies into the self-written, self-dealing rules, for any embarrassing error. Res judicata freezes all injustices and false results. So smokers save state Medicaids money, by their early and quick deaths. The entirety of the tobacco settlement should be returned to the tobacco companies, with interest. This return should, by statute, be passed on to the buyers in the form of lower tobacco prices. Silicone implants caused no harm. The fired workers from the bankrupted chemical company should get compensation from the outrageously incompetent court and its owner. If a financial relationship can be shown between the judge and the legal profession, jail all around. Res judicata should end by a Constitutional Amendment, as should all self-dealt immunities of the little caesars on the bench.

11) No one who has passed 1L should sit on a bench, in any legislative seat, or policy position in the Executive. Pass a law, as the felon is excluded now. After 1L, the indoctrination cannot be taken back. The person is lost. No judgment. Belief in supernatural doctrines. Self-deluded policy benefits of the torts system, really in utter failure. Accepts all self-dealt advantages of the lawyer profession. Blocks out the failure of government, totally under the charge of the lawyer. Deniers the devastation done by the lawyer, especially to minority populations. Accepts the discipline of a tyrannical but idiotic hierarchy.

Saturday, March 8, 2008

Promotion of Off-Label Drugs

Here. It makes these points. Over half the scripts in the US are off label. The disparity between use and validated studies is greatest in psychiatry and in allergies.

JAMA is a biased, left wing, clinician bashing organ of the idiotic AMA. Here is what these left ideologues do not say.

1) The most scientific validation of medication prescribing is the good response of the individual patient. Shows placebo in a study helps half of patients and harms none. Show drug helps 1% of patients and harms 99%. The clinician's patient responds, and worsens after every attempt to stop the medication. The proven response rate is 100% in the on-off single case experiment.

2) Parametric studies validly apply to the greater population, if the random selection assumption has been faithfully maintained. It does not apply to clinical decision making, which has a binomial and Bayesian distribution.

3) Verispan and other prescribing tracking services define the standard of care the most reliably, far more validly than any artificially conducted study.

Both the FDA and the clinician bashing AMA should be enjoined to obey Supreme Court holdings in a half dozen decisions mandating deference to clinical decision making.

Friday, March 7, 2008

Alum: Yale Law Has Changed

And, not for the better. See the comments as well. Here.

Sunday, March 2, 2008

Should a Remedy Have Mutuality?

They want to post medmal claims. The overwhelming majority of these lawsuits are weak and frivolous. So the complaints are lies, for the most part.

Here .

There should be a public database of horrible patients, of horrible lawyers, and horrible judges. These should then be boycotted, as this database idea implies.

Saturday, March 1, 2008

Change the Number of All Appellate Court Seats to Even Numbers

1) An even number prevents decisions with a margin of one. Such close votes bring opprobrium on the court. Everyone feels robbed by a close call. It implies the question remains unsettled.

2) If the vote is tied, the lower court decision stands. The lower court most often obeys a prior decision of the higher court.

3) The number of people on appellate courts should markedly increase to legislature size. If these out of control judges will legislate from the bench, the larger number will bring the wisdom of the crowd, more diverse expertise, and greater legitimacy.

4) Exclude lawyers from all appellate benches. These are internal traitors to our nation. They serve only the interest of the criminal cult enterprise that is their profession.

No Laughing, This Is Not Funny.


Wednesday, February 27, 2008

North Carolina Underlawyered, Says Self-Dealing Cult Criminal

Here. The report.

Like all remedies, the number of lawyers
in a place has an underdose and an overdose.

All remedies are human experimentation.

They should be proven safe and effective
in pilot studies.

The dose response curve that includes the above
ineffective and dangerous ranges
should be provided by those proposing the remedy.

No such data are needed. The criminal cult enterprise
controls the three branches
of government and sees no need for data.

Friday, February 22, 2008

EBay Lessons for the Law

EBay has an internal legal system superior to that of the lawyer and government.

1. Contracts. If one does not keep one's promise on EBay, ratings warn others. The risk results in lower bids. If one fails to deliver several times, one may be excluded from this multi-billion dollar market. Fraudulent purchasers get excluded, as well as sellers. Small disputes get resolved by communication, and the fear of poor ratings. In contract law, only the biggest contracts get enforced by the law, because legal fees are not worth an action for under $10's of 1000's. Performance on EBay takes place in the overwhelming majority of cases. In the world of contract law, the rate of performance is unknown, and likely to be low.

2. Torts.

3. Evidence. In the law, one must produce an expert to testify to the value of a product, an opinion, a guess, a biased view paid for by the hiring attorney. On EBay, the selling price is a fact for the product, at that time. The price reflects the sincerest value of a worldwide market.

Friday, February 15, 2008

Wishes of Deceased for Corpse Prevail Over Those of the Relatives

This Iowa bill proposes that presumed consent or actual consent for organ donation would prevail over any family wish. Here.

1. Corpse and Kelo.

Monday, February 11, 2008

If Harm from the Breaking of a Rule Is Negligence Per Se, What is a Verdict Enabled by a Crime?

The Rules of Civil Procedure should end res judicata if the outcome stems from a crime, such as the one described here.

Thursday, January 31, 2008

Hold Harmless Clause as a Tort

In hold harmless clause, the offeree of a contract promises to reimburse the offeror for any expenses arising out of the performance of the contract.

