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.
Wednesday, February 27, 2008
North Carolina Underlawyered, Says Self-Dealing Cult Criminal
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.
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.
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.
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.
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.
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