Several people have made comments to which I should like to respond but I have felt so terrible for the past week that I have been unable to. My apologies. I hope soon to recover sufficiently to be able to get back in form. One word: the Barney Wolff who comments from time to time is indeed my cousin. His father was my father's brother, and our grandfather, after whom he is named, was Barnett Wolff, one of the leaders of the New York City socialist party and the cofounder of the Brooklyn branch of that party. I think we share a great family pride in this connection.
I've noticed that this time of the year often seems problematic for folks in our age range. Hope you're back in good form soon.
ReplyDeleteSorry about your ill health.
ReplyDeleteLooking forward to reading your responses to the comments soon.
Prof Wolff, not sure with your recent medical issues whether you had heard of John Bracey's passing.
ReplyDeletehttps://www.umass.edu/hfa/news/remembering-john-h-bracey-jr-black-studies-pioneer-and-longtime-afro-american-studies-professor
ReplyDeleteProf,
If you're feeling lousy for several days, without an obvious cause, you may be experiencing depression which frequently accompanies Parkinson's. You should check with your physician. If it is depression that has hit, there are meds that can treat it. They can make a big difference in your quality of life.
I wonder Professor if when you are in better health you could comment on the controversy of Biden’s age and it’s relevance to the prospect of him pursuing another term. It seems evident to me that Biden’s cognitive function has been diminished by his age, and I think this is clear because of his speech patterns. He often cannot finish a sentence, slurs a word, or loses his train of thought, and as a matter of historical record, he did not do this when he was a younger man. I do not think this is a cause for shame, just a consequence of human mortality. Do you see things the same way? Do think he should consider stepping down after his first term for this reason?
ReplyDeleteAnonymous
ReplyDeleteIf you go back and listen to the younger Biden, you'll find he always had some trouble uttering a coherent, grammatical sentence. He also had some difficulties w the mechanics of speech (i.e. stuttering) as a child.
I barely knew my father's parents - his mother died when I was 8 months old, and his father a week after my 5th birthday -- but one of the first things I remember learning about them was that they met over a century ago in the Socialist party and since they were both living in Brooklyn at the time, I imagine that it was in the Brooklyn branch.*
ReplyDeleteSo it seems that I have your grandfather to thank in part for my existence.
*Another thing I recall hearing is that my grandmother took her obligations very seriously. One of the responsibilities that the cop on the local beat took on was warning my great grandmother ahead of sweeps to pick up the reds to keep her teenage daughter inside; it seems my grandmother made a habit of street corner speechifying to rile up the workers.
I hope you are back to form soon professor.
ReplyDeleteHello Professor,
ReplyDeleteJust wanted to say Hello and thank you for all the lectures you've shared on Youtube. Get well soon.
interesting
ReplyDelete"A Conversation With Bing’s Chatbot Left Me Deeply Unsettled"
https://www.nytimes.com/2023/02/16/technology/bing-chatbot-microsoft-chatgpt.html
I've been seeing similar reports on the internet from other users over the past few days.
What happens when this technology is put in charge of the nuclear arsenal? (You know the sociopath halfwits are already working on this.)
"Shall we play a game?"
Eric,
ReplyDelete1) There is a post on this at the blog Daily Nous, with a few comments.
2) I'm not sure why anyone would want to put a Chatbot in charge of the nuclear arsenal, assuming such a thing were even possible.
I wish to relate a story regarding the trials and tribulations of a plaintiff’s attorney practicing law in the United States. (It may be the same in other countries, but I have never practiced law in any other countries.)
ReplyDeleteAs I related in a prior post, I was scheduled to begin a jury trial yesterday in federal court. The lawsuit was a libel claim in which I was representing the plaintiff, the party who was claiming to have been libeled. The plaintiff had been a police officer who was also a police academy instructor who taught use of force techniques which the cadets, both male and female, would need to defend themselves when they graduated and became police officers. The techniques were intended to protect the police officers from injury, and possible fatal injury, when apprehending a suspected felon. They were also intended to minimize the risk of injury to the suspected felon, and avoid the use of deadly force which could result in the death of the suspected felon, as in the case of Tyre Nichols.
In teaching these techniques, it is virtually impossible to avoid physical contact between the instructor and the cadets, to whom the instructor is demonstrating the techniques. The plaintiff had been teaching these techniques for years without any complaints from any cadets. He had also received numerous favorable reviews by the cadets whom he gave instruction. In 2019, however, a number of cadets, both male and female, complained about the degree of force he used in demonstrating the techniques, and some of the female cadets accused him of sexual harassment by virtue of his body making contact with theirs while demonstrating the techniques, which he felt was his responsibility to teach equally the male and female cadets. The cadets in question were all employees of the sheriff’s department of one of Michigan’s counties.
