Quotulatiousness

October 14, 2017

Brexit hangover – a proposed deal for the “Remoaners”

Filed under: Britain, Europe, Politics — Tags: , , , , — Nicholas @ 04:00

In Spiked, Brendan O’Neill offers an olive branch to the Remoaners:

I propose a deal with Remoaners: Leavers will stop calling you enemies of democracy when you stop behaving like enemies of democracy. Sound good?

By Remoaners, I don’t mean the 16.1million who voted Remain, the vast majority of whom are not part of any elite, and a huge chunk of whom now accept Brexit must happen. I don’t even mean those sad people who traipse through the streets shouting ‘Brex-shit!’ and who agitate, or at least tweet, for Britain to stay in the EU: the rights to protest and speak are essential to democracy and these people must be free to fulminate for as long as they like against the democratic will. No, I mean those sections of the elite who have sworn their financial, political and institutional clout to the cause of preventing or diluting Brexit. You guys: we’ll stop calling you destroyers of democracy when you stop trying to destroy democracy, cool?

The war on Brexit – which is a war on the largest democratic mandate in British history, on the very right of the masses to decide the fate of their nation – is getting serious. For too long Leavers have had a tendency to chortle at the myriad spittle-producing haters of Brexit in business, politics, the law. But it’s not funny anymore, because they’re in the ascendancy. Not courtesy of democracy; the people have rejected their preference for oligarchy over democracy, for technocracy over debate, for expertise over the public’s opinions and beliefs. No, their rise, their influence, is built on their economic supremacy and behind-closed-doors influence, on the fact that they are wealthier, better connected and – let’s be frank – more ruthless than us, the demos.

The seriousness of this bloodless coup d’etat against Brexit has been perfectly and brutally summed up this week in the elitists’ suggestion that we revoke Article 50. Not content with seeking to wound Brexit – by, for example, suggesting we stay under the jurisdiction of the European Court of Justice, or institute a second referendum even before Brexit has become a reality – now they’re openly calling for the whole thing to be reversed. The Observer revealed on Sunday that, contrary to what some ministers have intimated, Article 50 is revocable. This is all the proof we needed, said a QC in the Guardian, that it is ‘not too late to step back from the Brexit brink’. Translation: the plebs, the unwashed throng, took us to a political cliff edge with their strange, prejudiced passions, and now it falls to the clever, the legally minded, the rational, to put Britain back on course.

August 12, 2017

Troll the Patent Trolls

Filed under: Business, Government, Humour, Law, USA — Tags: , , — Nicholas @ 05:00

Published on 11 Aug 2017

Patent trolls are on the run. Let’s finish them off.
———
It’s been a bad year for patent trolls, from a Supreme Court decision squelching their ability to funnel lawsuits to East Texas, to this week’s ruling that Personal Audio LLC can’t claim it owns a patent on the entirety of podcasting. In the latest Mostly Weekly, Reason’s Andrew Heaton explores what patent trolls are, the damage they do, and the next step in driving them out of courtrooms and back into dank caves.

Trolls camp out on piles of weak and frivolous patents, hoping to one day sue inventors and businesses. Many of the patents they register or buy are vague, representing novel ideas only insofar as trolls are innovative at finding things they didn’t invent to claim legal ownership of. It doesn’t matter that these patents wouldn’t hold up in court, because a business is more likely to pay off a troll than to hire an expensive attorney to fight them. Trolls suck more than twenty billion dollars out of the economy each year.

The parasitical nature of “non-practicing entities” (the PC term for trolls) has raised questions about whether the modern patent system helps or hinders innovation, and if the best solution is for comprehensive reform or just to burn the whole thing down.

Heaton has an idea to hinder patent trolls. It may not be a silver bullet, but it will definitely piss them off.

Mostly Weekly is hosted by Andrew Heaton with headwriter Sarah Rose Siskind.
Script by Andrew Heaton with writing assistant from Sarah Siskind
Edited by Austin Bragg and Sarah Rose Siskind.
Produced by Meredith and Austin Bragg.
Theme Song: Frozen by Surfer Blood.

