Category Archives: Media incompetence/bias

Who Could Possibly Know…

whether a $60 million pain and suffering award was “too much” and needed to be cut in half?

The Appellate Division, First Department. That’s who.

It’s a lot of money either way, of course. At least, in context it is.

But we’ll just say here what we have said before: there is no principled reason why the appellate court should adjust the jury’s award at all. There are only unprincipled reasons, such as we can’t have municipalities or insurance companies being forced to make such big payouts to the rabble.

Alas, we are once again repeating ourselves.

Ugh.

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Filed under Judicial lying/cheating, financial crisis, Media incompetence/bias, epistemology

The Toppling Of A Mayor

Politics ain’t beanbag. We get that.

She knocked off Tom Richards, who was an odd choice for Rochester mayor, speaking demographically. But he was not odd in one important respect: the shadowy powers that be held him in high regard.

Lovely did not truck with the powers that be and that has consequences, especially if you are vulnerable to attack, and Lovely was, and is. An indictment will sink most any political career. And they’re easy to get. And so the powers that be eventually got one, and now there’s a plea deal, and that’s that.

This is a sad chapter in Rochester politics. Sad because Warren became such a disappointment, but then her enemies were always close. Many of them worked “for” her. There’s a swamp in DC? Surely.

The Lovely Warren episode demonstrates that there is also a swamp in Rochester.

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The Election Of The President

At some point someone has to say something. Might as well be us.

There’s a website characterized as “far right” on Widipedia called “The Gateway Pundit” (“GP”)

GP reports that there was a “rally” yesterday in Georgia presided over by former President Trump that featured a “massive crowd”. Is this true? GP says it is true. Regular media outlets such as CNN do not mention it, so presumably they don’t deny it.

As we’ve said many times, we don’t even like Trump. We think it’s unfortunate he ever was POTUS. And now we’d like him to just fade into history, like a lot of people prefer, and like most presidents before him promptly did once someone else takes over the helm.

But…..

A former president conducting “rallies” where thousands of people appear is, unquestionably, a news worthy event. So it’s bizarre that it’s not being reported on by the mainstream media (“MSM”). People should get some information about such rallies, such as….what is this rally about? Is it about a 2024 run by Trump? Is it about challenging the validity and legitimacy of the 2020 election? Both? Neither?

We suspect the cause for a rally would have to be the latter – that is, challenging the legitimacy of the 2020 election. Why not simply report this?

The MSM apparently holds the position that challenging the results of the 2020 election is somehow out of the bounds of civil discourse. Is this an arguable position?

No.

Take a look at Title 52 of the U.S. Code, Chapter 207. Records of federal presidential elections are to be retained for 22 months. Willful concealment or destruction of such records is a misdemeanor, which is surprising considering all the things that are federal felonies.

Why would there be a law providing that records of elections must be retained for 22 months? Obviously, so that in that period they can be inspected. Why would anyone want to inspect them? Because they are disputing the legitimacy of the election outcome. Is this, arguably, a threat to democracy?

No. That is not even arguable. Yet this is the predominant MSM position, upon which they are basing their coverage, or lack thereof, of those who are making such disputes.

Once again, it occurs to us that Trump is not the threat to the Republic that all the press shrieking has alluded to ever since he was elected. Indeed, the Republic by all appearances has already survived the Trumpian menace, which was never as important as it was made to seem.

But an incoherent, shrieking and ultimately untrustworthy press is a threat to the Republic, which is why the press was singled out for protection in the 1st amendment in the first place. Much of the press complains about “conspiracy theories” that run rampant and unchecked on social media, but the often wild speculations – and particularly their popularity – are the natural result of a loss of confidence in our regular news reporting. The MSM complains about it, in other words, but they brought it on themselves.

And the rest of us.

Just as the legal profession has failed and caused the collapse of the third branch of government, so has the journalism profession failed the so-called 4th branch.

How’s the third branch doing these days? A bit over-defensive, it seems:

“If Roe is overruled,” the law clerk wrote, “the public will understand that the Court’s reversal is explainable solely by reason of changes in the composition of the Court.” Thus, he concluded: “The damage to the public understanding of the Court’s decisions as neutral expositions of the law … would be incalculable…”

By the way, when those two pillars of civil society (i.e., the third and fourth branches of government) have fallen the government has already collapsed. The rest is just watching it pan out. It’s not something that is going to happen – it has already happened.

Those are our thoughts this morning. Ugh.

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The Feds

Apropos our last post: here’s a clue.

Based solely on federal prosecutions and convictions, the “most corrupt” governments are in New York City, Los Angeles and Chicago.

Which just happen to be the three largest cities in the United States.

We are not sure what to make of this little foray into “most corrupt” statistics. It doesn’t seem to take into account the fact that the three most prominent New York State political figures of the last generation – Sheldon Silver, Joe Bruno and Elliot Spitzer – all wound up in serious criminal trouble and two of them wound up in federal prison.