The complaints launched several investigations, including an investigation by a Michigan agency whose responsibility is to set standards for police officers, and to accredit police academies to teach those standards. While that investigation was in process, the Undersheriff of the county which employed the cadets in question sent an email to the agency employee who was conducting the investigation requesting that she send a copy of the final report regarding the police academy instructor who had ”victimized/mistreated the cadets.” This constituted a defamatory statement which my client maintained was false. He sent a letter to the Undersheriff, in accordance with Michigan law, demanding that she issue a retraction of her defamatory statement. She refused. We filed a lawsuit containing a libel claim against her under Michigan law. (The Complaint also included several claims under federal law asserting that his right to procedural due process was violated since, because he had tenure as a police academy instructor, he was fired based on the hearsay accusations of the cadets without him having had an evidentiary hearing.)
(Continued)
The week before the trial, the defense attorneys scheduled the de bene esse deposition of the woman who had conducted the Title IX investigation of my client for the college. She lives in Georgia. A de bene esse deposition (unlike a discovery deposition) is taken of a witness who will not be appearing at the trial, The deposition is offered in lieu of their appearance at trial. It is either read to the jury, or, in this case, in which the deposition was to be recorded by a videographer, the deposition would be shown to the jurors on a screen in the courtroom. When I received the deposition notice, I thought, what the hell are they up to? The court had ruled that the college’s investigation report was inadmissible. So, on the day for the deposition which was conducted by Zoom, as I predicted, the defense attorney asked the witness question after question regarding her investigation, what her conclusions were, and what she based her conclusions on, which were the hearsay statements of the cadets. After very question I objected as to relevance and hearsay, and when the witness answered, I moved to strike. After the deposition was over, I ordered an expedited copy of the deposition transcript and prepared an expedited motion to strike the deposition, with the deposition transcript and a copy of the transcript of the hearing in which the judge had ruled that the reports were inadmissible, attached.
ReplyDeleteOn Wednesday morning, I appeared in court with my co-counsel to begin the trial. The judge conducted a voire dire of the potential jurors and after about two hours, a jury of twelve jurors was selected. Then, in the absence of the jury, the judge called all of the attorneys to the bench to conduct a side-bar on my expedited motion to strike the de bene esse deposition. The judge directed the I and the attorney who conducted the deposition meet in a conference room to review the deposition transcript to see if any part of the transcript could be salvaged. So, we met, and it was clear from the get-go that we would not be able to agree. From my perspective, none of the deposition was admissible. From his perspective, it was all admissible. How?
We advised the judge that we were unable to reach an agreement, and he convened a conference of the attorneys. At the beginning of the conference, I reminded the judge of his ruling that none of the reports were (was?) admissible, because they contained hearsay – an out-of-court statement offered to prove the truth of the matter asserted, without the speaker present to testify. The defense attorney responded as follows: First, he Undersheriff’s statement in the email was not a statement of fact; it was a statement of her opinion, and a statement of opinion cannot be the basis of a defamation claim. Second, the cadets’ hearsay allegations contained in the Title IX investigator’s report were not being offered to prove the truth of the matter asserted. Rather, they were being offered to prove the Undersheriff’s state of mind when she wrote and sent the email as the basis justifying her conclusion in the email, and in that case the allegations were not hearsay at all, because they went to the Undersheriff’s state of mind, not the truth of the cadets’ allegations.
(Continued)
In response I stated that in Milkovich v. Lorain Journal, 497 U.S. 1 (1990), the Supreme Court had held that in a defamation lawsuit, there is no difference between a statement of fact and a statement of opinion. It makes no difference if a speaker says, “Jones is a liar,” versus, “In my opinion, Jones is a liar.” Both statements are equally able to damage the reputation of Jones. The question is whether the statement purports to be a statement of fact which is subject to being proved, or disproved. The Undersheriff’s statement was clearly a statement of fact which is subject to being proved or disproved, regardless of the Undersheriff’s opinions. Regarding the claim that the cadets’ allegations were not hearsay, but only offered to prove the Undersheriff’s state of mind and motive for emailing the statement, the claim was specious. The Undersheriff’s motive for sending the email, and her state of mind in doing so, was irrelevant. It could not be a defense to the claim that she had made a false, defamatory statement, regardless why she had done so. The defense attorney responded that Michigan case law continued to recognize a difference between statements of fact and opinions, and the latter could not sustain a defamation. I asked him for the citation of the case(s) he was referring to, and he said he did not have them with him. I stated that what he claimed was ridiculous, because it was a First Amendment issue and Michigan courts would be bound by what the Supreme Court had ruled.
ReplyDeleteAt the end of the conference, the judge stated that while he had ruled that the reports were inadmissible as containing hearsay, there might be parts of the agency report which would be admissible as non-hearsay and going to the Undersheriff’s state of mind. If necessary, he would give the jury a limiting instruction that the statements were not being admitted to prove that they were true. I questioned how part of a report could be admissible, when he had ruled that the report in its entirety was inadmissible. He then told me that he wanted me to prepare a brief by the next morning setting forth my position on the issue. (As we closed the conference, I said to the judge that I was not likely to get much sleep that night, since I now had to do legal research on the issues in question; write a brief; prepare my Opening Statement; and prepare my cross-examination of the Undersheriff, whom I was calling as an adverse witness; and the direct examination of my client. I then said that I hoped the judge would not take it personally if I nodded off during the trial. He responded that he would not take it personally if I would not take it personally if he nodded off. We both laughed.)