May 23, 2017

QotD: The dangers of career “dualization”

Filed under: Business, Economics, Quotations — Tags: , , , , — Nicholas @ 01:00

This concept [of dualization] applies much more broadly than just drugs and colleges. I sometimes compare my own career path, medicine, to that of my friends in computer programming. Medicine is very clearly dual – of the millions of pre-med students, some become doctors and at that moment have an almost-guaranteed good career, others can’t make it to that MD and have no relevant whatsoever in the industry. Computer science is very clearly non-dual; if you’re a crappy programmer, you’ll get a crappy job at a crappy company; if you’re a slightly better programmer, you’ll get a slightly better job at a slightly better company; if you’re a great programmer, you’ll get a great job at a great company (ideally). There’s no single bottleneck in computer programming where if you pass you’re set for life but if you fail you might as well find some other career path.

My first instinct is to think of non-dualized fields as healthy and dualized fields as messed up, for a couple of reasons.

First, in the dualized fields, you’re putting in a lot more risk. Sometimes this risk is handled well. For example, in medicine, most pre-med students don’t make it to doctor, but the bottleneck is early – acceptance to medical school. That means they fail fast and can start making alternate career plans. All they’ve lost is whatever time they put into taking pre-med classes in college. In Britain and Ireland, the system’s even better – you apply to med school right out of high school, so if you don’t get in you’ve got your whole college career to pivot to a focus on English or Engineering or whatever. But other fields handle this risk less well. For example, as I understand Law, you go to law school, and if all goes well a big firm offers to hire you around the time you graduate. If no big firm offers to hire you, your options are more limited. Problem is, you’ve sunk three years of your life and a lot of debt into learning that you’re not wanted. So the cost of dualization is littering the streets with the corpses of people who invested a lot of their resources into trying for the higher tier but never made it.

Second, dualized fields offer an inherent opportunity for oppression. We all know the stories of the adjunct professors shuttling between two or three colleges and barely making it on food stamps despite being very intelligent people who ought to be making it into high-paying industries. Likewise, medical residents can be worked 80 hour weeks, and I’ve heard that beginning lawyers have it little better. Because your entire career is concentrated on the hope of making it into the higher-tier, and the idea of not making it into the higher tier is too horrible to contemplate, and your superiors control whether you will make it into the higher tier or not, you will do whatever the heck your superiors say. A computer programmer who was asked to work 80 hour weeks could just say “thanks but no thanks” and find another company with saner policies.

(except in startups, but those bear a lot of the hallmarks of a dualized field with binary outcomes, including the promise of massive wealth for success)

Third, dualized fields are a lot more likely to become politicized. The limited high-tier positions are seen as spoils to be distributed, in contrast to the non-dual fields where good jobs are seen as opportunities to attract the most useful and skilled people.

Scott Alexander, “Non-Dual Awareness”, Slate Star Codex, 2015-07-28.

May 12, 2017

QotD: Don’t talk to the police without legal counsel

Filed under: Law, Liberty, Quotations, USA — Tags: , , — Nicholas @ 01:00

“Don’t talk to law enforcement without consulting a lawyer” is simple advice. Anyone can follow it. Most of us understand why it’s a good idea. But too many people reject the advice because of a common and misplaced fear. It’s the fear that if they don’t return that detective’s call immediately, if they don’t invite the FBI agents at their door in and answer their questions, if they don’t cooperate, they will be seen as the sort of person who wants a lawyer. They will be seen as someone suspicious. They will lose the opportunity to “clear all this up” by “cooperating.”

If I say I want to talk to a lawyer, won’t I make things worse?

No. Almost certainly not.

When you view any interaction as your only opportunity to “cooperate,” you’re accepting a false premise, a law enforcement pressure tactic calculated to get you to act against your best interests and better judgment. On television, cops constantly tell suspects “you have to talk now, talk first, or we’ll give a deal to your buddy.” On television, that proposition is presented as true. But real life isn’t like television. In real life, that “now or never” proposition is almost always false. In 21 years practicing criminal law, I have never seen a circumstance where stopping the interview and talking to a lawyer would have destroyed someone’s opportunity to talk to law enforcement and resulted in harm to their best interests. There’s always been another chance, once the client has talked to a lawyer and taken advantage of competent advice about the situation.

