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Tuesday, December 8, 2020

CLOSE CALL

We are now watching a full-scale fascist coup attempt in slow motion with assorted comic interludes. The attempt will almost certainly fail, thank God, but we are coming a great deal closer than most people, myself included, would have thought possible.

 

In order to seize control of the United States, Trump needs some or all of six elements of the American power structure: the Army, the Republican Party, the corporate elite, the judiciary, the senior administrative hierarchy of the federal government, and at least a good deal of the state and local administrative hierarchy. He has complete control of two of these six – the Republican Party and the senior administrative hierarchy of the federal government. But he has failed to take control of any element of the judiciary, he has little or no support of the state and local administrative hierarchy, the corporate elite has clearly decided to sit this one out, and far and away most important of all he has no control of the Army.

 

Trump is a buffoon and many of his closest aides – most notably Rudy Giuliani – are buffoons as well, but it would be a very bad mistake to suppose that because of his personal inadequacies, which are legion, he is not really a threat. Sophisticated, accomplished, well-educated elites perpetually underestimate fascist wannabes whom they would shrink from inviting to a dinner party.

 

I must say that as a veteran – however long ago my service and however insignificant its nature – I take a certain satisfaction in the fact that the uniformed services have completely resisted Trump’s efforts to use them as instruments of his dictatorial desires. I may not like what the US military has been used for by the presidents of the last 70 years but I have always admired their self-discipline, their efficiency, and their steadfast support of the Constitution (I say that as an unrepentant anarchist, by the way).

 

Would the Democratic Party have so completely subordinated itself to the fascist and authoritarian desires of a president of their party? I honestly do not know, although I suspect you would see more openly courageous resistance than has been manifest in the Republican Party.

 

As I have remarked on this blog before, one of the few benefits of this fascist coup attempt is that it will weaken and perhaps even put to rest the collective American fantasy that the United States is “exceptional,” that it is not subject to the forces of fascism and authoritarianism that have darkened the history of the rest of the world for centuries.

 

As I sit in comfortable isolation and watch this coup attempt unfold, I find myself wondering what the future of American politics will be and most particularly what the future will be for the Republican Party. At the moment, only 10% of those elected on the Republican ticket to the Senate or House of Representatives have publicly acknowledged that Joe Biden won the election. I think it is extremely likely that a sizable proportion of the remaining 90% will never acknowledge that Biden won honestly. Completely lacking anything remotely resembling character and desperate to hold on to their jobs, the men and women of The Grand Old Party will continue, with winks, nods, dog whistles, and bullhorns to tell their voters that Trump wuz robbed. In the short run, this may actually help us in the Georgia runoffs but in the longer run it threatens serious social and political disorder and dysfunction.

 

Now you might imagine that as a professed anarchist I would welcome the evaporation of the belief in the myth of the legitimacy of the state but you would be wrong. Ever since I wrote my little defense of anarchism, I have been quite well aware that it might be necessary to foster rather than to undermine that myth in order to accomplish all the concrete changes that I desire in the society in which I have spent my entire long life. The civil rights movement, the women’s liberation movement, the gay liberation movement, the union movement, the struggle for a livable wage, the campaign for universal healthcare, and, perhaps most important of all, the effort to address climate change – all of these can be accomplished in a modern world only with organized effective political action, and that action can succeed only if those who commit their energies and lives to it are sustained by a belief in the legitimacy of popular democracy.

 

I am desperately grateful that Trump managed to bring out enough Biden voters to defeat himself and perhaps that should be sufficient. But I fear for the future.

58 comments:

MS said...

At the risk of being accused of abject pandering, I say well said. Regarding climate change, I hope that it is not already too late to reverse the worst consequences of global warming. The depressing book that I am reading, “The Uninhabitable Earth,” indicates that things do not look promising.

Howie said...

Trump is a buffoon and a coward to boot- he is too cowardly to try a coup plus how and and by what means and when will he actually try pulling this dastardly deed off?

s. wallerstein said...

I wonder if the U.S. military would be so steadfast in their support for the Constitution if Sanders had been elected and Trump had tried the same stunts as he is now trying. The fact that Biden assures "business as usual" for the corporate elite and that "America is back at the head of the table" for the Pentagon means that a coup at this point would be only a personal power grab by Trump, instead of an attempt by the powers-that-be to prevent social change as a coup against Sanders would have been.

MS said...

s. wallerstein,

I don’t know how closely you have been following Biden’s proposed Cabinet appointments, but they are more progressive than you give him credit for, particularly regarding his choice for Secretary of Labor and Secretary of the Treasury. I believe you are selling him short.

On another note, in a number of comments submitted on past posts by Prof. Wolff prior to the election, I compared Trump to Hitler and dubbed him Il Duce, in honor of Mussolini. It, fortunately, looks like he has failed to turn this country into a fascist state, but not for lack of trying. And, as Prof. Wolff cautions, we are not yet entirely in the clear. Anything unpredictable could happen – a retributive strike by Iran to avenge the assassination of Mohsen Fakhrizadeh giving Trump a reason to declare martial law, for example. In addition, if Trump survives prosecution and is not jailed, he is talking of running for President again in 2024. If the Democrats don’t win the Senate and Biden’s legislative agenda is obstructed, disgruntled voters may not turn out in 2024 the way they did in 2020. And who knows how many more, or less, Trump supporters there will be in 2024 if Biden falters.