Beyond that, is this conclusion:

Tracking the worst by city–Chicago is still the most corrupt for political corruption convictions followed by Los Angeles then NY’s Southern District for Manhattan.

simply a function of raw numbers, such that the largest places will have the largest numbers? We don’t know.

But we are also pondering the idea that the feds are more active where their efforts will draw more media attention, and that means big cities. The flip side of this coin is that they ignore squalid little backwaters like Mount Morris, New York.

Maybe. We’re not sure this morning.

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Rehashing Casey Anthony

We have no idea why this is occurring. There’s a lot going on in the country, and indeed the world, that ought to command our attention. Then again, look at all the attention the Kardashians get.

In any case, back in the day we opined somewhat prolifically about the Casey Anthony trial, which was a world wide frenzy for no particular reason we could fathom even then. We found the whole thing horribly fascinating.

The difficulty that attends Casey Anthony to this day is that apparently there was no conduct by public officials in the course of prosecuting her that gave her a cause of action for damages. She has never been compensated for her ordeal, and so we assume for practical reasons (i.e., lack of funds) she is unable to follow our advice for the “wrongfully acquitted”: leave the country and live obscurely elsewhere.

So here we are 10 years later, and there’s some sort of documentary in the offing that will of course imply that Casey Anthony killed her toddler and went out partying in “hot body contests”. And to gin up even more interest in the spectacle, we are treated to articles like this in our Yahoo news feed this morning.

Not to mention this juicy little tidbit: one of the jurors, who now allegedly regrets his vote to acquit. Note that he has to remain anonymous, even 10 years later. And stories from a jailhouse snitch. We are not making that up.

Apparently, even the jurors should leave the country with a bucket of cash, but we don’t know how that can be done.

The whole fiasco remains an important case study. It demonstrated that pretty young women have a really hard time as criminal defendants because of jury dynamics. It proved that even that can be overcome by a brilliant – and rare – performance by the defense attorney. It showed that mass delusion and the madness of crowds are with us still, even in the age of the individualistic world wide web.

Perhaps most importantly, the Casey Anthony case showed us that a large segment of the population will believe in someone’s guilt once they are in the dock, with virtually no rational reason to believe it. The mere possibility of guilt is more than enough to convince many, many people.

We’ll say it again, as we said 10 years ago. There is virtually no reason to believe Casey Anthony killed her toddler. The jury verdict was courageous and clearly correct, clearly even compulsory.

The end.

Ugh.

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Edwards v. Vannoy, Finality And Floodgates Run Amok

So, this was an interesting case that came down from the SCOTUS this week. We’ve been busy and haven’t had the time to deal with the case, at least not in the manner with which it deserves to be dealt.

Interestingly our media elite, such as at CNN, have exercised no restraint whatever in their haste to report not so much the significance of the case for people affected by it, but rather the revealing banter between the Justices in their various opinions, which collectively stretch to almost 60 pages. Which is not the lengthiest of opinions in the modern SCOTUS era, but lengthy enough. Seems that in times gone by SCOTUS was able to do much more in far fewer words.

In other words, CNN is focused on its own “legal analysts”, who in turn are focused on career-oriented gossip like the good little Ivy Leaguers they are. Indeed, if CNN is still accompanying that article with the video entitled “How are Supreme Court Justices chosen?” you’ll note, as we did, the pending rehabilitation of Jeffrey Toobin.

(Jeff ran into an excruciatingly embarrassing problem not that long ago. We find it hard to sympathize, both because the indiscretion involved seems unfathomable to us, and because Toobin thinks Edwards v. Vannoy is an occasion to talk – again, and ad nauseum – about the “impeccable” credentials of SCOTUS Justices.)

The poor schmucks who will rot in prison even though everyone now knows they shouldn’t be incarcerated at all? Who gives a shit about them? We’d rather gossip about petty sniping between the impeccably credentialed Justices than try to understand what they did and did not do to thousands of our fellow human beings.

You see the problem with our “legal analysts” (We mean, aside from their tendency to pleasure themselves on camera)? They’re so deeply mired in their own silly snobbery they miss the actual story.

We tend to the actual story here at LoS.

So what is that, in context here? Edwards holds basically, on the surface, one thing: the jury unanimity requirement that was held to apply to the states in Ramos v. Louisiana, such that a judgment of conviction for a felony after a jury trial can be valid only if the jury was unanimous, does not apply retroactively such that federal collateral relief is available to those aggrieved.*

Yet just like Ramos, which was specifically about jury unanimity but wound up being about stare decisis and Roe v. Wade for the likes of Jeffrey Toobin, so Edwards winds up being about something else as well. And what is the something else?

Federal habeas corpus.