The police want you to talk immediately, now, when they are unexpectedly at your front door. They want you to be startled, nervous, out-of-sorts. They want you to blurt things out — either admit true things that they can use against you, or make false statements that they can disprove and use to show you’re a liar. They don’t want you to have time to collect your thoughts, to refresh your memory about the events they are asking about, to look at any relevant documents or evidence, or to figure out the legal significance of the situation. The police know that’s against your best interests. They know that you should talk to a lawyer first. How do you know that they know that? You know because police officers consistently push for state laws and union rules allowing them to talk to a lawyer, review evidence, and take advantage of a waiting period before being interviewed about use-of-force incidents.

Good people — honest people — tend to think “I’ve done nothing wrong, so if I tell the truth now, I can clear this up.” They think “talking can’t hurt me because I haven’t done anything wrong, and because I won’t lie.” It would be wonderful if that were true, but it’s not.

Ken White, “‘If I Just Talk To The Police I Can Clear This Up’ — The Dangerous Delusion”, Brown, White & Osborn, 2015-09-24.

January 13, 2017

QotD: Markets and politics

Filed under: Economics, Politics, Quotations, USA — Tags: , , — Nicholas @ 01:00

Markets adapt to political changes, and the hierarchy of values that distinguishes between an hour’s worth of warehouse management, an hour’s worth of composing poetry, an hour’s worth of brain surgery, and an hour’s worth of singing pop songs is not going to change because a politician says so, or because a group of politicians says so, or because 50 percent + 1 of the voters say so, or for any other reason. To think otherwise is the equivalent of flat-earth cosmology. In the long term, people’s needs and desires are what they are; in the short term, you can cause a great deal of chaos in the economy and you can give employers additional reasons to automate rote work. But you cannot make a fry-guy’s labor as valuable as a patent lawyer’s by simply passing a law.

This is not a matter of opinion — that is how the world actually works. One of the many corrosive effects of having a political apparatus and a political class dominated by lawyers is that the lawyerly conflation of opinion with reality becomes a ruling principle. Lawyers and high-school debaters (the groups are not alien to one another) operate in a world in which opinion is reality: If you convince the jury or the debate judges that your argument is superior, or if you can get them to believe that your position is the correct one, then you win, and the question of who wins is the most important one if you are, e.g., on trial for murder. But if you shot that guy you shot that guy, regardless of what the jury says — facts are facts. Galileo et al. were right (or closer to right) about the organization of the solar system than were Fra Hieronimus de Casalimaiori and the Aristotelians, and the fact that Galileo lost at trial didn’t change that.

Kevin D. Williamson, “Bernie Sanders’s Dark Age Economics”, National Review, 2015-05-27.

January 3, 2017

Can this marriage be saved?

Filed under: Politics, USA — Tags: , , — Nicholas @ 03:00

Megan McArdle reflects on what makes a marriage successful … politically:

While traveling a few months back, I ended up chatting with a divorce attorney, who observed that what we’re seeing in America right now bears a startling resemblance to what he sees happen with many of his clients. They’ve lost sight of what they ever liked about each other; in fact, they’ve even lost sight of their own self-interest. All they can see is their grievances, from annoying habits to serious wrongs. The other party, of course, generally has their own set of grievances. There is a sort of geometric progression of outrage, where whatever you do to the other side is justified by whatever they did last. They, of course, offer similar justifications for their own behavior.

By the time the parties get to this state, the object is not even necessarily to come out of the divorce with the most money and stuff; it’s to ensure that your former spouse comes out with as little as possible. People will fight viciously to get a knickknack neither of them particularly likes, force asset sales at a bad loss, and otherwise behave as if the victor is not the person who goes on to live a productive and happy life, but the one who makes it impossible for the ex to do so.

However damaging these battles are, at least they eventually end. Unfortunately, there is no divorce court for nations, and our last trial separation ended in the deaths of about 2 percent of the population. However much you have come to despise the other party, they’re still going to be there: tracking dirt into the halls of Congress, demanding an equal say in the direction of the ship of state. It doesn’t matter if you hate their ideas, their habits, and everything else about them; they’re not going anywhere. So you two had better figure out how to live together.