So, has Trump failed because (1) he was just not as smart or cunning as Hitler; (2) the American people as a whole are just more fair-minded, intelligent, humane, and/or less gullible than were the Germans in 1933; (3) the economic conditions in Germany in 1933, following its defeat in 1917, the draconian sanctions placed on Germany by the victorious WWI allies and the world-wide depression. Prior to Trump’s election, I would have maintained that a fascist oriented politician could never get elected in the U.S.A. due to factor (2). His election has disabused me of this belief. I actually think the main factor for Trump’s failure to date was factor (3). I predicted in a prior post before the election that Biden was going to win because of Trump’s mishandling of the pandemic - that it took a scourge to get rid of a scourge. A commenter disagreed with me, predicting that Biden was going to win, and would have won even if there had been no pandemic. He cited the 2018 Democratic voter turn-out to support this assertion. I believe the actual vote in he election, in which Trump garnered some 74,000,000 votes, far more than he received in 2016, proves that I was correct – but for the pandemic, Trump would have won the election, which is a pretty scary conclusion. The conditions in Germany in 1933 were far more dire than what we have experienced here, the pandemic regardless. My mother-in-law, who lived through WWII as teen-ager in Germany occupied Poland, has remarked to me that the pandemic is a mere inconvenience, nothing compared to what she lived through during the war.

PBS recently had a superb documentary series about how Hitler rose to power. And the main factor was that the industrial elites and politicians, President Hindenburg among them, underestimated Hitler’s aptitudes and his potential appeal to the disgruntled German populace. As Prof. Woolf has noted, they thought they could control him, the was Sen. McConnell probably feels he could control Trump. Things did not quite turn out that way in Germany. So, as annoying and frustrating the pandemic has been, I believe we owe Trump’s defeat to it, and to his incompetent handling of it. Query: Would Hitler have done a better job? Obviously no way of knowing, but an interesting point to ponder.

s. wallerstein said...

Here's Glenn Greenwald on Biden's probable pick for Defense.

https://greenwald.substack.com/p/bidens-choice-for-pentagon-chief?token=eyJ1c2VyX2lkIjoxODgzNjA1NCwicG9zdF9pZCI6MjM0NDE3MDYsIl8iOiJiT0ZaNiIsImlhdCI6MTYwNzQ1NDkxOCwiZXhwIjoxNjA3NDU4NTE4LCJpc3MiOiJwdWItMTI4NjYyIiwic3ViIjoicG9zdC1yZWFjdGlvbiJ9.1Hd1AKar-7EgA8i_de8rNh1DGPfDgrGI4UQFtcfYV7c

Michael Llenos said...

"Trump needs some or all of six elements of the American power structure: the Army..." (RPW)

"If Moses, Cyrus, Theseus, and Romulus had been unarmed they could not have enforced their constitutions for long--as happened in our time to Fra Girolamo Savonarola, who was ruined with his new order of things immediately the multitude believed in him no longer, and he had no means of keeping steadfast those who believed or of making the unbelievers to believe."--The Prince Chapter 6 (Public Domain)

MS said...

Wonderful news! Chris Krebs is suing the Trump campaign and Joseph DiGenova for defamation. https://www.washingtonpost.com/local/legal-issues/chris-krebs-sues-trump-campaign-digenova/2020/12/08/61a68a30-389a-11eb-bc68-96af0daae728_story.html

Go get em’ Chris!

aaall said...

1. We already had a coup in 2000.

2. The army is irrelevant. I really can't see the JCS ordering out the tanks.

3. What was dispositive is too many moving parts and a national vote majority that didn't depend on one state. Three states, six legislatures, numerous state and local officials as well as state and federal judges/justices. Five SC Justices meeting in camera over an election in one state that was way close can do wink, wink, nod, nod. Had this been close in only one state (the right state) the result would most likely have been different.

You know, if enough folks start pointing out that Constitution is failing and needs re-writing and do we really need a presidential system anyway, maybe the window can be moved.

MS said...

aaall,

“You know, if enough folks start pointing out that Constitution is failing and needs re-writing and do we really need a presidential system anyway, maybe the window can be moved.”

You must be kidding. Seriously?? In a prior response to one of my comments, you indicated that you are older than I. So you should be old enough to know better. In a country in which some 74,000,000 people voted for Il Duce, there is not a snowball’s chance in hell that they would support revising the Constitution, except in ways that I do not believe you would find palatable. Moreover, among the 81,000,000 people who voted for Biden, I doubt that you could find .001% (.0001) people – 8100 people - who would support the total revamping of the Constitution which you propose. Since there are not nearly enough people to do what you propose by implementing the amendment mechanism in Article V, you would have to persuade enough people to call for a constitutional convention to draft a new Constitution. Never going to happen. So what do you propose, an armed revolution? When was the last time you fired a weapon? And you’re going to need a lot more than a shotgun, assuming you own one. Why do you waste your time offering solutions that have absolutely no chance of being realized? Just to irritate me? Well, you are succeeding.