The problem is, does Edwards really say anything we don’t already know? Kind of. It’s giving us some insight into the Justice’s positions. And for the most part, and probably unsurprisingly, it reveals that the Justices are hostile to the “Great Writ”, at least as exercised by federal courts over state court criminal convictions. Which is not to say that they are not also hostile to the Great Writ as exercised by federal courts involving federal court criminal convictions – they most certainly are, although those are called “2255 motions”, not petitions for habeas corpus.

But we digress.

Let’s string together a few choice quotes from Justice Kavanaugh’s opinion:

But under the habeas corpus statute as interpreted by this Court, a new rule of criminal procedure ordinarily does not apply retroactively to overturn final convictions on federal collateral review. See Teague v. Lane, 489 U. S. 288, 310 (1989) (plurality opinion)…As the Court has explained, applying “constitutional rules not in existence at the time a conviction became final seriously undermines the principle of finality which is essential to the operation of our criminal justice system…When previously convicted perpetrators of violent crimes go free merely because the evidence needed to conduct a retrial has become stale or is no longer available, the public suffers, as do the victims…Put simply, the “costs imposed upon the States by retroactive application of new rules of constitutional law on habeas corpus thus generally far outweigh the benefits of this application.” Sawyer v. Smith, 497 U. S. 227, 242 (1990)

Yes, well. We might as well be re-reading Calderon v. Thompson and post about that here. Like we did just about seven years ago exactly. Obviously, Justice Kavanaugh has not come over here to read.

Let’s say a person really is innocent and was wrongly convicted and rots in prison unjustly. How does the “cost imposed upon the State” outweigh the benefit of exonerating, freeing and compensating the wrongly convicted and imprisoned? Who in their right minds thinks this question even needs to be asked?

Are SCOTUS Justices in their right mind? We wonder sometimes. And note that the majority joined this opinion.

For his part, Justice Gorsuch, concurring, plainly understood that this is yet another case about federal habeas corpus, the AEDPA, and so on. He starts with a rather lengthy and detailed review of the history of habeas corpus and its origins in England.

Notice how Teague comes up again:

Under the view that prevailed in this country for most of our history, and in England for even longer, Teague’s question about the “retroactive” application of “watershed” rules of criminal procedure to undo final criminal judgments would have made no sense. Because a final judgment of conviction, pursuant to a full-fledged criminal trial, was the process due to a criminal serving a custodial sentence, the habeas writ had served its purpose…Only in the middle of the twentieth century did things really begin to change. In 1915, this Court suggested that a state court’s extreme departure from “established modes”of criminal trial practice, such as proceeding under the specter of mob violence, might be akin to the loss of “jurisdiction,” at least if no corrective mechanism like an appeal existed. Frank v. Mangum, 237 U. S. 309, 326, 335–336 (1915).

But if that represented an innovation, it was a modest one. The same cannot be said for Brown v. Allen, 344 U. S. 443, 464, 478 (1953)

Turns out Justice Gorsuch doesn’t like Brown v. Allen. Interesting that he also leaves out – skips over, actually – our favorite quote from Frank v. Mangum, which we have noted before:

In the light, then, of these established rules and principles: that the due process of law guaranteed by the Fourteenth Amendment has regard to substance of right, and not to matters of form or procedure; that it is open to the courts of the United States upon an application for a writ of habeas corpus to look beyond forms and inquire into the very substance of the matter, to the extent of deciding whether the prisoner has been deprived of his liberty without due process of law, and for this purpose to inquire into jurisdictional facts, whether they appear upon the record or not; that an investigation into the case of a prisoner held in custody by a State on conviction of a criminal offense must take into consideration the entire course of proceedings in the courts of the State, and not merely a single step in those proceedings; and that it is incumbent upon the prisoner to set forth in his application a sworn statement of the facts concerning his detention and by virtue of what claim or authority he is detained; we proceed to consider the questions presented

This quote wouldn’t have bolstered his argument any, of course.

Justice Gorsuch certainly knows what he wants to say about Brown, though:

With time, these implications became clear and, as Justice Jackson predicted, Brown’s innovation proved unsustainable. The haystack just grew too large.

We debunked this claim some time ago, when it was made by Justice Scalia. The “floodgates” argument, one of the SCOTUS’ favorites, is really annoying. It’s worse than annoying when you’re on the receiving end. It’s a visceral thing with the Justices, imagining the unwashed hordes storming the courthouse and making their lives miserable when they’re sitting for their portraits.

Here’s a nice little bit of positivism from Justice Gorsuch, a little further in to his opinion:

But if the rule of law means anything, it means the final result of proceedings in courts of competent jurisdiction establishes what is correct “in the eyes of the law.” Herrera v. Collins, 506 U. S. 390, 399–400 (1993).

Apparently, the “rule of law” can incorporate falsehood after falsehood, ad infinitum, so long as the falsehoods are findings of guilt in criminal cases in state courts. Because “finality” and “floodgates”.