And you can easily imagine partisans of both sides angrily decrying “But they started it!”

November 24, 2016

QotD: Black hats and white hats

Filed under: Economics, Government, Politics, Quotations, USA — Tags: , , , , — Nicholas @ 01:00

When considering the major failures of recent American governance – the 2008-09 financial crisis, the catastrophe that is U.S. policy in the Mideast – the one thing that any honest-minded person must conclude is: Nobody meant for things to turn out this way. It is impossible to make precise predictions about the effects of government policy; that is the nature of systems characterized by high levels of complexity. It’s one thing to predict that it’ll be colder during the winter, but another thing to predict down to the millimeter how much snow will fall on a particular acre in rural Maine on the third Wednesday in February, which is really what we expect from our public policy.

Classic cowboy movies, in contrast, are not complex at all: The good guys wear white hats, the bad guys wear black hats, all hats remain firmly affixed to all heads at all times, and that’s that. You can pretty much always predict how an old Western is going to turn out.

But that isn’t how the real world works.

On Tuesday, I had a conversation about Elizabeth Warren and Wall Street, pointing out that the popular version of that story – Senator Warren vs. Wall Street – is so oversimplified as to be not merely useless but misleading. The reality is that there are people working on Wall Street who dislike Senator Warren – investors and bankers, mainly – and people who adore her – notably Wall Street lawyers, who are reliable donors to her campaign and to those of other Democrats. My naïve interlocutor said: “Hopefully, it’s the lawyers that fight against Wall Street,” as though there were such a thing, as though there weren’t nice progressive lawyers in Manhattan who jokingly refer to their yachts as the SS Dodd-Frank.

Spend any time writing about this sort of thing and you’ll hear angry and panicked denunciations of derivatives-trading from people who pretty clearly do not know what a derivative is, just as you’ll hear paeans to Glass-Steagall sung by people who don’t understand the difference between a commercial bank and an investment bank, who don’t know how Goldman-Sachs makes its money or what it is that Standard & Poor’s does.

But they’re quite sure they know who is wearing the black hats.

Kevin Williamson, “Black Hats and White Hats”, National Review, 2015-04-15.

July 26, 2016

Craft brewing has a growing trademark problem

Filed under: Business, Law, USA — Tags: , , , — Nicholas @ 02:00

At Techdirt, Timothy Geigner predicts that the craft beer market is getting close to trademark armageddon … they’re running out of punny names they can legally use for their beer:

With all the trademark actions we’ve seen taken these past few years that have revolved around the craft beer and distilling industries, it seems like some of the other folks in the mass media are finally picking up on what I’ve been saying for at least three years: the trademark apocalypse is coming for the liquor industries. It’s sort of a strange study in how an industry can evolve, starting as something artisan built on friendly competition and morphing into exactly the kind of legal-heavy, protectionist profit-beast that seems like the very antithesis of the craft brewing concept. And it should also be instructive as to how trademark law, something of the darling of intellectual properties in its intent if not application, can quickly become a major speed bump for what is an otherwise quickly growing market.

All of this appears to have caught the eye of Sara Randazzo, blogging at the Wall Street Journal, who notes that the creatively-named craft beers that have been spewing out of microbreweries across the country may be running out of those creative names.

    As today’s Wall Street Journal explores, legal disputes in the beer world are becoming the norm as new craft breweries spring up at a rate of roughly two per day. Trademark lawyers have gotten so used to the beer disputes that they are now turning on each other. Some dozen lawyers are contesting San Diego lawyer Candace Moon’s attempt to trademark the term “Craft Beer Attorney,” which she says she rightfully deserves.

Within the rest of the post, Randazzo highlights one dispute between craft brewers in order to give a sense of just how small these belligerent parties are. It’s a dispute that escaped even my radar, despite what has become something of my “beat” around Techdirt. Three professionals with day jobs decided to make a go at brewing craft beer and named their company Black Ops Brewing, the pun resting upon “hops” used in their beer, while also serving as a nod to their family members that served in the military. Three guys making beer, but the trademark dispute came almost immediately.