Anonymous said...

https://www.texasattorneygeneral.gov/sites/default/files/images/admin/2020/Press/SCOTUSFiling.pdf

LFC said...

While agreeing that Trump posed (and perhaps continues to pose) a threat to the U.S. constitutional order, I have never been taken with the Trump-Hitler comparison (or for that matter the Trump-Mussolini comparison). The 1930s, as has already been noted, were fertile ground for fascist movements, and while there are contemporary variants (mixed with a certain variety of populism) they have their own distinct dynamics and operate in a distinct and different context. All of which is to say that historical analogies should be used with caution, IMO.

Two books that I've read in fairly recent years that I'd recommend on the original varieties: R. Paxton, The Anatomy of Fascism and R.J. Evans, The Third Reich at War, the third volume of his trilogy on the Third Reich. The Evans is long and I didn't quite plow through to the end, but did read substantial parts. He mixes narrative with analysis and occasionally argues with other historians, for example he maintains that the Nazi invasion and occupation of Poland, in its brutality and cruelty and population displacement, presaged and was in some ways a trial run for what the Nazis did during the invasion of the USSR, before the tide turned against them. What comes through clearly is how focused Hitler and some of his key lieutenants were on the vision of Lebensraum in the East.

Another accomplished, prolific, and well-known contemp. historian of this period, somewhat controversial in some respects, is Timothy Snyder, whose specialty is Eastern Europe. I heard him give a talk once but have not really read his work. Gotz Aly wd be another. The historiography is enormous, needless to say, and I'm mentioning only a few things that have crossed my attention as a non-historian w some interest in the period.

The political scientists and IR scholars have also had their say, in a somewhat different way, on the '30s and '40s, but I think I'll put them to one side for now.

LFC said...

P.s. Much older, but still good for an overview, is Gordon Wright, The Ordeal of Total War, in The Rise of Modern Europe series (ed. W.L. Langer).

Anonymous said...

I do hope you will address the Business Plot (see Wikipedia article, here: https://en.wikipedia.org/wiki/Business_Plot). As someone who has only been alive since the 1990s, I am trying to understand how old or new the constant threat of a fascist coup really is. God knows Rachel Maddow won't.

Anonymous said...

I'm curious about the idea that only 10% of the republican congresspeople acknowledge Biden's win and 90% will never publicly acknowledge it.

Did we not see the same thing on the other side only 4 years ago? I'm just afraid that the party I consider myself closest to is losing all principle and integrity, just as the republicans lost it long ago. Like was there ever an honest reckoning about the democrats losing the white house in 2016, with 90% of democrats in congress acknowledging the Trump win as fair and legitimate? I think with that kind of behavior the democrats are just sowing the seeds for themselves to lose all credibility with the public.

Along the same lines, I disagree with another statement in the post that the democratic party would resist a coup perpetrated from their own side. My gut feeling is that the leadership will happily welcome whatever shady or coup-like behavior occurs if it will keep Trump (or whoever's next) from taking office 4 years from now. Does anyone have a different instinct about that? It leaves me very depressed...

Jerry Brown said...

Anonymous @9:07, Clinton did concede the election within 24 hours. That is a big difference.

MS said...

Anonymous at 7:20,

Thank you for your reference to the Busines Plot. I had never heard of it and found the article informative and interesting. At the end of the article, it refers to Prescott Bush, George Walker Bush’s father and G.W. Bush’s grandfather, as being suspected as being involved in the Business Plot. A lot of people today do not know about Prescott Bush, who was Senator from Connecticut and was involved in a lot of shady deals, including connections with Nazi Germany. You can read about it here:

https://www.mondialisation.ca/the-bush-family-saga-airbrushed-out-of-history/5512738

A cinematic reference apropos of the above. One of my favorite movies about the battle between good and evil is China Town, in which the villain is an unscrupulous businessman, Noah Cross, superbly acted by the late John Huston (whose first directorial effort was the Maltese Falcon). At one point, Jake Giddes, played by Jack Nicholson, confronts Noah Cross, and asks him why he continually needs to have more wealth – what is it that he needs to buy that he cannot already afford. Cross looks Giddes in the eye and says, “You see, Mr. Giddes, most people do not have to face the fact that at the right time and the right place they are capable of anything.” You can see the clip here:

https://www.youtube.com/watch?v=ppGd-2nEOVQ

MS said...

Errata:

I got the Bush names confused. G.W.’s father was George Herbert Walker Bush.

MS said...

I agree with Jerry Brown, and would point out, in addition, that unlike Trump’s victory in 2016 in which there was confirmed evidence that his supporters were influenced by Russian hackers planting false, inflammatory news in the social media, there is no evidence that Biden’s popularity has been fortified by Russian, or any other country’s, meddling in his favor.