And here’s something even more odd:

It’s simpler than that: The writ of habeas corpus does not authorize federal courts to reopen a judgment issued by a court of competent of jurisdiction once it has become final.

Whither 28 U.S.C. 2254, then, which explicitly says the opposite?

Here’s the reality. In any other context, all this hokum about federalism and federal courts not disturbing state courts doesn’t matter to the Justices at all, and it hasn’t mattered to the SCOTUS since at least the 1930’s and FDR’s “New Deal”, which essentially cemented in the United States a central (as opposed to federal) government. The state governments are now, and have been for some time, essentially vassals of the “federal” government who largely administer federal funds that pass through multiple layers of bureaucracy at the federal, state and local level before they reach their intended targets, if indeed they ever do. Just for grins and giggles some time, take a little trip following “policy” and more importantly money as it winds its way through the federal Health Care Finance Administration (“HCFA”) augmented by a stop on the way down at the State Health Department, which then delegates to the County Health Department, which services whatever individuals are making claims. In theory, anyway.

All of this would have been unthinkable to the founders of the United States and is profoundly contrary to our national traditions. FFS, the same goes for the FBI, a permanent national police force, or for that matter a standing army and a military industrial complex. Our federal government, in other words, has long since assumed a general supervisory role over public life in the Republic, and in the public mind – not to mention the minds of the rulers – this is a perfectly proper state of affairs. The federal courts themselves are considered, in our hearts of hearts, “super courts” that attract only the “best and the brightest” and adjudicate every “important” question, which the lesser state courts merely administer.

But for the SCOTUS, and now especially Justice Gorsuch, there is one exception to this otherwise prevailing regime of thought: when some poor schmuck is wrongfully convicted of a crime in a state court, his life essentially taken from him whether he winds up executed or not, the state courts have failed him and he seeks relief in a federal court.

The real reason, in other words, is not that we are so, so concerned about not elevating ourselves to a perch higher than our state court counterparts; rather, it’s that the task is too “dreary” for our Very Important Federal Courts, says Justice Gorsuch. This argument reminds us of Justice Scalia likening the same task to endlessly shoveling shit out of horse stables.

Finally, this rather interesting footnote:

The dissent criticizes today’s decision as a departure from modern habeas precedent. Post, at 2; post, at 3, n. 2; post, at 12–13. But the dissent’s history is selective. The dissent champions decisions from the 1950s, ’60s, and ’70s. But it disregards how those decisions departed from a century of this Court’s precedents and the common law before that. Supra, at 5–8. At the same time, the dissent’s account overlooks this Court’s precedents refusing to afford retroactive application in every case since the 1980s. Post, at 10–11; post, at 12, n. 7. The dissent may prefer decisions within a particular 30-year window. But it is too much to say this preference is required to “[r]espect[] stare decisis.”

Brown v. Allen, the 1953 case that is Justice Gorsuch’s bete noire in this opinion, was most decidedly not an out of the blue SCOTUS expansion of the availability of federal court relief for state prisoners, as Justice Gorsuch seems to think. It was consistent with precedent that had accumulated for about 20-40 years before that – at least since the 1930’s, in other words. Which of course is consistent with the FDR era history that the federal government and federal courts were now the Very Important places where all Very Important debates took place, the roots of which are even earlier. Don’t believe us? We have already demonstrated that Justice Gorsuch is largely misrepresenting Frank v. Mangum, which is a 1915 case, and pretty much stood plainly for the proposition that the federal courts will collaterally enforce federal rights over state courts on habeas review. Mooney v. Holohan, 294 US 103 (1935) was actually a habeas corpus petition seeking review of a final criminal state court judgment (California) that also originated in the SCOTUS itself, not a District Court, yet another hitherto unheard of but bound to be more and more common example of federal court oversight of state court criminal judgments. Mooney didn’t result in an out and out grant, but it was entertained, opined upon, and remanded to the state courts who were presumably chastened.

Want more, even earlier? Moore v. Dempsey in 1923. In particular, we suggest you read the dissenting opinion of Justice McReynolds and joined by Justice Sutherland. It is essentially the same point being made by Justice Gorsuch. In dissent. That is, by 1923 Justice Gorsuch’s view was already becoming quaint.

But what should really put to bed – forever – Justice Gorsuch’s views about federal habeas corpus is an ancient and, you know, what we used to call hoary principle of habeas corpus practice known as the exhaustion doctrine. The exhaustion doctrine says that you cannot seek habeas corpus relief in a federal court unless you have exhausted your remedies in the state court system and – usually – been denied review in the SCOTUS on petition for certiorari.

The necessarily true corollary, of course, is that after you have exhausted state remedies you can seek habeas corpus relief in the federal courts.

Far from being a novelty of the swinging 1960’s anything goes decade, the exhaustion doctrine appears as early as 1886 and then floats around through 1907 and by 1944 is pretty much written in stone. Here’s another in 1948.