On the way home, I called my client from the car (my co-counsel was driving) and told him what the judge had stated, and that consequently some of the allegations of the cadets might get into the trial. He was, understandably very upset. We both had thought we had put this issue behind us, based on the judge’s prior ruling. When I got home, I started doing legal research on the issues, and found several Michigan cases which had held, like the Supreme Court, that just because a statement is claimed to be an opinion, it does not mean it cannot be the basis of a defamation lawsuit. Regarding whether out-of-court statements which went to the state of mind of the recipient were non-hearsay, and therefore admissible without the speaker/writer being present, I reviewed several cases on the issue, all of which held that the such statements were only admissible to show the recipient’s state of mind to explain the recipient’s conduct. I found no case which held that it was admissible to prove a speaker’s state of mind as a motive for making a statement.
(Continued)
While I was doing this research, my client called me and told me that he wanted to dismiss the lawsuit. He had discussed it with his wife, and given the judge’s ruling he did not want through the stress any further. I argued with him and urged him to reconsider. He told me he would talk to his wife again, and call me back. When I hadn’t heard from him, I called him back and asked if had made a decision. He said he and his wife were in agreement that the lawsuit should be dismissed, and he directed me to do so. (This is not protected by the attorney client privilege, because his wife was not my client, as well as for reasons explained below.) So, after having litigated this lawsuit for three years; having expended well over 1,000 hours conducting legal research; writing motions and briefs, and responding to motions and briefs; having met with witnesses to prepare for trial, without charging my client a cent, I had nothing to show for it.
ReplyDeleteThursday morning I arrived in court with my co-counsel. I advised the court clerk that we had to have a conference with the judge. The judge came out, and I informed him that I had been directed by my client to dismiss the lawsuit, and explained why he had made this decision. The judge asked the opposing counsel if they were going to demand that they be reimbursed their costs, and they declined. He then said that he would take a recess and he would come back and put the dismissal on the record. I then said that, with his permission, I wanted to address the court after the lawsuit had been dismissed. He asked if I intended to make a motion of some sort, and I said No. He asked me how long it would take, and I said 10-15 minutes.
The judge shortly thereafter came back to court and took the bench. After he had entered the dismissal, he looked at me and said, “Mr. Susselman, I understand there is something you want to say to the court.” I responded Yes, and approached the podium, with some papers and large book in hand. I began by reading from the judge’s ruling at the hearing in which had had ruled that none of the investigative reports would be admitted at trial. I then segued into the discussion regarding the admissibility of the de bene esse deposition. I referred to the conference the previous day in which defense counsel had stated that Michigan continued to maintain the distinction between statements of fact, and opinion. I stated that he was wrong, and proceeded to quote the language from three Michigan decision which held that there was no distinction and adopted the ruling of the Supreme Court. I then stated that the claim that the cadets’ out-of-court statements were non-hearsay to prove the Undersheriff’s state of mind was specious. I held up the treatise on Federal evidence law authored by Prof. Kent Sinclair, Professor of Law at the University of Virginia Law School, and opened the book, turned it so the text faced the judge, and I stated that the treatise contained four pages of case citations in which courts had ruled that an out-of-court statement was admissible to prove the recipient’s state of mind, and therefore was not hearsay, when it explained the recipient’s conduct, but not a single case held that this rule applied in a defamation case. I stated, “Your Honor, the rule does not apply in a defamation case because the state of mind of the individual making the defamatory statement, and the motive for making the statement, are irrelevant. What matters is whether the statement is true or false, regardless what motivated the statement’s being made.” I then said that all of this discussion was generated by the defense attorney’s negligence in failing to list the cadets as witnesses. And they have been trying to use every trick in the book to get those statements in before the jury through a back door, because they cannot get them in through the front door. If these attorneys had done this in private practice, they could be sued for legal malpractice. I then said, “Your Honor, after I told my client your recent qualification of your prior ruling, he concluded that he could not get a fair trial in this court. And, your Honor, I agree with him. With all due respect, your Honor, you have placed your thumb on the scales of justice in order to accommodate the negligence of the defense attorneys for having failed to list the cadets as witnesses.” And I went back to my seat and sat down.
ReplyDeleteThroughout my statement, the judge looked at me stoically. He then turned to the defense counsel and asked them if they had any response. Their only response was that what I had said was inappropriate. The judge then said that a ruling on a motion in limine (a motion to exclude evidence) is always subject to change depending on what happens at trial. I did not respond, but this explanation, under these circumstances, was erroneous, because, as I had argued, in a defamation case the state of mind of the defamer is irrelevant. Moreover, a judge’s decision on a matter becomes what is referred to as “the law of the case.” It is not subject to change, because the attorneys and the litigants are supposed to be rely on it not changing.
(Continued)
I have been practicing law now for a total of 45 years. The longer I practice the more convinced I become that the legal system in the United States (and presumably in other nations) is designed to maintain the status quo, to not rock the boat. It is intended to protect government entities, both state and federal, businesses and corporations, and capitalism in general, from lawsuits. (I can hear Jerry Fresia, who probably isn’t reading this, since he has stated he skips over everything I write, s. wallerstein, Eric, and the various Anonymice, saying, “Susselman finally woke up! What took him so long?”)