Regarding whether the Democratic party would be willing to engage in shady deals to prevent Trump from becoming President again, I am not naïve, and I have seen my share of shady stuff in my life, but there are deals with the devil, and deals with the devil. I just believe that the Republicans would be inclined to make dirtier deals with the devil to secure power than would the Democrats. The deal the Democrats would make would to have at least a veneer of decency in order for them to buy into it. The Democratic party has never fallen to the depths of sycophancy and idol worship that characterizes the present Republican party.

MS said...

The astute among you may point out that my reference to Prescott Bush and the article about him and his elitist colleagues contradicts the position I took in prior comments regarding the meaning of “earned” and its relationship to wealth. But I never said that all wealth is earned.

C said...

MS:

“Query: Would Hitler have done a better job? Obviously no way of knowing, but an interesting point to ponder.”

Yes, I think Hitler and his regime would have done a much better job than the Trump administration handling the coronavirus pandemic (at least for the non-Jewish, non-minority, German people).

Overall, the Nazis were highly organized, efficient, and thorough. Obviously, they used these traits for many horrendous, evil, psychopathic purposes: the Holocaust, the Final Solution, their eugenics program, their concentration camp program, their slave labor program, their death squads, and WW2 in general. But they also used these traits for some good purposes: national health insurance, a massive infrastructure program (e.g. the Autobahn), public hygiene and sanitation programs, collective meal programs, collective holiday vacation programs, etc. Yes, unlike the contemporary USA, the Third Reich had national health insurance and a massive infrastructure program.

Thus if Hitler and his regime existed today, I think they would use their skills in organization, efficiency, and thoroughness for protecting the (non-minority) German people from the coronavirus. (But they might deliberately infect the Jews and other minorities.)

Overall, Germans today are still quite organized, efficient, and thorough. So it’s no surprise that Germany has far fewer confirmed coronavirus cases and deaths than the USA. In fact, according to one study, if the US had implemented the same coronavirus measures as Germany has done since the start of the pandemic, the US would have 75% fewer deaths. Let that sink in for a moment.

Some of you may take offense at my assessment (namely, saying certain positive things about Hitler and the Nazis while acknowledging that overall they were deranged, evil psychopaths). But I am being intellectually honest and I think at least some historians would agree that Hitler would have handled the coronavirus pandemic better than Trump.

aaall said...

"Well, you are succeeding."

Golly!

1. I could easily find a mere 8,100 people who recognize that our current constitution is a flawed and failing document including a number of prominent legal scholars. I could point out that several states have already called for a CC (a majority depending on how one counts) and its unlikely that a convention once called could be limited in what it proposed.

2. Fifteen states representing 73% of the votes needed to hit 270 have already signed on the the National Popular Vote Compact which would do an end run around the Electoral College.

3. The reason we need to broaden the discussion is that even somewhat educated folks are still stuck in School House Rock civics. Our system could muddle along as long as the parties were regional actors. It can't function with one of the parties a captive of an ideological/theological movement.

Reagan's election in 1980 ended the possibility of a conservative third party which was still a thing in the 1970s (Bill Rusher wrote a book in the mid 70s). The Republicans went full Leninist with Gingrich in the '90s. McConnell will sabotage the nation again if he is ML.

The present trajectory is terminal so what's to lose with trying to move the discussion to the only way we survive? Who knows - California enforced racial covenants and prohibitions on inter-racial marriage when I was born - things can change.

Are you from Michigan? We don't walk around with firearms out here unless we are hunting. Michigan mileage seems to vary. Since it seems important to you I have the assortment of firearms - .22s to .44 mag to shotguns, .30-'06, hobby cannons, etc, that one has in rural areas. My neighbor has a big-bore range.

Achim Kriechel (A.K.) said...

Dear Prof. Wolff,
(only as a supplement and very briefly)
you have forgotten an element of the American power structure that needs to be controlled in order to complete a coup d'état. The media.

How important control over the media is is so historically evident that there is no need to explain it here.

But how the media have changed and what effects this has on the implementation of totalitarian structures must first be properly understood. The structural change in the media itself changes the relationship between mass and power quite decisively.

MS said...

C,

Thank you for your response. No, I am not offended by what you wrote, and I’m Jewish. I have been comparing Trump to Hitler and nicknamed him Il Duce to compare him to Mussolini, but I recognize that it is not a perfect comparison, anymore than saying that Napoleon was like Julius Caesar would be a perfect comparison. I meant that Trump is a would-be Hitler in his authoritarian aspirations, but fortunately did not succeed, for a number of reasons. And when he stands before his adoring followers with his chin thrust forward, his arms across his chest, and nodding his head up and down, he sure does remind me of Mussolini.

Actually, there is a Hitler whom Trump more accurately resembles, and that is the Hitler Mel Brooks caricatured in “The Producers.”

MS said...

aalll,

Well, now you have moved the goal posts. I encounter that a lot as a lawyer, when my opposing counsel contends s/he has proved x when s/e proved something far less impressive than x.