Put another way, contrary to his contentions about “the dissent” it is Justice Gorsuch’s “history” that is highly selective and renders his position untenable. We hope he’s not serious when he sort of oddly pledges to persist in this error:

My vote in similar cases to come will, I hope, “be guided as nearly as [possible] by the principles set forth herein.”

We hope the opposite, because we sort of like Justice Gorsuch and think he’s capable of self correction.

Some days it all just seems too much, you know? Ugh.

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*To tell the truth, in practical terms neither the Edwards decision nor our little critique here of it is necessarily as significant as we think, because our brief and cursory review of post-conviction proceedings in Oregon and Louisiana may support the idea that prisoners can seek relief under the state laws governing those proceedings, which appear to confer a fairly broad discretion on the state courts. That is, Edwards refuses to apply the Ramos rule retroactively for federal habeas corpus purposes, but the state courts are free to grant relief. Strange that we at LoS should mention this point when the SCOTUS doesn’t in 60+ pages, especially since many of those pages are so deferential to state courts. Not strange, of course, that the media and their legal “analysts” miss it as well: they are so imbued with the notion that only federal courts, and especially the SCOTUS with all their impeccable this and that, MATTER.

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Vaccination For Fun And Profit?

So this is a hot issue these days. And an interesting one. And it poses questions that are largely out of our field – immunology, epidemiology – so we’re careful about making grand or definitive pronouncements. Our traditional position has been something along the lines of “live and let live”. If you feel the need to vaccinate, why, go right ahead. If you object to vaccination, well, by all means refrain.

But our traditional position appears to be no longer feasible. We are being forced to take a position for ourselves and everyone else. So we have to think it through in our usual thorough, systematic way, emphasizing The Reason as governing The Science, because as we’ve noted we have a background in epistemology and that is the actual subject that is being implicated by these surprisingly prevalent meta-arguments, something we have pointed out before.

We start from the bedrock principle of “informed consent”. Any trespass against this principle requires compelling justification. This is not arguable. At least, it’s not arguable unless you’re willing to concede that the tribunals at Nuremberg got it wrong.*

We don’t concede that around here. We’re pretty surprised that anyone in modern times would be willing to concede that. Justice Holmes might have, back in his day. But then his willingness to do so was not his finest moment, was it?

But we digress.

We’ve been suffering collectively from a worldwide pandemic for more than a year, beginning around March of 2020. We’ve placed our faith in “public health authorities” to prescribe a collective solution to the dire and deadly threat posed by the responsible virus, known popularly as COVID-19.

Well, some of us have. Others of us object quite strongly, resenting the forced bureaucratic imposition of nationwide or statewide “lock-downs”, and historically peculiar – not to say bizarre – behaviors such as wearing masks and “social distancing”. The objection is that this is a largely manufactured crisis, that the seriousness of COVID-19 is greatly exaggerated, and that the whole episode is an irrational panic, like witch burning; or a power grab by power hungry swamp dwellers; or a money grab by money hungry pharmaceutical companies; or, finally, a worldwide conspiracy to set the stage for a “Great Reset” that will result in universal human enslavement under a new and sinister technological oligarchy (That last is a “baseless conspiracy theory”! The BBC says so!!).

There is significant disagreement about the very facts and circumstances that are cited as justification for disregarding that bedrock Nuremberg principle, in other words, and the motives, honesty and integrity of those attempting that justification.

Then, of course, there is the meta-argument: there is no significant or legitimate disagreement. The Science provides the only acceptable interpretation of the situation, and The Science prescribes mass – nay universal – worldwide vaccination as the only acceptable solution.

That is quite an extraordinary claim. And of course it is an epistemological claim, not a scientific one.

For our part we follow the newsletter of an osteopathic doctor named Mercola, who is “all in”, as they say, on the side of the objectors, occasionally teaming up with Robert F. Kennedy, Jr. We also engage regularly in our Facebook activities with other doctors who have the opposite point of view.

The – for want of a better term – “established” medical authorities do not generally engage the objectors like Mercola or RFK Jr. on the merits of their claims; rather, they seek to discredit them, sometimes quite unfairly, and censor their contentions. On those rare occasions when they do engage on the merits, they lose the argument, at least to the extent that they do not succeed in “debunking” the objections in any meaningful way, although we hasten to point out that even though they might not be “debunked” it is quite possible to disagree on the merits, and we do not purport to resolve that disagreement here.

For their part, the mainstream media (“MSM”) shill for the established medical authorities, much as they shill for the police and other authorities. We won’t go down the rabbit hole of why that is, at least not this morning, but we note that it’s too obvious to really debate the point.

The media approach is a “tell” as they say – what we used to call a “contrary indicator”. One faction engaging in character assassination and censorship is another tell. And when that same faction, in their few forays into genuine engagement, lose the debate on the merits, at least in the sense that they do not succeed in “debunking” the position of their interlocutors – we come readily to the conclusion that they are the faction in the wrong. It is not difficult, intellectually, to reach this conclusion and it is the only fair and objective conclusion under the circumstances.

