Posts tagged ‘Eugene Volokh’

Ha! Not in California

Eugene Volokh is writing about a case against an attorney who defrauded his firm.  The details are not important, what caught my eye is what is highlighted below:

Once again, this case does not turn on the bare fact that Attorney Siderits wrote-down his time; this case is about Attorney Siderits abusing his write-down discretion and lying to his law partners in order to collect almost $47,000 in bonuses to which he was not entitled. Attorney Siderits cannot seriously contend that firms must have a written policy forbidding stealing and lying before a misconduct charge for one of these actions can be sustained.

That certainly makes sense, but it does not apply at the California EDD, which administers (among other things) the state unemployment insurance program.  We terminated an employee for accepting money from a customer to provide a service, then pocketing the money and not providing the service.  I call this "theft", and had assumed all would understand that stealing from customers is a firing offense.   When California sent out its unemployment paperwork, we said this employee had been fired "for cause", which in many states means that they are ineligeable for full unemployment payments.

However, after some back and forth, I was eventually informed by the EDD that since I did not have an explicit policy in the employee manual that said "employees may not steal money from customers", then they could not recognize that she was fired for cause.  Even if I had put that in the manual, it probably would not have counted because the next thing EDD asked for is something in writing proving, with the employee's signature, that she had read that passage.   And from past experience with the EDD, my guess is that they likely would not have accepted firing on the first offense, but would have insisted we needed to have her steal from multiple customers, with written warnings each time, before we terminated her.

Basically, what this all means is that while the law technically says people can't be paid unemployment if fired for cause, California has made the standards of proof so absurd that this requirement is meaningless.  Everyone is going to get unemployment.

As it turns out, there is a silver lining from this lack of diligence by the state.  My business is seasonal and I can only offer summer work.   Most of my employees are happy with this, as they like to take the winter off (many are retired).  One is not supposed to collect unemployment if he or she is not actively seeking work, but my employees have discovered that California does zero dilligence to check this.  So some of them lie and say they are looking for work over the winter when they are not, and collect unemployment.  I know of two couples who spend their winter in Mexico but still collect their California unemployment like clockwork.   Not only is California not dilligent about it, but when I tried to report someone I knew who was collecting unemployment but not even in the country, I was threatened by the EDD official that I was risking substantial personal liability by submitting such a claim and opening my self up to civil suits and even prosecution for harassing the worker.  So of course I dropped it.

So what is the silver lining?  California is so eager to hand money in the off-season to support my employees' seasonal vacations that my unemployment insurance premium rate is already the worst possible.  My rates can't go any higher.  So if they insist on giving state money to a thief, it's not coming out of my pocket.

I Have A Lot of Respect for Free Speech Lawyers

According to Ken and Popehat, Eugene Volokh is defending Crystal Cox in a free speech case.  Here is some background on Ms. Cox.  In discussing Volokh's defense, Ken makes the same point I have on many occasions:

Crystal Cox is not a sincere supporter of free speech. Crystal Cox is not a defender of the First Amendment. Crystal Cox supports free speech for Crystal Cox, but for her own critics, Crystal Cox is a vigorous (if mostly incoherent) advocate for broad and unprincipled censorship.

This should not surprise us. As I mentioned before, free speech cases often involve defending vile speech by repugnant people. Nearly as often, those repugnant people are no respecters of the rights of anyone else. Do you think the Nazis who marched at Skokie, if they had their way, would uphold the free speech rights of the religious and ethnic minorities who protested them? Do you imagine that Fred Phelps' church, given its choice, would permit the blasphemous and idolatrous freedoms it rails against?

No. We extend constitutional rights to people who, given the opportunity, would not extend the same rights to us. That's how we roll.

Crystal Cox is no different. Eugene Volokh and the Electronic Frontier Foundation are appealing the judgment against her to vindicate (through however flawed a vessel) important free speech issues.