ReplyDeleteIn July I am scheduled for another trial, assuming the case does not settle. In that lawsuit my client is suing a Michigan college which he is claiming rejected his employment application as a Professor of Agriculture based on his being Hispanic and his age, and instead hired a woman whose curriculum vitae and application indicated that she did not have the qualifications stated in the employment notice for the position, and that she in fact demonstrably lied about her qualifications in her application. Based on my past experience, I should not expect, or even hope, that I will win. But I do expect to win, I am going to fight like hell to win, and if I lose I will exhaust every appeal until there is no place available to appeal to, even though I am not getting paid. Why do I do it? Well, I promised my client I would do it, and it is what I do. Besides, what else would I do with my time? How many more chess games can I play, and how many more movies can I watch?
There's already a question, isn't there, of the role of computers in handling incoming data and 'making decisions' with respect to the nuclear war fighting systems in the US and elsewhere?
ReplyDeleteThis first dates from 1987:
https://dl.acm.org/doi/pdf/10.1145/12527.12528
and this second (Section 3) from 2015
https://arxiv.org/pdf/1505.00246.pdf?
Petrov be thanked !!!
Marc,
ReplyDeleteYou have intellectual and other interests apart from the law, and if you stopped practicing you could pursue those interests. You could read books. You might decide to write fiction or maybe a screenplay. You might decide to take up something else you've never done before. There are lots of things you could do besides playing chess and watching movies.
You've practiced for 45 years, and now you're doing it purely on a pro bono basis. If I were you, I'd finish the cases you're already committed to and then I'd call it a day.
LFC,
ReplyDeleteThank you for the advice. It is the same advice my wife gives me.
But I believe there are prospective clients out there who need me, whose cases no other attorney will take. Tney call me The Man From Canton.
Marc, all that sounds exhausting. Maybe an adjunct position? Out of respect for Mr. Nichols I'll point out that there is absolutely no evidence that he was engaged in "reckless driving." Ditto for being suspected of having committed a felony. There is likewise no evidence that he resisted in any way. The members of the special police detail seem to have had a habit of stopping folks on pretense and tuning them up. We still don't know if the unprovoked assault on Tyre Nichols was personal or if they just got carried away. One thing it was not was a training problem.
ReplyDeleteaaall,
ReplyDeleteI agree that Tyrene Nichols did nothing to deserve to be arrested. But the officers who stopped him erroneously believed he had. Even given that error, had they been properly trained by someone like my client, they would have been taught, notwithstanding their error, how to use techniques to have him exit his vehicle without immediately escalating to using pepper spray and a taser.
And yes, being a litigation attorney, if it is done conscientiously, is a lot of work. That’s why I am up at 3:00 and 4:00 A.M. posting comments on this blog.
A discussion of the murder of Tyre Nichols, Glenn Loury, John McWhorter with an ex police officer, now a professor of criminology.
ReplyDeletehttps://www.youtube.com/watch?v=5UzTMQszDiY
Detestable Biden:
ReplyDeleteHow Biden helped protect Norfolk Southern from regulations that could have prevented the catastrophe in East Palestine.
https://www.counterpunch.org/2023/02/17/roaming-charges-82/
LFC: I'm not sure why anyone would want to put a Chatbot in charge of the nuclear arsenal, assuming such a thing were even possible.
ReplyDelete"The general who oversees U.S. defense against incoming missiles and air-based attacks wants to automate detection systems and move humans further out in the decision-making loop to meet the challenge of faster, more powerful weapons, he said Thursday.
'What we have to get away from is … "human in the loop," or sometimes "the human is the loop,"' Gen. Terrence J. O’Shaughnessy, commander of the United States Northern Command and of the North American Aerospace Defense Command (NORAD), said at a Senate Armed Services Committee hearing.
Having a human in the loop means a person still has complete control over starting or stopping any action performed by an intelligent system after receiving a cue.
Instead, O’Shaughnessy wants to move the military toward a 'human on the loop' standard, pushing human control farther from the center of the automated decision-making. It would still give humans oversight of an automated system, but the artificial intelligence would jump right into action, not needing human pre-approval as it would with a 'human in the loop' design.
Pentagon officials have previously stressed the need to keep a human 'in the loop' as a standard for automated systems, but O’Shaughnessy said that the military needs to move 'at the speed of relevance' to react to incoming threats. O’Shaughnessy added the need to move faster with machines because of the aggressive pursuit of AI by the Chinese and the Russian, and the speed at which they can move."
https://fedscoop.com/ai-should-have-human-on-the-loop-not-in-the-loop-when-it-comes-to-nuke-detection-general-says/
"In an article in War on the Rocks titled, ominously, 'America Needs a "Dead Hand,"' US deterrence experts Adam Lowther and Curtis McGiffin propose a nuclear command, control, and communications setup with some eerie similarities to the Soviet system referenced in the title to their piece. The Dead Hand was a semiautomated system developed to launch the Soviet Union’s nuclear arsenal under certain conditions, including, particularly, the loss of national leaders who could do so on their own. Given the increasing time pressure Lowther and McGiffin say US nuclear decision makers are under, '[I]t may be necessary to develop a system based on artificial intelligence, with predetermined response decisions, that detects, decides, and directs strategic forces with such speed that the attack-time compression challenge does not place the United States in an impossible position.'"
https://thebulletin.org/2019/08/strangelove-redux-us-experts-propose-having-ai-control-nuclear-weapons/
"AI systems can perform their assigned functions at blinding speeds, drastically outpacing human operators without experiencing fatigue or diminishing accuracy. They can comb through enormous amounts of data to find patterns and connections between seemingly unrelated data points.