You called for a mass movement to “rewrite the Constitution,” which is what I was mocking as infeasible. You indicate you would settle for expunging the electoral college from the Constitution, which is small bore compared to rewriting the entire Constitution, including getting rid of Article II to eliminate the Executive.

And by the way, even that arsenal of weapons which you attest to owning, and the arsenals of all your fellow Michiganders, would not stand a chance against the personnel carriers, howitzers, sting missiles, etc. of the U.S. Army. (All I have to defend myself and my wife is a baseball bat I keep hidden under our bed. Please don’t come looking for me.)

Enam el Brux said...

"...the corporate elite has clearly decided to sit this one out... because it is impressed with the authoritarian capitalism of China* and hasn't decided whether authoritarian capitalism is more profitable for them than the current system. My guess in the long term is that they would prefer (read: they have no choice) to cooperate with China. So much for Fukuyama's end of history.

*Investment analysts have the impression most corporations in China maintain at least two sets of books. However, this isn't necessarily endemic to authoritarian capitalism.

s. wallerstein said...

lengthy interview with Brian Leiter about the U.S. Supreme Court

https://www.youtube.com/watch?v=GBPWo1TvYg0

MS said...

“The application for injunctive relief presented to Justice Alito and by him referred to the Court is denied.” December 8, 2020

Hallelujah! That single sentence, with not a single dissent by any of Trump’s Supreme Court appointees, has put the nail into the coffin of Trump’s unprecedented efforts to overturn the legitimate results of a Presidential election.

aaall said...

Sigh, MS I didn't call for a mass movement (although that would be great!), merely that it might be useful to advance from time to time the notion that our Constitution is failing and we are running out of time.

Likewise considering what modest improvements we might be able to actually achieve as "moving the goalposts" is strange. While we would be infinitely better off if we ended our presidential system and the possibility of divided government, taking what we can get is sort of how life works. Anyway, ending the tyranny of the Electoral College is likely prior to any possibility of other improvements.

I may not have been clear as your resort to firearms and revolution in the prior post seemed quite Michiganish. I have never lived more then a few miles east of the Pacific shoreline..

MS said...

s. wallerstein,

I want to thank you for providing the link to Prof. Leitner’s discussion of the nature of the law in general, and of the American Supreme Court in particular, with the two South African moderators. Although I could quibble with some of the remarks he offered (e.g., one cannot always predict based on a justice’s political or moral philosophy how they will rule – Justices Black and Douglas, both liberals and strong defenders of the 1st Amendment, on occasion would dissent from the other’s decision, even on issues involving the 1st Amendment), all in all, I thought it was an excellent discussion, that the moderators asked interesting questions, and that Prof. Leitner gave valid responses. I would recommend that the readers of this blog who have questions about how law operates to listen to the interview. (It was also a pleasure to listen to the moderators’ South African accents.)

Among Prof. Leitner’s answers, I thought he handled the suggestion that, if judges or justices have to choose between two equally defensible resolutions of a legal question where there are legitimately valid arguments on both sides, isn’t the outcome rather arbitrary, and therefore how can the outcome be considered legitimate? His response that sociological reasons these disputes have to be resolved in one way or the other, that they just can’t be referred back to the legislature, and in order to avoid violence and the use of self help by the antagonists, the courts must provide an answer, even if it is somewhat arbitrary.

His discussion of the sometimes unavoidable ambiguity in laws, for example, where a law prohibits the use of a vehicle in a park, does a new invention like a Segway constitute a vehicle, reminded me of Wittgenstein’s point that no definition of the word “game” can account for the wide variety of diversions which we all games, that, rather they are linked by a daisy-chain of shared characteristics.

His discussion of legal realism, in which economic considerations sometimes determine the outcome of a decision also hit home for me. I had a case in 1994 involving a pipe-fitter who was walking across the roof of a building owned by major supplier of automobile parts. Because he was carrying pipes, he could not see in front of him, but he had walked across that roof hundreds of times and knew where every obstacle was. Unfortunately, someone had left the lid off one of the hatches on the roof, he walked into it and fell to his death. Under Michigan law, and under the law of most states covered by worker’s compensation, an injured party, or a decedent’s estate, is barred from suing the employer in court, but is limited to the remedies available under worker’s compensation, unless the plaintiff can prove that their injury/death was caused by an intentional act of the employer. Well, I could not prove that. However, in the course of my legal research I came across a Michigan Supreme Court decision written by one of the more highly esteemed Michigan judges, Justice Thomas Cooley (who has a Michigan law school named after him), who held in a 19th century case that an employee has the right to sue his/her employer if the employee is injured due to the presence of an ultra-hazardous condition on the employer’s property, subject to certain factors. Justice Cooley ultimately held that the employee in question could not sue his employer because the principle he was espousing required the presence of factors x and y to be present, and only x was present. The case had never been overturned by any Michigan Supreme Court decision. Nor was there another decision applying the legal principle to a different fact situation. The decision was one of a kind.

(Continued)

MS said...

