Thursday, January 31, 2008
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.
This Just Proves Arrogance Not Quality
Yale newspaper objects to the Hate America antics of the Law School.
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.
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.
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.
"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.
Thursday, December 27, 2007
Sunday, December 23, 2007
Beyond Daubert to Reality
Daubert web site.
Let's stick to a standard of care testimony. The expert may properly cite studies. These are authored by academics, most often. Clinicians spread advances by word of mouth, and they get accepted or rejected within weeks. Strong remedies will become self-evident at the gut level. Weak or ineffective remedies will fail to impress and get dropped.
If the expert proposes some standard of care, e.g. heart decelerations this many times require C-Sections, should we settle for academic studies? Shouldn't we demand the expert provide his own records on the management of similarly situated patients? If the expert can only provide 3 such records, does he qualify as an expert? Can one be expert after 3 repetitions of decision making? If he can provide a dozen such records, are they the totality of the records of similar patients, and not cherry picked records agreeing with testimony? One should demand all the records of the expert, and sample them. If a record is found that contradicts the testimony, a mistrial should be called, and the legal costs of both sides should be obtained from the lying expert's personal assets.
And, yes, experts should feel intimidated. With the absurd arrogance to dictate practices to the doctors of the entire state at the point of a gun, they should take the consequences of their lying prostitution to the land pirate.
****
If opposing experts testify in good faith, then a scientific controversy arises. The court has no competence to resolve it. Only additional data, confirmed by others may resolve a scientific controversy.
Whenever two legitimate experts testify, the case requires summary dismissal, as beyond the purview of the court. Failure to do so violates the procedural due process right to a fair hearing of the civil defendant.
Let's stick to a standard of care testimony. The expert may properly cite studies. These are authored by academics, most often. Clinicians spread advances by word of mouth, and they get accepted or rejected within weeks. Strong remedies will become self-evident at the gut level. Weak or ineffective remedies will fail to impress and get dropped.
If the expert proposes some standard of care, e.g. heart decelerations this many times require C-Sections, should we settle for academic studies? Shouldn't we demand the expert provide his own records on the management of similarly situated patients? If the expert can only provide 3 such records, does he qualify as an expert? Can one be expert after 3 repetitions of decision making? If he can provide a dozen such records, are they the totality of the records of similar patients, and not cherry picked records agreeing with testimony? One should demand all the records of the expert, and sample them. If a record is found that contradicts the testimony, a mistrial should be called, and the legal costs of both sides should be obtained from the lying expert's personal assets.
And, yes, experts should feel intimidated. With the absurd arrogance to dictate practices to the doctors of the entire state at the point of a gun, they should take the consequences of their lying prostitution to the land pirate.
****
If opposing experts testify in good faith, then a scientific controversy arises. The court has no competence to resolve it. Only additional data, confirmed by others may resolve a scientific controversy.
Whenever two legitimate experts testify, the case requires summary dismissal, as beyond the purview of the court. Failure to do so violates the procedural due process right to a fair hearing of the civil defendant.
Saturday, December 15, 2007
Sunday, December 9, 2007
Licensing Adult Pleasures, Not Prohibition, To Prevent Harm, Alternative to War on Whatever
The majority of smokers do not get lung cancer. Smoke two packs a day for fifty years. Only one in seven such people get lung cancer. Why should the other six pay the price of prohibition?
The Constitution requires the showing of harm in a compelling state interest before abridging a freedom.
A licensing approach can stop harm without depriving others of adult pleasures.
Upon reaching adulthood, people could apply for separate licenses to drink alcohol, smoke, perhaps eat rich foods. People who committed crimes as juveniles should prove they have reformed. The clear and convincing standard of proof applies to licenses.
One commenter proposed insurance coverage for the harm from the adult pleasure.
Another objected to 1) loss of freedom; 2) the temptation of lawyers to increase fees, and to make the license a source of revenue.
The federal statute or constitutional amendment should prohibit any collateral purposes. It should restrict all licensing fees to the exact cost of processing, and prohibit any additional fee.
The licensing of the individual grants full freedom of enjoyment of the adult pleasure, until harm has started. The costs of all harms most often falls on the taxpayer.
Update: Not so far fetched. Here.
The Constitution requires the showing of harm in a compelling state interest before abridging a freedom.
A licensing approach can stop harm without depriving others of adult pleasures.
Upon reaching adulthood, people could apply for separate licenses to drink alcohol, smoke, perhaps eat rich foods. People who committed crimes as juveniles should prove they have reformed. The clear and convincing standard of proof applies to licenses.
One commenter proposed insurance coverage for the harm from the adult pleasure.
Another objected to 1) loss of freedom; 2) the temptation of lawyers to increase fees, and to make the license a source of revenue.
The federal statute or constitutional amendment should prohibit any collateral purposes. It should restrict all licensing fees to the exact cost of processing, and prohibit any additional fee.
The licensing of the individual grants full freedom of enjoyment of the adult pleasure, until harm has started. The costs of all harms most often falls on the taxpayer.
Update: Not so far fetched. Here.