But it is one thing for me to blog that everyone, including Illinois Nazis and Crystal Cox, should have free speech rights.  It's quite another to actually spend days of one's time on a pro bono basis actually handling her legal work.  So kudos to Volokh -- we all know the sewers need to be cleaned out from time to time but few of us actually will jump in and do it.

Things No One Mentions When They Whine for the Good Old Days

Via Eugene Volokh:

Year Food spending as share of disposable income
1929 23.4%
1939 21.3%
1949 22.1%
1959 17.8%
1969 13.7%
1979 13.4%
1989 10.9%
1999 10.2%
2000 9.9%
2001 9.9%
2002 9.8%
2003 9.8%
2004 9.7%
2005 9.8%
2006 9.9%

My sense is the same pattern would emerge for gasoline prices, electricity (if you had it), phone service (if you had it), cross-country transportation, air conditioning, etc.

 

A Statist View of Rights

In the statist's world, your rights are whatever the state says they are.  You can really see this concept at work in this breathtakingly bad Canadian decision reported by Eugene Volokh:

Richard Warman, a lawyer who worked as an investigatory for the
Canadian Human Rights Commission, often filed complaints against "hate
speech" sites "” complaints that were generally upheld under Canadian
speech restrictions. Fromm, a defender of various anti-Semites and
Holocaust denials, has been publicly condemning Warman for, among other
things, being "an enemy of free speech." Warman sued, claiming that
these condemnations are defamatory.

Friday, the Ontario Superior Court held for Warman
"” chiefly on the grounds that because Warman's claims were accepted by
the legal system, they couldn't accurately be called an attack on free
speech.

This case leaves one's head just spinning with ironies, not the least because it is a great example of how libel law as practiced in many western countries outside the US is itself a great enemy of free speech.  The logic chain used by the judge in this case should make every American appreciative of our Constitutional system and our view of rights as independent of (and if fact requiring protection from) the state:

[25] The implication, as well as the clear of meaning of the words
["an enemy of free speech" and "escalated the war on free speech"], is
that the plaintiff is doing something wrong. The comment "Well, see
your tax dollars at work" also implies that Mr. Warman misused public
funds for this "war on free speech".

[26]  The plaintiff was using legal means to complain of speech that he alleged was "hate" speech.

[27]  The evidence was that Mr. Warman was successful in both the complaint and a libel action which he instituted.

[28] Freedom of expression is not a right that has no boundaries.
These parameters are outlined in various legislative directives and
jurisprudence. I find Mr. Fromm has exceeded these. This posting is
defamatory.

The implication is that there are no fundamental individual rights.  Rights are defined instead by the state and are whatever is reflected in current law.  In this decision, but fortunately not in the US, the law by definition can't be wrong, so taking advantage of a law, in this case to silence various groups, is by definition not only OK, but beyond the ability of anyone to legally criticize.  There is much more, all depressing.  Here is one example of a statement that was ruled defamatory:

Thank you very much, Jason. So, for posting an opinion, the same sort
of opinion that might have appeared in editorial pages in newspapers
across this country, Jason and the Northern Alliance, his site has come
under attack and people who are just ordinary Canadians find themselves
in front of the courts for nothing more serious than expressing their
opinion. This is being done with taxpayers' money. I find that
reprehensible.

OK, so here is my opinion:  Not only is Richard Warman an enemy of free speech, but the Canadian legislature that passed this hate-speech law is an enemy of free speech and the Canadian Supreme Court is an enemy of free speech.  Good enough for you hosers?

I guess I will now have to skip my ski trip to Whistler this year, to avoid arrest at the border.

It's OK to be Scared. Just Tell Us.

I agree with Eugene Volokh when he observes that the Opus comic rejected by the Washington Post is pretty dang tame.  I found the cartoon to be poking fun more at men and male attitudes than at Islam.  I don't think there is any way the Post can argue now that their editorial policy is symmetric across all religions.  They are tiptoeing around Islam in a way they never would with Judaism or Christianity.  If they are scared of violent reprisals, they should just say so. 