In my case, however, x and y were both present, so I filed suit in federal court arguing that the hatch without its lid constituted an ultra-hazardous condition and the employer could be held liable. In federal court, the judge was required to follow whatever legal precedent had been set by the highest court of the state which had addressed the issue. So, when the owner of the building, which was incorporated in New York, moved do dismiss the lawsuit, arguing that it was covered by worker’s compensation, the federal judge denied the motion, stating that he was bound by Justice Cooley’s decision some 100 years earlier. We continued with the case for another two years, taking depositions, retaining experts on hazardous conditions, etc., and spending a lot of money. Two years later, the week before trial, the same judge called my law firm and said he had been thinking about Justice Cooley’s decision and concluded that the principle of law I was relying on was what is called dicta, i.e., a statement in a decision that is sort of an aside that has no direct bearing on the decision’s outcome. He wanted us to re-brief the issue, which I did, arguing that the principle was not dicta, because it set forth a principle of law that was directly relevant to the case but which the Court had declined to follow because no all of the factors were present. But if a principle states that z follows if x and y are present, the principle is not dicta just because under the facts of the case x was not present. The principle is still a valid statement of the law. Well, the judge issued a decision reversing his prior ruling and dismissed the case, holding that the principle constituted dicta. I was both irate and flummoxed, and I surmised that the judge had reversed himself because he concluded that if my client won (the pipefitter’s widow), the same principle could be applied to similar occurrences at a lot of businesses in Michigan, which would have an adverse effect on the Michigan economy. I appealed the decision to the 6th Circuit Court of Appeals, which affirmed, ruling that the principle was dicta. The Supreme Court denied certiorari, and that was the end of the lawsuit. Fair, no; just, no. So Prof. Leitner is correct, sometimes decisions are made not based on justice, but based on economics.

Anonymous said...

What if a Biden presidency empowers the bad people who are creating autonomous zones such as in Portland? Its not good for the country.

aaall said...

The "autonomous zone" was in Seattle, which, I realize, looks close to Portland if one is in Russia but is a state away. It's long gone anyway and the president can't do that because federalism.

Anonymous said...

aaal,

You are correct in that there was an 'autonomous zone" in Seattle, but in light of current events there is now one in Portland. That makes two. The one in Seattle is long gone but presently there is friction to use the word loosely between the police in Portland and disgruntled residents who are basically destroying the city. And I am not from Russia as you have alluded but I am actually a concerned American who is seeing with my own American eyes the destruction of the country. Its going to hell, but you may not see that in your comfortable suburbia or college. Lets not blame the civil unrest on the Russians, we don't need their help.

Anonymous said...

I need assistance in how to go about being a "neutral" party in the upcoming civil war. Kind of like Switzerland. I do not like Trump at all and am not a "gung ho" redneck guy, but I am also not a mentally ill "antifa" that doesn't know which way is up. How do I stay out of it when the bullets start flying? Stay inside? I just don't know.

jeffrey g kessen said...

Dude, M.S., if you want a little respect than show a little restraint. It's not as if we need to hear your opinion about everything under the sun. A judicious brevity is the proper brief of a lawyer.

MS said...

Jeffrey,

And here I thought we were becoming such good friends.

In any case, how many briefs have you seen, let alone read?

Jerry Brown said...

Come on guys- why talk about lawyer's underwear? If we cannot have judicious brevity can there be some injudicious levity?

MS said...

Jerry,

Very funny. You know the old joke, about lawyers do it in their briefs.

Enam el Brux said...

A friendly siggestion: start demonstrating some feeling for economics or I will abandon this joint for Interfluidity.

Enam el Brux said...

Suggestion, not "siggestion" (vaguely related to indigestion.)

Jerry Brown said...

Oh Enam et Brux, yous can read both Interfluidity and this blog. I manage to.

Enam el Brux said...

Jerry Brown, at least one of us ought to inform the regulars about Interfuidity. No sense keeping it to ourselves. Here's another "secret": some of the best analysts on Wall Street are very familiar with Marx.

Ridiculousicculus said...

MS - plenty of people who read this blog earned JDs, passed a bar exam or two, and practice or practiced law. Some are even law professors at prestigious institutions, like Brian "Leitner" [sic]. But you're the only person running around citing your legal experience every single post as if it should matter to anybody. It doesn't - it just reminds people who aren't lawyers why they hate lawyers, and reminds people who are lawyers why the profession gets such a bad rap.

Anonymous said...

^^^ yep.

It's become a waste of time and energy to sort through all of the MS nonsense and diatribes at this point in the comments section here. Not that I am a regular poster, but, as others have done, I will just be skipping this part of the blog from now on.

FYI - there is a reason for the saying "don't feed the troll". Most here don't seem to get it.

MS said...

“I learned long ago, never to wrestle with a pig. You get dirty, and besides, the pig likes it.” George Bernard Shaw

Anonymous said...

Bob, will you block this self-important jackass MS from posting comments?

MS said...