AI could also make deterrence systems safer.... Automation could reduce the number of nuclear close calls that are related to human error, cognitive bias, and fatigue. Furthermore, AI can reduce uncertainty and improve decision making by protecting communication and extending the time available to decision makers responding to alleged launch detections....
[S]tates such as the United States and United Kingdom—from their positions of strength—may find it easy to decry fully automated nuclear systems. However, the same cannot necessarily be said for other nuclear powers. A fledgling nuclear weapon state surrounded by immensely powerful enemies could view fully automated systems as its only opportunity for an effective deterrent against the prospect of a lightning-fast first strike."
https://thebulletin.org/2023/02/keeping-humans-in-the-loop-is-not-enough-to-make-ai-safe-for-nuclear-weapons/#post-heading
Eric,
ReplyDelete"Want to play a game?"
Two satellite deployments, current and planned, communications and military:
Skynet. Skynet? Really? Hmmm...
https://www.airbus.com/en/products-services/defence/milsatcom/skynet-5
https://www.skynetsatcom.com/
Eric,
ReplyDeleteI'm far from an expert on this, but a Chatbot is a *particular sort* of AI. The articles you cite are not talking about Chatbots, afaict.
P.s. Yes, I've seen the Matthew Broderick movie.
I'm curious as to what sort of assumptions are built into Chatbot or any other form of AI. Does anyone out there know? I guess informed opinions may have to do.
ReplyDeleteAnonymous @1:12 p.m.
ReplyDeleteI'd suggest that you go to the blog Daily Nous and look at the recent thread on this, where someone has linked to an explanation of how Chatbots work. I'm on (primitive-ish) phone
w tiny keybd not computer, otherwise would give links directly.
LFC,
ReplyDeleteI thought it was obvious that I was saying there are people who would consider AI, not chatbots per se, to be a useful and necessary addition to weapons control systems.
https://www.cnn.com/videos/business/2023/02/17/fox-news-talent-executives-court-documents-darcy-vpx-cnntm.cnn
ReplyDeleteThe FCC should strip a network of its broadcasting license when it deliberately spreads lies to boost its ratings.
"But the officers who stopped him erroneously believed he had. Even given that error, had they been properly trained by someone like my client..."
ReplyDeleteNo, no, and no! We have no idea what they "believed." We do know there are creditable accusations that the special squad as a whole and the individuals in the Nichols case have engaged in unwarranted violent treatment of detainees and pretensive traffic stops. Nothing in the available footage I've seen justifies the way they handled the stop. You can't train a sociopathic thug out of his sociopathy and thuggishness. These special squads seem to attract just the sort of folks who should never be in them or just have a badge and a gun for that matter.
Like all of us, police bring who they are to the job and no amount of training can change that. My experience is that most LEOs are just doing their job. Out of at least thirty or so interactions, I've had a few really help me out, a few let me slide, one steal from me, a couple of totally pretensive stops, a police riot, one pulling his sidearm on me, and one interesting SWAT encounter. Back in the day, a friend's father had a precinct captain on the payroll and I was present at an interesting traffic stop back then (1950s).
BTW, there's a whole continuing education industry consisting of "trainings" for LEOs that inculcates a "warrior" mentality in the officers taking them.
I guess it's good that you believe so strongly in your client and he may well have had a case in how he was treated but he also may have been an outlier and a dinosaur in his training methods. Times change, your client seems not to have. I assume that he has a pension from his police days as well as whatever JC teachers in Michigan get (SS/MPSERS?).
Jerry, Green Lanternism is one of the Left's major sins. That is one of the reasons why some of our states no longer qualify as democratic republics and education in some is going rather fascist. With Counterpunch a little salt is always in order.
ReplyDeleteWhat is Green Lanternism?
ReplyDeleteMarc:
ReplyDeletehttps://www.washingtonpost.com/nation/2023/02/17/police-shootings-false-misleading/
s.w., it's the belief that a president can accomplish most anything by sheer force of will. If this or that good thing didn't happen then the president didn't want it to or didn't try hard enough.
For example: The recent Railroad settlement has been portrayed here-abouts as "Biden crushing the unions" over sick leave. While the relevant agency in an administration mediates an agreement, it has to get approved by the Congress under the Railway Labor Act.
https://crsreports.congress.gov/product/pdf/LSB/LSB10861
Now the agreement that was negotiated didn't include the sick leave the unions wanted. Some unions approved the deal and others, representing a majority of the workers, didn't.