Want another tell? Efforts to make vaccination more compulsory have become a Thing in recent years, some of it pre-dating the current pandemic. This supports a conclusion – doesn’t mandate the conclusion, but certainly supports it beyond any rational debate – that the pandemic is a manufactured excuse – by whomever – to further push vaccination. Even if this is true, of course, it may be that those pushing vaccination further do not have evil motives. But let’s just say that it’s not a good sign.

That does not, by the way, mean that it is not legitimate to disagree on the narrower, more modest point. That is, it is perfectly reasonable, even if it is likely wrong under our analysis, to disregard all the tells, decide that “The Science” is settled, and get yourself vaccinated.**

But that is not the issue on the table. The issue is not whether people are free to get vaccinated or not but rather whether those who do not want to be vaccinated can be compelled to do so in violation of the Nuremberg principle.

And that, ladies and gentlemen, is not a close call. Remember we said at the beginning that a justification for overriding the Nuremberg principle would have to be compelling, and that this is likewise not a debatable point. But not only is the profferred justification not compelling, it is not a winning argument at all, objectively speaking.

And that’s that! We know that many of you find it much more difficult than we do to think things through systematically. So this is our little public service this morning.

You’re welcome!

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*We understand that Nuremberg dealt most specifically with experimentation and not clinical treatment, but the standard has been a fixture in the time since for both.

**We ourselves, owing to our tour of duty as a key component of the national defense in the US Navy, are among the most heavily vaccinated persons you could ever encounter. We never felt the vaccines we received, by the dozens over a few days, did us any harm. But that is not the point here, obviously.

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Unhinged

From Michael Cohen that’s to be expected, we suppose.

But how does a media outlet cover this story without the slightest mention of the attorney client betrayal going on?

And Professor Turley, who wields a pretty big internet megaphone, is focused on what the feds took or didn’t take in their search. The elephant in the room remains the idea of raiding Giuliani’s office in the first place.

Obviously, lawyers can be prosecuted like anyone else for crimes they themselves commit. But when a prosecution stems from their representation of a client, and the prosecution also seems aimed at the client more than the lawyer that raises deep concerns about what the prosecutors are doing.

The silence from the punditry bar has been deafening. We’re in new territory again, and it’s a bleak landscape indeed.

Ugh.

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Michael Cohen – Increasingly Weird and Disturbing

He surfaces from time to time in this or that article in the news feed.

The point always seems to be that he is cheering on the federal investigations that put his former client, Donald Trump, in criminal jeopardy. Let us say that again: he’s trying to help those that are out to prosecute and imprison his former client.

Not that he’s ever going to be much help. It’s hard to imagine a worse witness.

But what is intensely concerning about this is the eagerness of the press, or at least some of the press, to provide publicity for this excruciating professional betrayal, excruciating on every level for every member of the profession. One would think even for a former and disgraced member, like Cohen, there’d be limits. But no. And a press that would be horrified if the client were anyone other than the loathsome Trumpster, doesn’t even note in its reporting what a terrible betrayal this is, how damaging to our beloved “system”.

The duty of loyalty is perpetual. It survives even the death of the client.

Now, of course, we have the looming prosecution of Rudy Giuliani, apparently for conduct that occurred in the course of his representation, as an attorney, of the same loathsome Trumpster. Just as when the feds went after Cohen, there is no outrage here, even from the places you would most expect it. Even when the press increasingly portrays this basic professional obligation as something that people “hide behind“.

We are bemused, as well as disturbed. As we were last month. At this point a previously sacred rule is being routinely violated by the government, and no one seems to notice or object.

Ugh.

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Ke$ha Redux Redux

It goes on, Judah!”

Apparently someone important was reading over here and picked up on the fact – which only we seemed to find significant at the time – that having the wife of a SONY Records’ attorney sit in judgment on the Ke$ha v. Dr. Luke case was, you know, bad optics. So the litigation went to another judge but the result was the same and we’re a little puzzled by the general media silence about it, or why in the #MeToo era the headlines appear to stress that that this is a win for Dr. Luke without dwelling too much on what the case is really about. Because if they dwelt on that they would have to explain why this narrative is being treated so differently than other #MeToo narratives. Which has pretty much been our point all along.

We suppose it does not help Ke$ha’s case that Katy Perry has denied Ke$ha’s allegation that Dr. Luke had also raped her. Meaning Katy Perry. Perry denied this allegation fairly emphatically under oath at a deposition.

Does Perry have a motive to falsely deny the story? Of course. The industry is backing Dr. Luke. The industry is the source of Perry’s fame and fortune. Does that mean that Perry is lying? Of course not. Could she be lying? Sure.

That’s the kind of thing we submit to juries to decide. Or, we used to submit them to juries. But summary judgment, doncha know.