The problem is that once you’ve been granted a trademark, you have to defend it early and often or you’ll lose it. This means tiny companies with a couple of trademarked products are pretty much required to lawyer-up and threaten to go nuclear at the faintest hint of an infringement for fear they’ll lose the right that they’ve claimed. The gains from pursuing a possible infringement are usually tiny and the legal costs almost always outweigh any “winnings”, but the risks of not doing so are potentially huge. This is an example of a perverse incentive in law.

July 25, 2016

QotD: The Nac Mac Feegle

Filed under: Humour, Law, Quotations — Tags: , , — Nicholas @ 01:00

“They think written words are even more powerful,” whispered the toad. “They think all writing is magic. Words worry them. See their swords? They glow blue in the presence of lawyers.”

Terry Pratchett, The Wee Free Men, 2003.

December 24, 2015

So what about that Mens Rea stuff anyway?

Filed under: Law, Liberty, USA — Tags: , , — Nicholas @ 04:00

Scott Greenfield on an important legal quirk:

The inclusion of a specific mens rea requirement is common in criminal laws. For example, first degree murder usually requires the “intent to kill,” whereas lesser degree murders or manslaughters may only require “recklessness.”

So why do some laws lack a mens rea requirement? They tend (though are hardly so limited) to be regulatory laws that are backed up by criminal sanctions. There are tens of thousands of laws that demand people do or not do some remarkably inconsequential act, such as not throwing undersized fish over the side of a boat.

The way Congress compels compliance with these trivial regulations is to enforce it with a criminal sanction, such as “failure to do X is a felony punishable by up to seven million years imprisonment.” And there are, literally, tens of thousands of opportunities to visit Club Fed.

These laws have been subject to strict liability, not because they are so evil and harmful, as they are almost invariably malum prohibitum laws, wrongs only because Congress says so, not because they reflect some inherent immorality. The problem, as was made clear in the fish case or the Gibson guitar case, is that no one knows all the tens of thousands of regulations the government enacts, creating a trap for the unwary when there is no rational reason to believe that conduct is wrong, no less criminal.

Of course, as the DoJ points out, the maxim that “ignorance of the law is no excuse” (except if you’re a cop) has been around for centuries. What hasn’t been around for centuries, however, are the tens of thousands of trivial regulations that can land someone’s butt in prison just as well as a nice drug conspiracy. So Main Justice didn’t show Sensenbrenner’s bill the love.

    If the bill passes, the result will be clear, said Melanie Newman, the Justice Department spokeswoman. “Countless defendants who caused harm would escape criminal liability by arguing that they did not know their conduct was illegal” she said.

By “countless,” she means too few to count. Or she means nothing other than a new law would limit prosecutors to only those defendants who deserved to be prosecuted. That would cause sad prosecutor tears.

October 24, 2015

The (vicious) economic model of the music industry

Filed under: Business, Law, Media — Tags: , — Nicholas @ 02:00

A post by Kristine Kathryn Rusch from a few years ago, talking about the “standard” abuses musicians were subject to under 1990s-era studio contracts:

Those of us who exist on the periphery of the music industry have heard for years that new artists and even established ones can’t make money in the traditional music industry.

I didn’t understand that until I read Jacob Slichter’s So You Wanna Be A Rock ’N Roll Star several years ago. He wrote about a system in which a musician who signed a deal with a major record label could end up owing the label tens if not hundreds of thousands of dollars. He delineated it all out in a long book that showed just how the label ended up taking a naïve artist and putting him into debt.

Slichter said this was why so many rock bands disbanded — because the band itself was a legal entity and as a legal entity it was in hock to the studio. The only way the musicians could continue to perform and try to earn money from their music was to create a new legal entity and abandon the old one. Otherwise, they were working in a kind of indentured servitude.