The Act provides for a cooling off period which kicked the can past the November elections and into the Congress.
This was then introduced in the House as an amendment to the original settlement and it passed:
"(A) for 7 days of paid sick leave annually, except that nothing in this subparagraph shall supersede any existing labor agreement between such parties that provides for more than 7 days of paid sick leave annually; and..."
https://www.congress.gov/bill/117th-congress/house-concurrent-resolution/119/text
It then went to the Senate where it failed cloture 52 - 43. The original agreement then passed and went to the president.
BTW, it never occurs to some folks that a railway strike can throw the nation into a recession and that unions can lose a strike (read the railway act).
BTW 2, there was a national paid leave provision in BBB but that was a reconciliation bill (avoids cloture but needs 50 +1 votes). Joe Manchin said "no way" and his vote was needed so no national paid leave.
According to some who seem not to have ever read the Constitution, the USC. or the CFR, it's all Joe's fault.
There is a Green Lantern Oath:
"In brightest day
In blackest night
No evil shall escape my sight!
Let those who worship evil's might
Beware my power ― Green Lantern's light!"
Hope this helps.
aaall,
ReplyDeletethanks.
"The FCC should strip a network of its broadcasting license when it deliberately spreads lies to boost its ratings."
ReplyDeletePrior to Reagan there used to be a Fairness Doctrine. Then came Limbaugh and clones followed by Fox News.
aaall
ReplyDeleteNo, No, No, and NO!
I had five other police academy instructors ready to testify. They were going to testify that the techniques my client used were widely recognized, legitimate techniques that were endorsed in the Police Teaching Manual that they all used. I was gong to enter the police manual as an exhibit, which explicitly described the techniques in question.
The judge reversed a critical ruling the last minute, after the jury had been empaneled. He had originally ruled that none of the investigative reports that the defense attorneys wanted to offer as exhibits were inadmissible because the contained hearsay. The defense attorneys had screwed up by not listing any of the cadets who were making the accusations as witnesses. Without the cadets testifying, the defendant whom we claimed committed libel had absolutely no defense. The last minute, the defense attorneys made a bogus argument that what the cadets claimed they saw was admissible to prove the defendant's "state of mind" when she made the libelous statement. The "state of mind" of a person who makes a false, defamatory statement about a private citizen is irrelevant. It does not matter what motivated the libeler to make the false statement. The judge bought their ridiculous argument and stated that parts of the reports, which he had originally ruled were inadmissible, might be admissible to prove the defendant's "state of mind." This revision of his ruling, the last minute during the trial, seriously prejudiced the case against my client. When I told him of this revision, he decided not to proceed further. He concluded he could not get a fair trial in front of this judge, and I agreed with him. I assured him that if the judge admitted any part of the reports during the trial, I would get him reversed on appeal. but he was unwilling to go through the stress of the trial, expecting a reversal down the road. The judge was totally out of line in reversing his prior ruling.
Correction:
ReplyDeleteHe had originally ruled that none of the investigative reports were admsible.
aaall
ReplyDeleteAs a factoid:
The Fairness Doctrine had nothing to do w stripping a station of its license for lying. That's not what the FD was about. I cd say more about it but short on time rt now.
ReplyDeleteLFC, licenses could be challenged and were. The doctrine provided leverage which was used. Conservative talk radio and Fox News couldn't exist under the FD, which is why they popped up as soon as the doctrine was ended. Allowing consolidation of the industry was another problem.
Marc, while your continued mischaracterization of the Nichols case is my main concern, your comment does raise a question. I see two issues here, the items taught and the teaching.
Even if your expert witnesses had testified that the techniques were legitimate, how would that have helped your client as the way he taught them seem to have been the issue? DIs work out of the same manual but most are eventually respected and even liked while others are hated and a few wind up in Leavenworth. Had any of those experts faced the same complaints from their students?
aalll,
ReplyDeleteTwo answers to your two questions.
First, several of the other police academy instructors worked with my client in the same classes. They were going to testify that none of the things the cadets claimed – misuse of the techniques – had occurred. Had it occurred, they would have reported my client for misconduct.
Second, even if such misuse of the technique(s) had occurred, only the cadets, as the purported eyewitnesses, could testify to it having occurred. The defendant had not been an eyewitness. In order to defend that the defamatory statement she made was true, the cadets would have to be called as witnesses and testify in court regarding whet they claimed occurred. That is the essence of the hearsay objection. A prosecutor may not prove that the criminal defendant murdered his wife by having a witness testify that he was told by an eyewitness that the defendant murdered his wife. The eyewitness must testify. But here, the defense attorneys had failed to list any of the cadets as witnesses, and then, two weeks before the trial, they filed a motion to amend their witness list to add all of the cadets who had made the accusations. The court originally ruled that it was too late, and denied the motion. Then the defense attorneys, being the squirrels they were, argued with the court – after the jury had already been selected – that the defendant could testify what she was told the cadets said, because it went to her “state of mind” as to why she said it. This was a utterly ridiculous argument, because the state of mind of a libeler regarding what the libeler thought was the truth, is irrelevant. What matters is whether what she was told was in fact true. If not true, it constitutes libel, regardless what the libeler’s state of mind .was. Without the cadets testifying in court, the defendant had not defense. By changing his ruling the last minute – after the jury had already been selected – he allowed the defense attorneys to get evidence in through the back door which they were unable to get in through the front door. My client justifiably concluded that he could not get a fair trial in front of this judge, and he and his wife decided to throw in the towel rather than go through the ordeal of a trial. In my closing remarks, I told the judge I agreed with my client – that he could not get a fair trial in front of him. I said that he had put his thumb on the scales of justice in order to accommodate the defense attorneys’ negligence in failing to name the cadets on their witness list.