Sunday, December 2, 2007
License the User of Adult Substances and Pleasures
In this NYT Ethicist, the liquor store management asks, what to do if a relative begs him to not sell to an alcoholic. The Ethicist has no credibility. He takes an appalling, ridiculous legalistic approach, given the damages of alcoholism. However, he inspired a new idea.
Prohibition was a great period in American life. Crime decreased, in contrast to Hollywood propaganda. The markers of alcoholism decreased, such as deaths from liver failure. Consumption only decreased by 50%. It had no popular support and failed. Draconian measures would be required to enforce it in the future. Laws should have popular support.
What about a licensing approach? Adults would receive a drinking license. Servers would have to verify licensure. The alcoholic adults would lose their licenses. Anyone supplying an unlicensed adult should go to jail for a short period. If harm, even to the alcoholic himself, the supplier is liable in torts. Paid supplying is an intentional tort with scienter, subject to exemplary damages. Unpaid supplying to negligence liability, after the jail term is served. If the supplier has no assets, the criminal conviction permits hard labor in restitution for the full value of the damage.
No data supports nor rebutts this approach. However, it leaves alone the 95% of people who drink without problems. It deters and seeks compensation from the enablers of the problem drinker. It seeks to reduce availability, but only to the problem drinker. As the drinker causes problems, reports from sources add points to the license, until withdrawn.
The Federal government may not mandate states pass any law. They may condition federal health payments for passage of such licensing. The Federal government certainly has a compelling government interest in reducing the impact of alcohol on health costs.
The licensing of the user approach, points, and mandatory insurance applies to all adult substances and pleasures.
Prohibition was a great period in American life. Crime decreased, in contrast to Hollywood propaganda. The markers of alcoholism decreased, such as deaths from liver failure. Consumption only decreased by 50%. It had no popular support and failed. Draconian measures would be required to enforce it in the future. Laws should have popular support.
What about a licensing approach? Adults would receive a drinking license. Servers would have to verify licensure. The alcoholic adults would lose their licenses. Anyone supplying an unlicensed adult should go to jail for a short period. If harm, even to the alcoholic himself, the supplier is liable in torts. Paid supplying is an intentional tort with scienter, subject to exemplary damages. Unpaid supplying to negligence liability, after the jail term is served. If the supplier has no assets, the criminal conviction permits hard labor in restitution for the full value of the damage.
No data supports nor rebutts this approach. However, it leaves alone the 95% of people who drink without problems. It deters and seeks compensation from the enablers of the problem drinker. It seeks to reduce availability, but only to the problem drinker. As the drinker causes problems, reports from sources add points to the license, until withdrawn.
The Federal government may not mandate states pass any law. They may condition federal health payments for passage of such licensing. The Federal government certainly has a compelling government interest in reducing the impact of alcohol on health costs.
The licensing of the user approach, points, and mandatory insurance applies to all adult substances and pleasures.
Wednesday, November 28, 2007
Does Lawrence v Texas Apply to Outside Relationships with Patients?
This question should be raised in this case.
Eugene Volokh has original thoughts about this question.
Eugene Volokh has original thoughts about this question.
How Can Victims of Lawyer Oppression Respond?
Lawyer bullying of doctors, and extortion, described here.
The boycott by all service and product providers of all lawyers is a good beginning to self-help in deterring the criminal cult enterprise that is the lawyer profession.
The boycott by all service and product providers of all lawyers is a good beginning to self-help in deterring the criminal cult enterprise that is the lawyer profession.
Sunday, November 25, 2007
Duty to Google?
Yes. Reviewed here.
If there is a duty to Google to identify, locate and serve notice, is there a duty to Google for a plaintiff claiming lack of informed consent about a medication or procedure?
Does Google nearly eliminate the tort of failure to warn?
If there is a duty to Google to identify, locate and serve notice, is there a duty to Google for a plaintiff claiming lack of informed consent about a medication or procedure?
Does Google nearly eliminate the tort of failure to warn?
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Some things went unstated in the Summary. These may not be spoken out loud, without expulsion.
The education must have the structure and methods of indoctrination ("thinking like a lawyer"). It is impossible to become a lawyer otherwise. Why?
The education must blind very intelligent people to the supernatural nature of the core doctrines, future forecasting, mind reading, the standards of conduct of a mandatorily fictional character. Finally, the central word of the law, reasonable, in accordance with the New Testament, an unlawful meaning in our secular nation.
The student must learn to fear and obey a hierarchy. The latter makes 99% of the policy decisions of the three branches of government. When entitled students question this approach, the false reply returns, it's to give you the courage to advocate in a court.
The student must be overwhelmed with massive numbers of rules, difficult issue spotting, as in a puzzle. This busy work has no empirical validation. Still, it prevents the student from noticing this little problem. Every self-stated goal of every law subject is in utter failure. Were students to ever realize that, the authority of the hierarchy would diminish.
School bullies the student into lawyer discipline, from day one. The student may not even express a drunken opinion about any legal matter at a party without fear of being reported and punished. The student does not learn, lawyer discipline ignores all Rules of Conduct, but four. These further hierarchical interests.
What is at stake for the hierarchy? They run half the economy by their control of government. They have a highly successful rent seeking business, bringing in $tril yearly, making it the wealthiest and most successful syndicate in history.