Think this is just sour grapes from one musician who didn’t make it big? Look at a link that a reader from last week gave me. It’s from a magazine I’ve never heard of called Maximum Rock ’n’ Roll and was written by rock producer named Steve Albini. I’m not so sure how dodgy this website is that I’m sending you to — I don’t know if they violated Mr. Albini’s copyright by reproducing this piece. I’m going to trust that they didn’t, because y’all need to see these numbers.

For those of you who can’t be bothered to check the link, Albini lays out the line-by-line “costs” that the musicians agreed to when they signed their record deal. The musicians received a $250,000 advance. But by the time the album got released and the tour was completed, the advance was gone — and the musicians owed the record label $14,000.

You’re understanding me right. The “standard” contractually negotiated costs that the musicians agreed would come out of their pockets came to $264,000. The only way for the artists to recoup that loss was to sign a new deal with the label, often at lesser terms. If the label even wanted to sign them. (That part is courtesy of Slichter)

How much did the label earn — with the same costs deducted?

$710,000. In 1990s dollars.

Albini also lists how much each “player” made. He includes a producer ($90,000), a manager ($51,000), an agent, ($7500) and a lawyer ($12,000).

He writes, “The band is now ¼ of the way through its contract, has made the music industry more than 3 million dollars richer, but is in the hole $14,000 in royalties. The band members have each earned about 1/3 as much as they would working at a 7-11, but they got to ride in a tour bus for a month. The next album will be about the same, except that the record company will insist they spend more time and money on it. Since the previous one never ‘recouped,’ the band will have no leverage and will oblige.”

October 22, 2015

Eviction notice

Filed under: Humour, Law — Tags: — Nicholas @ 04:00

The earliest known eviction notice:

Dear Mr. Adam,

I am instructed by my client to serve the enclosed eviction order concerning the property you now occupy.

He feels that he is justified in this action in view of your recent behaviour, which constitutes a breach of the terms of your lease.

You will remember the Clause 4 in your lease permitted you full access to the garden on condition that you undertook ‘to dress it and keep it’, and that my client generously allowed you to take for your own use any of the fruits and flower which grow there. However, he specified quite plainly that you were not under any circumstances to touch the prize-winning fruit tree in the south-east corner. This clause has been broken quite blatantly by your wife, who has freely admitted taking fruit from this tree. Her excuse, that she thought it would be all right, is considered by my client to be inadequate.

I should also like to add that I personally resent your wife’s insinuation that I not only gave her permission to take the fruit, but actually encouraged her to do so.

Read the whole thing.

October 17, 2015

Ken White of Popehat.com Talks Blogging, Anonymous Speech

Filed under: Law, Liberty, Politics, USA — Tags: , , , — Nicholas @ 03:00

Published on 13 Oct 2015

Ken White, founder of the influential group blog Popehat, tells FIRE how he got interested in the First Amendment and discusses anonymous speech on the Internet.

White, who writes for Popehat on a variety of issues, including the First Amendment, criminal justice, and the legal system, said a college project at Stanford University “during … one of the upsurges of controversy on campus about speech codes and speech issues,” opened his eyes to the nuances of the First Amendment.

“I wound up doing my senior honors thesis in college with a law school professor on the subject of legal restrictions on hate speech,” White said. “I thought it was very much emblematic of a very American problem, and that is: How do we express our disapproval — our moral disapproval — for bad things like bigotry, while not restricting liberties?”

Popehat seems to be a space created to do exactly that. The forum has evolved into a blog the contributors describe as a “group complaint” about “whatever its authors want.”

That freedom hasn’t always come so easily for White, who blogged anonymously for more than five years due to concerns his honest blogging might harm his career. He still thinks anonymous speech provides both benefits and drawbacks.

“I think the right to anonymous speech is very central in the First Amendment and in American life,” said White. “Throughout American history, people have said unpopular things, incendiary things, politically dangerous things behind the shield of anonymity. A lot of bad things come with that. There’s some really terrible, immoral, anonymous behavior on the Internet.”

White said there’s also a risk to writing anonymously, and that even while he benefitted from posting behind the security of an online persona, he supports the rights of others to try and discover his true identity. Eventually, White said he gave up the pretext and started blogging under his own name.

For more from White, including why free speech “catchphrases” harm First Amendment discourse, watch the above video.