Anyway, this is where things stand now. The saga continues.

Switching gears, but still focused on puzzling media narrative choices, former New York Attorney General Eric Schneiderman has been subjected to attorney discipline and his license is suspended. No major media outlet has reported this rather startling development prominently, so far as we can tell. Oh, it’s reported. They always report. You can never accuse them of not reporting. But it’s buried somewhere.

We once harbored high hopes for Mr. Scheniderman. Dashed, of course.

But more to the purpose here: why is the Schneiderman story unworthy of being featured? Or Ke$ha’s? Then on the other hand, Governor Cuomo’s conduct has apparently been an issue for years, and only recently – and quite suddenly – has it become fodder for the news cycle. Why all the silence for so long? Why is the period of silence now over?

We wish we could provide an answer to our readers (all three of them!). We wonder whether political science is involved, as it is in so many other examples of social and institutional incoherence.

Ugh.

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Accountability Gap

Probably the last thing we’re going to say in the wake of the Derek Chauvin verdict is this, and we’ve said it before but it bears repeating in part because no one else is saying it:

Why are lawyers and courts and judges getting a complete pass while we’re actually prosecuting and imprisoning cops?

We can understand that the optics of the work of lawyers and judges are unlikely to include choke-holds and whatnot, but surely we can think it through a little more than that. People are on “qualified immunity” again, for example. Largely getting it wrong, as Scott Greenfield recently pointed out. But of course that’s not the main thing here.

The Main Thing is that the SCOTUS just made up qualified immunity to do what they do best, which is favoring the government, and generally favoring those who are more powerful and/or wealthy, those who are already winners in the game, over everyone else. And no litigant is more representative of that than….the government.

We’ve pointed this out before. Repeatedly. For years.

And why just “qualified” immunity? That’s the lesser kind of immunity afforded to cops. Judges are absolutely immune. They gave that to themselves, and just made that up, too. And they extended absolute immunity to prosecutors.

That is, why don’t we abolish absolute immunity while we’re at it?

We haven’t even scratched the surface of what is really wrong. We won’t begin to do that until some very hard questions are asked about the legal profession and the judiciary. It’s past time to do that.

In other words, sending Derek Chauvin to prison is no more than, and probably considerably less than, a band-aid. Lawyers – especially prosecutors – and judges must be called to account as well.

Ugh.

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Couple Things…

In cogitating over the significance of the Brown v. Davenport grant, we noticed this and that.

This: there was another cert petition at the SCOTUS presenting more or less the same question that had been pending and relisted and rescheduled numerous times. Then the SCOTUS denied it, and Justice Sotomayor dissented.

We don’t know what to make of this at this point, and we are still digesting overall the point of interest in Brown v. Davenport, because that seems like a difficult issue intellectually, but a really insignificant issue in practical effect. It might just be another indication of an absurd insularity at the SCOTUS that they seriously looked at either of these cases, in the end taking one up and not the other, for reasons that are probably bound to be unknowable. We think there might be a tie in to a case SCOTUS handed down about four years ago. But we’re trying to digest that thought as well.

Ugh.

That: We have little noted the recent and somewhat inexplicable political travails of New York’s Governor Andrew Cuomo. We say inexplicable because he had seemed to reach an apogee of popularity so recently what with all his COVID-19 briefings so well received by the usual suspects. But we are gratified to point out that we were expressing skepticism about the Governor all along. We don’t know why our observations gained no traction whatever whereas the seemingly less significant but more recent charges of misconduct are poised to derail the Governor’s tenure, other than the usual one: we cry out in the wilderness of a virtual kind.

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Certiorari Courts

So, you’d think with all the talk about expanding the number of SCOTUS Justices at some point rationality would settle in and we’d take a close, sober and objective look.

Nothing doing. This is the United States in post Trump world and we don’t do rational or sober or objective.

But we at LoS are going to make the effort, as we so often do, by ourselves.

There are nine Supreme Court Justices, a number that apparently hasn’t changed since 1869. In 1870 the population of the US was about 38 million. In 2021 it’s about 330 million. If we’re going to start talking about expanding the number of Justices, then, these figures suggest a number. But that number – 90 or thereabouts – is, you know, completely unworkable.

Not to mention, a ten fold increase in population does not necessarily generate, or even suggest, a 10 fold increase in the number of legal claims or legal issues. It does say something, we think. But that’s for another post.

What we’d like to focus on this morning is that the SCOTUS, however dysfunctional it may be – and we think it is quite dysfunctional – doesn’t really do a lot, because with 9 Justices in a country of 330 million it really couldn’t possibly. In practical terms the SCOTUS is less important than other institutions, and less important even than other courts.

Which brings us to the point of this post, and not some future post we may or may not ever get around to writing.

Let’s look at some other numbers, just in the federal courts. There are 673 authorized US District Court judges. This does not seem like a lot for a country of 330 million. And there are only 179 authorized judges on the federal appeals courts. Same observation there.