In a year of bizarre legal maneuvering by the Trump team to overturn the results of the election, the Attorney General of Texas has filed one of the most bizarre lawsuits in American history. He has filed a lawsuit directly in the Supreme Court, requesting that the Court overturn the election results in Wisconsin, Michigan, Pennsylvania and Georgia. Texas does not have “standing” to file this lawsuit anywhere, let alone directly in the Supreme Court. It is not as if Texas is suing a bordering state, for example, challenging the border state’s use of water rights that affects both states. Texas would have standing to do this. But it does not have standing to challenge the way the election laws of another state operate. Even Trump’s three Supreme Court appointees won’t help him here. Expect a summary rejection of the lawsuit as soon as the other states file their responses. (My sincere apologies to Rediculousicculous and Anonymous for this “diatribe,” and any other lawyers (or nonlawyers for that matter) reading this comment, feel free to express your own opinions.)

s. wallerstein said...

How about this?

Why don't we all agree not to comment more than three times a day? A comment would be any text that fills the box and thus, any text that fills two boxes would be counted as two comments.

With three daily comments one can present a thesis and defend it twice. I'm going to follow my own advice and thus, this is my first comment of the day.

Those who comment anonymously will have to place some kind of identifying number or code at the end of their comment.

MS said...

Norman Mailer and Gore Vidal were once friends, and then they became vicious enemies. They were once both at a cocktail party and words were exchanged. Mailer, who loved the sport of boxing and was reported to be a pretty good boxer himself, slugged Vidal and knocked him to the floor. Vidal, lying prone on the floor, looked up at the guests staring down at him in surprise, and stated: “Once more, words fail the great Norman Mailer.”

I have the sense that a lot of the commenters on this blog who insult me for the abundance of my comments, many of which challenge their most dearly held convictions (and many of which do not), suffer from the same deficiency of cogent words, so they resort to insults.

LFC said...

I like s. wallerstein's proposal.

(This is the first of my allotted three comments of the day, and very possibly the last.)

MS said...

This entire discussion regarding limiting the number of comments which an individual may submit on Prof. Wolff’s blog has been provoked by what some regard as my inappropriate prolixity, as one commenter put it. Placing a limitation such as s. wallterstein proposes would, I submit, be counter-productive in a number of contexts, particularly when, for example, an issue of some intellectual moment is being discussed. I offer as an example the very lengthy discussion which occurred under Prof. Wolff’s post titled “Sic Transit Gloria Mundi,” which commenced on Nov. 30 and ran through Dec. 7, with a total of 134 comments being submitted. A good part of that debate was generated by my criticism of the proposition that the words “earned,” “merited,” “deserved,” did not properly apply to achievements which could be attributed to an individual’s genetic make-up and/or circumstances of birth. I believe that debate was important, because it had linguistic, philosophical, legal and economic theory implications. Comments in opposition to my position – in varying degrees of opposition – were offered by s. wallerstein, LFC, Enam el Brux, and GJ, all of whom, of course had a perfect right to disagree with me. I, in turn, had a right to defend my position, which, confronting four critics could not have been accomplished by my being limited to 3 comments per day, over that 8-day period (particularly because the number of comments needed to be marshalled in defense of my position on any given day would vary depending on the number of comments offered that day by my critics). Ridiculousiculus and a number of Anonymous commenters will no doubt disagree, but I thought that discussion was a debate worth having, and, contrary to what Ridiculousiculus and the legion of Anonymous critics may say, I did not engage in that debate out of a need for self-aggrandizement or chest pounding. In such a case, placing limits on the total number of daily comments would simply stifle what I regard as important dialogue on an important issue.

I will admit that not all my comments relate to advancing an important legal or philosophical perspective, e.g., my call for readers to file bar grievances against Mr. DiGenova, or my remonstration about how the Florida police invaded the home of a terminated employee of the Florida Health Dept. with the guns drawn, but (1) what harm was caused by my raising these issues; and (2) were they frivolous issues unrelated to issues that have routinely been discussed on this blog? So, I submit imposing a numerical limit on daily comments submitted by a single individual is unnecessary and counter-productive. But I will, of course, comply with any numerical limitation either Prof. Wolff chooses to impose, or upon which there is a consensus (how to be determined?) among the blog’s readers.

AJH said...

MS,

Hello it is me again.

Look frankly, to suggest that the reason people have a problem with your abundance of commenting is because they struggle to argue back with you could probably be described as both delusional and narcissistic behaviour.

More straightforwardly to me at least it demonstrates a severe lack of social skills. Sure, we're anonymous on here, but most people use at least initials (usually names) and the comments can be relatively personal. I just don't understand what on earth possesses such a (by several of his own accounts) busy and intelligent individual to comment with the frequency that you do on one single blog.

It must be insanely time consuming. You must check this blog, read the comments, think of what to write, and then write out often lengthy comments, several times every day.

The reason people find it irritating is because it's somewhat akin to having a second person other than the blog owner thinking he has a little fiefdom in the comments section- RPW writes the posts, MS rules the comments, and often MS's comments are not remotely to do with RPW's posts.