P.S.: To add insult to injury (injury to insult), I woke up yesterday morning with one of my eyes swollen and shut. It appears I contracted a case of conjunctivitis at the courthouse.
aaall
ReplyDeleteIn 1987 I co-authored a small book about the FD. Licenses were challenged under the FD but not *for lying*. The FD said stations had to cover "issues of public importance" (or words to that effect) and give a "reasonable opportunity" (or words to that effect) for presentation of differing views. Vague language, v inconsistent enforcement dependent on listeners' and viewers' complaints. Courts constantly having to face tensions w other considerations, broadcasters constantly pushing against it.
What doomed the FD basically or in large part was the advent of cable and the fact that no longer was the public faced w only a few sources of TV news and info, and therefore the broadcasters were able to argue that "differing views" were available at the click of a dial or button, so FD obligations on broadcast licensees no longer made sense in the new context. FCC in Reagan admin and cts bought the argument.
I forget whether Fox News today is a broadcast or cable channel, but if it's a cable channel it certainly cd have existed under the FD. Why? Because the FD *never applied to cable*. It only applied to broadcast TV and radio licensees.
P.s. the FD never prevented the big 3 networks from making their views clear on something when they really, really wanted to. When Water Cronkite questioned Vietnam policy on the CBS Evening News in the wake of the Tet offensive, everyone knew where CBS stood bc Cronkite *was* CBS. The fact that they might have put on a 4-minute rebuttal next morning or the next week (and I'm not even sure they did that) didn't mean shit.
ReplyDeleteAnd the FD never required equal time for opposing views or specific rebuttals. All it required was a "reasonable opportunity" for presentation of differing views.
ReplyDeleteThere was -- and I believe still is -- an "equal time" rule for political candidates, but that's separate from the FD.
Although of course the so-called "fairness doctrine" completely excluded the radical left.
ReplyDeleteaaall,
ReplyDeleteBiden rolls over for corporations. He's a corporate puppet. Never has he challenged them his entire career.
Given that the rr industry had raked in unprecedented profits all the while rr workers suffered illnesses, Biden could have nationalized the industry, as Truman did with steel. Or publicly shamed them as JFK did with US Steel AND at the same time JFK had RFK sever gov contracts with non-compliant steel producers. It's called hardball.
In the case of JFK confronting private power, he called the US Steel price hikes “a wholly unjustifiable and irresponsible defiance of the public interest.” He criticized “a tiny handful of steel executives whose pursuit of power and profit exceeds their sense of public responsibility.” The execs had “utter contempt” for the U.S., Kennedy said. Can you imagine toady Joe coming out publicly like that? I can't.
In private, Kennedy added: “My father always told me that all businessmen were sons of bitches, but I never believed it until now.”
Neolib presidents only play hardball against workers; the Fed ALWAYS prioritizes inflation over unemployment. In a capitalist economy, workers, not owners, always need to be disciplined. Manchin would have his wings clipped if Dems followed the Constitution and really fought to end the filibuster mechanism that allows the Dems to do nothing, cede power to owners, and pretend to be on the side of working families.
Your points re the Constitution only go to show that checks and balances go only one way: to check public power, thus allowing private power's capturing of government itself.
In my opinion, one doesn't talk politics unless one talks institutions, and my position is that our current institutional arrangements need transformation - as MLK and so many others have been saying for the past 40 years.
Jerry Fresia,
ReplyDeleteYou are mistaken about Pres. Biden’s authority to nationalize the IT industry, and you are also wrong about Pres. Truman. Yes, he nationalized the steel industry during the 1952 steel strike, but he was rebuked by the S. Ct. in Youngstown Co. v. Sawyer in an opinion written by J. Black (concurred in by J. Douglas, the two most liberal members of the Court), for violating the 5th Amendment rights of the steel mills owners. The only way government may seize the private property of citizens or corporations is via the power of eminent domain under the 5th and 14th Amendments, which require due process and just compensation.
The Fairness Doctrine was established in order to insure that TV and radio stations would allow differing views about issues to be expressed on those stations. It was not established to protect intentional dissimulation by the stations. The emails which have been unearthed by the Dominion lawsuit against Fox News disclose that at the same time that its executives and commentators (Carlsen, Hannity and Ingraham) were stating that Trump won the election and it was stolen due to the malfunctioning of the Dominion voting machines, they were mocking Trump and Giuliani, calling them idiots and stupid, behind their backs. This isn’t fair comment. This is intention prevarication intended to mislead the public, and it would not have been protected by the Fairness Doctrine were it still in effect. Under the Supreme Court decision in United States v. Southwestern Cable Co., 392 U.S. 157 (1968), the FCC has jurisdiction over cable news and entertainment broadcasting. The FCC has the authority to strip a cable “news” station which deliberately lies to, deceives and misleads the public of its license, and should do so to Fox News.