English as an Open Source Language

One of the great things about modern English is that it is bottom-up and open-source.  Years ago, the Oxford English Dictionary took the approach of documenting what English is, rather than the French approach of dictating what the language should be.  As a result, the language evolves based on how ordinary people are using it.  Which is perhaps why the word in many languages for new trends and technologies is often the English word (much to the consternation of the French). 

I tend to agree with Eugene Volokh's definition of "what is a word."  Then think how different this might be in statist cultures, where a word is only a word when the government says it is.

PS-  I acknowledge that this makes English harder to learn for people whose first language is less idiomatic.

Update: Much more here

Maybe Raich Lets Congress Fix Kelo

I wrote before that I thought the definition of interstate commerce in Raich was crazy, but maybe there is an upside.  Under this ridiculously broad definition of interstate commerce (where growing marijuana in your backyard for persona consumption was called interstate commerce), couldn't a real estate development with tenants who are multi-state corporations also qualify?

To this end, Eugene Volokh writes that Congress is already considering legislation to control eminent domain for private development in the aftermath of Kelo:

Sen. Cornyn (R-TX) Proposes Limits on Eminent Domain:

Sen. Cornyn is introducing a federal bill (S. 1313, "The Protection of Homes, Small Businesses, and Private Property Act of 2005") that would bar "economic development" takings:

(a) . . .  The power of eminent domain shall be available only for public use.

(b) . . .  In this Act, the term "public use" shall not be construed to include economic development.

(c) . . . This act shall apply to (1) all exercises of eminent
domain power by the Federal Government; and (2) all exercises of
eminent domain power by State and local government through the use of
Federal funds.

Part C is in there to help it pass constitutional muster, but maybe Raich makes this unnecessary.

PS- I am mostly kidding here - I in no way want to condone Raich.

The Sanctity of Grand Jury Testimony

I know this will come as a shock to many people, but grand jury testimony is supposed to be secret and stay that way.  I mention this, because lately, "sealed" and secret court records seem to inevitably end up in the media.  The most prominent example is yesterday's leak of Balco grand jury testimony, though the Clinton-related grand juries seemed to be sieves as well.

There are real reasons for secrecy in grand jury proceedings.  The most obvious is that grand juries have often been used to build cases against organized crime figures, and those testifying may be risking their life to do so.  More recently, with the enormous power of the press to convict people even before they go to trial, sealed testimony can help protect reputations as well as the presumption of innocence.

Now, I am not a lawyer, and I would love to hear what Volokh has to say.  I suspect there are those who would argue, as they did in the (admittedly different) case of the release of Jack Ryan's divorce records, that transparency in the legal system is more important than individual privacy.  This may or may not be true legally, but I think it would hurt the grand jury process, and anyway, I don't think this is what happened here - the Balco testimony looks to have been leaked illegally.  By the way, I am tired of the notion that journalistic privilege stemming from the first amendment trumps legal compliance with any other laws.  I know the press loves having this, sortof like the double-O license to kill, but I don't buy it.

UPDATE#1

Hey, maybe I can be a lawyer.  Here is Eugene Volokh talking about journalistic privilege today!

UPDATE#2

I forgot to mention that there is an exception to secrecy - the witness may publicly discuss their own testimony.  Again, however, I do not think this is the case here.  I don't think Giambi released these details about his own testimony, and the format of the article - with both sides of the Q&A, is pretty clearly from the transcript of the hearings.  Besides, if Giambi were going to voluntarily go public with this admission, he is much more likely to get paid $10 million to tell it to Barbara Walters than he is to anonymously leak it to the SF Chronicle.

Hey, Another Arizona-based Blog

Hello to Arizona Watch, which seems to focus on politics and news here in AZ.  Anyone with links all over their site to Cato, Eugene Volokh, Virginia Postrel, and Assymetrical Information can't be all bad!

Arizonaflag