Some suggestions which obviously you don't have to follow but I think would improve the blog's quality of life, your quality of life, and everyone else who reads and comments quality of life:

1) You comment less freqeuntly
2) You not ALWAYS engage in comments of a combative nature
3) You simply check the blog fewer times during the day- you could read it twice a day and comment those times. This would save you time as you'd be able to read the comments you miss in one go.
4) You (if you don't already) start using another site like Reddit to make up for commenting slightly less often on RPW's blog. That way you can get your fix, and still engage with this blog. There is absolutely nothing wrong with an argument or debate. But sometimes it can be exhausting, especially when you know any comment that you make replying to a post will automatically be jumped on by the lurking MS, king of the comment section.

I counted up your November comments on a previous post, and observed:

"The most heavily commented post by MS was the November 4th election post-mortem. MS commented 26 times on that particular post."

On that same post I did my comment audit on, you ended up commenting a ludicrously high 49 times! Just think about that for a second. Since I made that audit you've already commented a total of 75 times I think, a full 35% of the comments since my last audit.

There are several frequent commentators on this blog, plus several infrequent and plenty of anons. But you ALONE make up more than 1 in 3 of the comments. That's just too much and is unhealthy for creating an interesting and enjoyable atmosphere, whatever you say.

You could reply to this message with thought out rebuttals about why I'm wrong and what fallacy I've fallen into or whatever. But what if instead you took the points on board, thought "hey, maybe they do have kind of a point" and just take a step back. No one is asking you to leave the blog (and if they were I think they'd be wrong). But try and think about how your actions impact the thousands(?) of readers and commentators on this blog and what they get out of it. Plus what Prof Wolff thinks of it.

My advice- feel free to ignore it, but don't say I didn't try.

AJH said...

MS,

Apologies, I didn't read your most recent lengthy comment before submitting my own extremely lengthy comment. You make good points (as per usual- although that is rather besides the point).

A piece of advice my dad once gave me- if one person says they have a problem with you, you can probably dismiss it outright as a personal dislike or something similar, and shouldn't let it bother you.

But if two, three, four, five people start to point out the same fault, and a pattern emerges, then perhaps you need to look for the common element. A harsh message but it has some truth to it I think.

Enjoy the rest of your morning.

MS said...

AJH,

I will seriously consider the points you make in your first comment, above, but this does not guarantee that I will be persuaded.

I am responding to your second comment not out of a compulsive need to respond to any who criticize me, but out of my need to respond to any assertion which I find not entirely logical. You state, “You make good points (as per usual- although that is rather besides the point).” Sorry, that does not make sense to me. If they are, in fact, good points, then they cannot be besides the point, and your saying this only indicates that you are giving your recognition that they are “good points” lip service.

Not to belittle your father, who in many respects may have been a very sage and wise person. but the common thread in multiple criticisms by multiple people does not necessarily have to be that their criticisms are accurate. The common thread could be that they share a certain bias, for example that they don’t like to hear criticism of a position which they all share.

Anonymous said...

Simply put, MS is a wannabe. He is the guy that will regale you with high worded stories of his exploits in law, if someone else buys, of course. We get it MS. You are intelligent, and have a lot to say...about yourself. And thank you for your great story of you in the law case you eventually lost. But most here are welcoming, you don't need to put on pretensions here, say something intelligent and be done with it.

AJH said...

I am responding to your second comment not out of a compulsive need to respond to any who criticize me, but out of my need to respond to any assertion which I find not entirely logical. You state, “You make good points (as per usual- although that is rather besides the point).” Sorry, that does not make sense to me. If they are, in fact, good points, then they cannot be besides the point, and your saying this only indicates that you are giving your recognition that they are “good points” lip service.

The reason why whether or not the points you make are good points is that the issue isn't really about how good your points are (and you not being able to see that is part of the issue as well). The issue is about the frequency and manner in which you make your points (plus your non-points e.g. your manner of telling legal stories which remind me of a braggadocios man holding court at a bar).

And with that I have reached my voluntary 3 comments for the day and will withdraw.

s. wallerstein said...

My second and last comment today.

With reference to what MS says above at 10:03 AM, how about a quota of 2 daily comments, but a right to exceed that quota with one answer per day to each criticism of one's original comments?

That is, if one faces, say, 20 critics, one has the right to answer each one of them separately, with a total of 22 comments that day, the original two and 20 answers.

That way someone who goes against the hegemonic tendency in this blog is guaranteed a right to voice their criticisms.

If that person or anyone else feels a need to comment further after having exhausted their quota, they can comment the next day. In my experience mulling over a comment for 24 hours tends to improve it and above all, to assure that the comment is less passional and more rational.

stevelaudig@gmail.com said...

This will be the third Democratic President in a row who will be treated as illegitimate by nearly Republican elected official. Bill Clinton, to DC society generally and the Republican circle specifically, in a display of cultural disdain for bumpkins, deemed illegitimate. Obama, not DC generally but Republican racial bigots [a near redundancy since if you round up a little 100% of all Republicans are bigoted against non-whites] deemed him illegitimate. So for 25 years or so other party winners are not seen as legitimate by Republicans. Judgments not unlike those made by Southron Democrats in the 1840-1860 era. But Biden is not Lincoln, even if Trump is a mix of Mussolini and Jefferson Davis leaning towards Benito.