According to wikipedia, the number of these lower federal court judges have substantially increased since, say, 1950: three fold for District Court judges and two fold for the appeals courts.

But let’s focus on the appeals courts for now.

We submit that the number of these judges is way too low. There are 13 such courts, mainly distributed geographically across the US and its territories, and what has happened with them over the last few decades is disturbing. Their primary function is to review the judgments of the District Courts, but they do not do that in any serious way. At one point a 7th circuit judge (Judge Posner) admitted this but the published article in which he did has disappeared from the internet.

Instead, these courts have become certiorari courts like the SCOTUS. Which is to say, they pay close attention to only a small number of the appeals that are brought to them. For the SCOTUS this is out in the open, and the SCOTUS has its criteria and practitioners know what they are and work within those parameters. But the courts of appeal cannot admit that they are certiorari courts even though they function exactly like that at this point.

And what are the criteria for deciding which cases go in the “A” pile and get serious attention and the vast majority – the “B” pile – which get no attention at all? Because the courts cannot be open about how they are really functioning, the answer is…nobody really knows. Some criteria are predictable: there’s a lot of money involved, or prestigious law firms are involved, or the government is a party and in a hen’s teeth rare occurrence actually lost at the District Court level.

Now that we think about it, those are pretty much the criteria. With a few others we may mention elsewhere. In that other post we may get to someday.

We think one of the biggest problems with the federal judicial system is the absence of meaningful review on appeal, and one of the primary drivers of that is….not enough appeals court judges. It takes at least three of them on a panel to entertain an appeal, so functionally there are only 60 panels to hear appeals from 673 District Court judges. To have meaningful appellate review for the cases that warrant it, we’d hazard a guess that that 60 number should double.

At least double.

We noted elsewhere a study that we can no longer find indicating that one of the primary obstacles to expanding the number of federal appeals court judges surprisingly comes from the judges themselves, who apparently feel that such a move would diminish their prestige.

That says a lot right there. And we can’t say more, this morning, so we may have to return to the subject at another time to expand upon these themes. We know our readers (all three of them!) will be impatient with this gap, but we have no alternative at the moment and pledge our best efforts.

In other words, to be continued………

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Error Correction

The SCOTUS doesn’t do it. Except when it does.

And when is that? When some poor schmuck gets relief on habeas corpus in a federal court. The SCOTUS has been, and remains, anxious to overturn any such ruling.

And it just did so again this morning. 8-1 vote. Sotomayor dissents but doesn’t say anything.

It is quite a remarkable thing, really. Breath taking, this long standing SCOTUS penchant to eradicate the Great Writ in federal courts, disregarding their own rules to do so. See SCOTUS Rule 10:

A petition for a writ of certiorari is rarely granted when the
asserted error consists of erroneous factual fndings or the
misapplication of a properly stated rule of law

But when the government is the Petitioner and it’s a hen’s teeth rare habeas grant the Justices are all over the facts in order to summarily reverse. Last time it was the 9th circuit. This time it’s the 6th.

This is one of those silent outrages. You’d think our press would be all over this kind of thing but they aren’t.

Maybe more on this later.

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Class Warfare

So back in December we wrote about a case the SCOTUS took up, lamenting the waste of time and resources thrown at the issue and asserting our view that the Petitioners benefit from SCOTUS snobbery.

The case will be argued on Monday. It gets attention not from the mainstream press, which is preoccupied with 78 year old President Biden’s first news conference and the ongoing COVID-19 pandemic; but rather from the specialized legal profession press. Like Law.com. (paywall alert!)

One part of this is rich however. The issue deals in part with the boilerplate representations in its securities disclosures that Goldman Sachs “…puts its clients’ interests first.” Goldman is arguing, apparently without embarrassment and without being called on it in either the financial press or the mainstream media, that the falsehood of such a generic representation doesn’t matter and that it cannot form the basis for a class certification.

We seem to recall that there was a good deal of email traffic from Goldman Sachs back in the day demonstrating, rather excruciatingly, that the company’s culture was all too aware of the false nature of this representation, that high up corporate officers actually held their “clients” in contempt and believed in exploiting them to enhance corporate profits and their own career advancement, an actual and pervasive concern that clearly trumped the puffery directed at duping the hapless clients.

Indeed, Goldman Sachs was pushing its ostensibly cherished clients to buy into investments it was shorting. Now it wants the SCOTUS to hold that there is yet another reason – beyond the ridiculous Iqbal and Twombly, and beyond the already horrible and grossly establishment favorable summary judgment rules – to keep that kind of question from a jury.

We understand. Goldman Sachs might not survive a few jury verdicts informed by the kind of information that a trial would involve.

If there’s any semblance of perspective – to say nothing of a sense of justice – left at the SCOTUS, Goldman Sachs’ lawyers should have a pretty rough time on Monday.

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