October 13, 2015

There “is no such thing as an American foreign policy”

Filed under: Government, USA — Tags: , , , — Nicholas @ 03:00

In the Wall Street Journal, Niall Ferguson describes the “Real Obama Doctrine” in US foreign policy:

Even before becoming Richard Nixon’s national security adviser, Henry Kissinger understood how hard it was to make foreign policy in Washington. There “is no such thing as an American foreign policy,” Mr. Kissinger wrote in 1968. There is only “a series of moves that have produced a certain result” that they “may not have been planned to produce.” It is “research and intelligence organizations,” he added, that “attempt to give a rationality and consistency” which “it simply does not have.”

Two distinctively American pathologies explained the fundamental absence of coherent strategic thinking. First, the person at the top was selected for other skills. “The typical political leader of the contemporary managerial society,” noted Mr. Kissinger, “is a man with a strong will, a high capacity to get himself elected, but no very great conception of what he is going to do when he gets into office.”

Second, the government was full of people trained as lawyers. In making foreign policy, Mr. Kissinger once remarked, “you have to know what history is relevant.” But lawyers were “the single most important group in Government,” he said, and their principal drawback was “a deficiency in history.” This was a long-standing prejudice of his. “The clever lawyers who run our government,” he thundered in a 1956 letter to a friend, have weakened the nation by instilling a “quest for minimum risk which is our most outstanding characteristic.”

Let’s see, now. A great campaigner. A bunch of lawyers. And a “quest for minimum risk.” What is it about this combination that sounds familiar?

I have spent much of the past seven years trying to work out what Barack Obama’s strategy for the United States truly is. For much of his presidency, as a distinguished general once remarked to me about the commander in chief’s strategy, “we had to infer it from speeches.”

July 26, 2015

The problems when you try to resolve complicated discrimination problems with laws

Filed under: Business, Law, Liberty, USA — Tags: , , , , — Nicholas @ 03:00

Warren Meyer explains why he — who organized and lead an effort to legalize gay marriage in Arizona — is not reflexively in favour of using the blunt force of the law to “solve” problems of discrimination:

There are multiple problems with non-discrimination law as currently implemented and enforced in the US. Larger companies, for example, struggle with disparate impact lawsuits from the EEOC, where statistical metrics that may have nothing to do with past discrimination are never-the-less used to justify discrimination penalties.

Smaller companies like mine tend to have a different problem. It is an unfortunate fact of life that the employees who do the worst job and/or break the rules the most frequently tend to be the same ones with the least self-awareness. As a result, no one wants to believe their termination is “fair”, no matter how well documented or justified (I wrote yesterday that I have personally struggled with the same thing in my past employment).

Most folks grumble and walk away. But what if one is in a “protected group” under discrimination law? Now, not only is this person personally convinced that their firing was unfair, but there is a whole body of law geared to the assumption that their group may be treated unfairly. There are also many lawyers and activists who will tell them that they were almost certainly treated unfairly.

So a fair percentage of people in protected groups whom we fire for cause will file complaints with the government or outright sue us for discrimination. I will begin by saying that we have never lost a single one of these cases. In one or two we paid someone a nominal amount just to save legal costs of pursuing the case to the bitter end, but none of these cases were even close.

[…]

To make all this worse, many employees have discovered a legal dodge to enhance their post-employment lawsuits (I know that several advocacy groups in California recommend this tactic). If the employee suspects he or she is about to be fired, they will, before getting fired, claim all sorts of past discrimination. Now, when terminated, they can claim they where a whistle blower that that their termination was not for cause but really was retaliation against them for being a whistle-blower.

I remember one employee in California taking just this tactic, claiming discrimination just ahead of his termination, though he never presented any evidence beyond the vague claim. We wasted weeks with an outside investigator checking into his claims, all while customer complaints about the employee continued to come in. Eventually, we found nothing and fired him. And got sued. The case was so weak it was eventually dropped but it cost us — you guessed it — about $20,000 to defend. Given that this was more than the entire amount this operation had made over five years, it was the straw that broke the camel’s back and led to us walking about from that particular operation and over half of our other California business.

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