Stupid is as Stupid Does

Discussing the theory of evolution, Glen Beck recently told his television audience, "I haven't seen a half-monkey, half-person yet."

Glen Beck also led a successful fundraising drive for the NATIONAL CHAMBER OF COMMERCE.  Beck convinced thousands of middle class folks to contribute their hard earned money to the WEALTHIEST CORPORATE LOBBYING ORGANIZATION IN THE COUNTRY.  And so many people contributed that the Chamber's website crashed.

Astonishing!

Steve Benen is right.  Stupidity really does spread like cancer.

Joe H.

Noah Millman on Resistance to Gay Equality

Noah Millman on Resistance to Gay Equality:

"It gets worse before it gets better – indeed, it gets worse even as it’s getting better. That’s the way the politics of these sorts of issues goes, issues that appear to present very fundamental challenges to an entire worldview. At the outset, the worldview has a variety of sources of support: longstanding traditions and patterns of behavior; a larger societal consensus on the rightness of a position; the support of scientific authorities; etc. But as these supports fall away, as patterns of behavior change, as the question becomes contested rather than settled, as the scientific consensus dissolves or even switches to the other side, the defender of the traditional understanding is left with only one actual argument: if I give this up, I will have surrendered everything. And so I will never give up."

This too shall pass.

Joe H.

Market Failure Anyone?

Exhibit "1" proving that unregulated markets can and do fail
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The War on Drugs

California is set to vote on a ballot initiative to decriminalize possession of small amounts of marijuana. It is an interesting initiative, given that possession of marijuana would still be illegal under federal law, and federal law trumps state law pursuant to the United States Constitution’s “Supremacy” clause. Moreover, Attorney General Eric Holder just announced the Justice Department’s intention to enforce federal drug laws irrespective of the results of the California initiative.

Exactly how the justice department will pursue its enforcement policy without the aid of local law enforcement – the DEA only has so much manpower and can’t afford to concentrate on individuals possessing small amounts of marijuana for personal use – is unclear. But I suppose the Attorney General has to affirm federal law, so there you go. Homage paid.

I’ve long favored decriminalizing drug use as part of a “harm reduction” policy strategy. If there is a policy that has failed more miserably than our “war on drugs,” I’ve yet to see it. It is inconceivable to me that we have spent hundreds of billions, perhaps trillions, of dollars on this so called war, ruined hundreds of thousands of lives, created a worldwide black market and all the attendant crime that accompanies black markets, in order to accomplish. . . absolutely nothing! It is even more inconceivable that most “responsible” government officials want to continue the war despite strong empirical evidence that there is a better way forward.

And to think that President Obama promised, repeatedly, that “we will not ignore the facts – we will be guided by them.”

Absolutely inconceivable!

Okay. You do not think that word means what I think it means. I get it. Still . . .

I am not advocating drug use. It bothers me that I have to say that. Defenders of the current policy cannot be so stupid as to truly believe the proponents of decriminalization want drug use to increase. Surely they know the debate concerns the most effective policy for decreasing drug use and the problems associated with it. On the other hand, if I had to defend the war on drugs based on its effectivness, I'd probably resort to bad faith arguments just as quickly. So I'll grudgingly repeat myself. I am not advocating drug use.

To the contrary, I think we should treat drug use and users the same way we treated tobacco use and users – we should stigmatize drug use and offer help for those wanting to quit – financed by taxes on the legal sale of the products. In case you haven’t noticed, smoking is down to around 10% of the adult population, even though cigarettes remain legal in every state.

That’s down from 50% in just a few decades. Shouldn’t we at least consider trying a similar strategy regarding drugs?

This is not an original quote, but it sums up the situation regarding the war on drugs perfectly. “The war on drugs is a war against human folly, and all such wars are lost before they even begin.”

Joe H.

Meta Ignarance and a Glimmer of Hope

One of the most difficult things about practicing law as a novice is "meta ignorance.” “Ignorance” is the state of not knowing something. Meta ignorance, to the contrary, is not knowing that there is something that you should know, but don’t.

The American system of law is extremely complicated. Part of the reason is that there are so many sources of law - federal and state constitutional law, federal and state case (court made) law, federal and state statutes, federal and state administrative rules, local ordinances, procedural rules, court rules, and so on. This fact makes it extremely likely that there is some point of law that relates to whatever you’re working on that you don’t know about. However, it is one thing to not know the answer to a particular question – that can be easily remedied by research. It is quite another not to know there is a question you should ask.

Most of my mistakes practicing law have arisen from meta-ignorance. This is extremely stressful. When you present work to a firm partner, they expect it to be legally sound. It is very hard to tell a firm partner, “that may or may not be true, I didn’t think to research that issue.” Only one firm partner has ever responded to this excuse with “how could you have known?” Most of the time, they expect you to figure out everything you need to know and factor it in. This creates a dilemma. You can sit in your office trying to discern additional relevant legal issues when you have no idea what they might be – and waste valuable time that you can’t bill. Or, you can turn your work in and hope you don’t face the dreaded “what about this issue?”

Well, something just happened that gives me hope regarding this problem. I am about to file a complaint for one of my clients. A complaint is the document that begins a lawsuit. Generally speaking, a complaint consists of the complaint itself, a demand for jury trial, and a summons. I completed each of these documents and was about to send them to my client for review, when something happened indicating that, on at least one point, I transcended meta ignorance to ignorance (and now possess knowledge after doing the research).

Here’s the short story. Our court system goes back to the English court system. The English had multiple court systems. The “Common Law” or legal courts were created when William the Conqueror conquered the British Isles in 1066, and subsequently united all of the King’s legal courts into a “common” judicial system. However, a second system of courts known as the Courts of Chancery (or Courts of Equity) developed as a remedy to the harsh rules and limited remedies available in the legal courts.

The main difference between these systems is that common law courts operated by strict rules of law, which often dictated unjust or harsh results. Courts of equity, on the other hand, could consider equitable as well as legal principles in arriving at their decisions. They could also award a wide array of remedies not available in the common law courts. For example, if a party to contract for the purchase of land backed out (because the value of the land had increased), a common law court could only award money damages, which is a legal remedy. Courts of equity, on the other hand, could award the remedy of “specific performance” and force the sale at the agreed upon price.

America adopted this two court system when our nation was founded. The federal courts, and nearly all state courts, combined their two court systems in the early 1900’s. But both common law remedies and equitable remedies are still available in our courts. You can sue for damages, which is a legal remedy. You can also sue for an injunction, which is an equitable remedy.

Why is this important? My client is suing co-obligors on a contract for equitable contribution – which is an equitable remedy. After completing my complaint, it occurred to me that there might not be a right to a jury trial for purely equitable claims. That was my transition from meta-ignorance to ignorance – it occurred to me to ask a relevant question. Within five minutes, I went from ignorance to knowledge, when I discovered that the right to a jury trial only applies to legal claims.

After getting rid of the demand for a jury trial, I thought, there is a glimmer of hope for me in this business.

Joe H.

Conservatives Redefine "Abuse of Power"

This article by Adam Sewer was very insightful. Movement Conservatives have indeed redefined "abuse of Power" in exactly the way Sewer describes - and they should be ashamed of themselves.

Joe H.

Great American Hero

If the rule of law wins in the United States - and that is by no means guaranteed - Glen Greewwald will eventually be seen as a great American hero.  A modern day Thomas Payne.

Joe H.