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

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.

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."

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.

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.

References

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. com.au/public/ issues/176_ 06_180302/ hug10592. html ; http://www.ajronlin e.org/cgi/ content/full/ 183/3/557

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

5. http://www.supremec ourtus.gov/ 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."

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.

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.

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.

Another Duty to Google: Community Standards from Search Results

Here.

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.

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).

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.

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.

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.

Superb Brief Objecting to Class Action Settlement

Very nice model for future such objections.

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.

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.

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

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.