1) One may find these clauses everywhere, especially in terms of service contracts on the internet, in employment, and other types of contracts.

2) Many of these contracts are contracts of adhesion. Discussed here. The UCC Section 2-302 deems a contract of adhesion to have procedural unconscionability.

3) The UCC Section 2-302 finds these hold harmless clauses to have substantive unconscionability if the parties are uneven.

4) The clauses are really limitless insurance policies, to the last button of the offeree.

5) The offeror has made the offeree violate the law by providing unlicensed, unregulated insurance. These contracts may be void for illegality, by inducing unapproved, unregulated insurance coverage.

6) These insurance policies have a value, as business liability insurance granted to the offeror. Let's say, one may buy a liability policy for $1 covering $1000 in liability. Let's say the offeree has assets worth $1 million. To buy a business liability policy for $1 million in coverage by the full assets of the offeree, the offeror would have to pay an insurance company $1000 a year in an insurance premium.

7) The offeror has thus been unjustly enriched by the hold harmless clause, for $1000 a year for the ten years of the contract. The offeree should be able to make the offeror disgorge these unjust profits for the period in which the contract was in effect, $10,000.

What alternative best serves justice? Each party should agree to take financial responsibility for its own mistakes, and to get regular insurance coverage if the risk warrants it.

This Option Should Be Encouraged in All Repeat Violent Offenders

Here. The strongest encouragement should be given to have repeat violent offenders choose this option. It should be made convenient with the tools necessary to choose this option.

All Judges Subject to Lawyer Discipline


RIAA Lawyers Face Sanctions

Described here.

This Just Proves Arrogance Not Quality

Yale newspaper objects to the Hate America antics of the Law School.

This Theory May Explain Most Anomalous Case Law


Reviewed in this biased, partisan blog.

Wednesday, January 30, 2008

Monday, January 21, 2008

Plagiarism as Lawyer Gotcha and Bad Faith

Judge Posner advocates a softer approach to plagiarism. You cannot read his essay here. You can read it from here, after you pay for it. He argues it causes little harm. I add, it causes a benefit as a form of advertising. The benefit should be subtracted from any money damage awarded for plagiarism or copyright violation.

For example, a person uploads an MP3 song. One hundred people download it. Of those, ten like it so much, they buy the CD. If the value of the ten bought CD's is not subtracted from the claim settlement, then the record company has been unjustly enriched. The same is true for the cost of the advertising it would have taken to get ninety people to sample it.

I want to, but I cannot buy Judge Posner's book because of his hypocrisy.

Saturday, January 19, 2008

The End for the Claim of Lack of Informed Consent

Thanks to Prof. Childs for inspiring this post by his arguing against this idea. Access to the internet is universal. It contains all the information published about medical treatments in use. The reasonable person in treatment now has an affirmative duty to research all treatments on the internet. The courts will start to recognize the obvious.

The physician has superior knowledge from experience in other patients of unreported, new adverse events from a treatment.

If an adverse effect has been listed in the package insert, the patient's knowledge is superior. If he does not know a medical term, medical dictionaries are available on line, for free. The patient not only knows the bad effect from the internet. He has a minute by minute knowledge of its effect on him, all day, every day. This knowledge also relates to a duty to mitigate harm.

The family's knowledge of the adverse effect and their failure to act is an intervening unforeseen cause that increases risk, with a superiority laying between the knowledge of the patient and of the doctor. If the plaintiff is a child, then the family has a statutory duty to protect the plaintiff. They have an affirmative duty to mitigate harm to a minor child.

The doctor sees him a few minutes, every so often, and has the least real world knowledge of any party.

Saturday, January 12, 2008

The V Word - Impossible Utterance for Anyone Who Has Passed 1L

I cannot get anyone who has passed 1L to utter the V word, victim. I am really getting desperate. I have provided a sentence to be copied and pasted in a reply. That would satisfy me entirely. Take a shot at this. No effort. No one else outside the law has any trouble with this word. It causes the lawyer throat to close up, and the lawyer writing hand to horribly cramp up.

"The black murder victim has as much value as anyone else. The murderer of the black murder victim should be stopped."

Why do lawyers choke on the V word? Even crusading prosecutors have the criminal as a source of employment. The crime victim does nothing for the lawyer. If the murderer had assets, I have no doubt the lawyer would be quite dramatic about the V word, but in the civil suit.

I am not in a rush. Take a week to use the V word, if you need to.

Baze v Rees

Getting back to executions.

On a curve of suffering, take the central majority, that within a standard deviation on a rating of suffering.

If the same suffering were inflicted by prison authorities, how many patients' deaths would violate the Eighth Amendment prohibition of cruel and unusual punishment?

The original intent was to prevent outright torture, suffered at the hands of the British. If done to a person by another, how many deaths would qualify as torture?

The death penalty was deemed that in the 1970's and banned because of bias against minorities. Not because of its manner of death. As these inequities were removed by the states, the death penalty was permitted again.

As a soft guide to a definition, any procedure that "shocks the conscience" may be cruel and unusual.

Suffering in death seems universal, and not unusual. The average person's death is quite cruel, and if inflicted intentionally by another would shock my conscience.

If the average person has benefit of medical care at the time of death, does depriving the condemned of medically trained executioners, and medical supervision, does the deprivation violate the Eighth Amendment, and the Equal Protection clauses of the Fifth and Fourteenth Amendments?

And the AMA prohibition of medical participation violates those.