Why the difference between the authority of the FCC to strip a cable station’s license vs. Pres Truman’s right to nationalize the steel industry? Because the medium through which cable news operates belongs to the public, and the right to use that medium is a privilege, not a right – like the requirement to have a driver’s license to drive a car in ;public.
The medium through which cable news operates does not belong to the public because cable does not use the public airwaves (more on this later).
ReplyDeleteOf course the Fairness Doctrine does not protect stations, cable or broadcast, that engage in intentional lying. That's because the Fairness Doctrine *does not address* lying. It's not *about* lying.
Cable stations do not use the public airwaves and are not licensed in the way that broadcasters are. Cable companies are not subject to the provisions of the Communications Act of 1934 that applied (and some of which still apply) to broadcasters. The reason the Fairness Doctrine did not apply to cable is precisely that cable companies do not use the public airwaves, are not licensed to use a part of the electromagnetic spectrum, and thus were seen as not having the same kinds of obligations to the public as broadcasters. The FCC can't strip a cable company of its license (in the usual sense) because cable companies do not get a license to use the broadcast spectrum.
So what can the FCC do to a company that engaged in the kind of conduct Fox News (if Fox News is cable) is accused of? I'm not sure, but the FCC could probably (?) fine or penalize it in some way, resulting no doubt in a lot of litigation. But, to repeat, the FCC can't strip a cable company of its license because, afaik, cable companies do not get licenses.
P.s. second graph about Fairness Doctrine shd have been in past tense, not present tense.
ReplyDeleteI just checked, and the Fox News Channel is a cable channel, not broadcast. So Fox News has no broadcast license to strip.
ReplyDeleteOne further clarification: the Fairness Doctrine never protected broadcasters from anything. What it did was to impose certain obligations on them in exchange for their having been granted a license to use a part of the public airwaves.
ReplyDeleteThis comment has been removed by the author.
ReplyDelete
ReplyDeleteLFC, without getting deep in the weeds, I'll point out that cable is regulated locally and federally (e.g. Quincy Cable, Turner Broadcasting decisions). The potential scope is under pursued.
Fox was a relative latecomer. The initial poison was Limbaugh, et al and that was over the airwaves. His show happened soon after the FD was repealed and was soon everywhere. It was a major radicalizer. Not a few personalities took a sharp heel turn to the right post Rushbo.
Soon after its debut it was everywhere. On job sites in So. Cal. one of two things were playing - Latin music or Limbaugh's show. Once I was going up I-5 in the middle of nowhere and stopped at a gas station. The guy in front of me opened his door as I did and I got stereo Limbaugh.
There are large sections of electorally dispositive America in which there are only one or a very few radio station options - Right wing talk, CW, Christian, maybe a Hispanic station.
https://www.google.com/search?client=firefox-b-1-d&q=vanishing+point#fpstate=ive&vld=cid:f57919f6,vid:LGVgrnRtrhE
Another problem that occurred in the same time frame was increasing ownership consolidation which went bonkers after the mid 1990s cap elimination and increasing format homogenization.
Then we have Sinclair Broadcasting..
The Telecom Communications Act of 1996 (and the regulations that followed) have enabled the shift to the right. It included both broadcast and cable. This is a "won't" not "can't" issue and was a choice as was the repeal of the fairness doctrine.
In 2023 with internet what's on the radio or TV is increasingly less important.
ReplyDeleteI listen to a daily online leftwing news show, La Voz de los que Sobran, here in Chile.
Basically listener supported, with a few ads from progressive small businesses.
Any rightwing group can put something similar on too and probably get more small business ads.
No way to control it unless you're the Chinese or Putin.
aaall:
ReplyDeleteThe following passages, quoted from the Wikipedia article on the Fairness Doctrine, are pretty accurate:
"The fairness doctrine had two basic elements: It required broadcasters to devote some of their airtime to discussing controversial matters of public interest, and to air contrasting views regarding those matters. Stations were given wide latitude as to how to provide contrasting views: It could be done through news segments, public affairs shows, or editorials. The doctrine did not require equal time for opposing views but required that contrasting viewpoints be presented....
"In 1969 the United States Supreme Court, in Red Lion Broadcasting Co. v. FCC, upheld the FCC's general right to enforce the fairness doctrine where channels were limited. However, the court did not rule that the FCC was obliged to do so.[7] The courts reasoned that the scarcity of the broadcast spectrum, which limited the opportunity for access to the airwaves, created a need for the doctrine."
This is why, when cable arrived and there were (for people who chose to subscribe to cable, which millions did though I never did) hundreds of channels, the broadcast industry cd go into court and say: "Dudes! There are now hundreds of channels! The FD is no longer justifiable because there is now more diversity of speech in the TV (broadcast plus cable) arena [or at least theoretically more diversity] than before. So you don't need to continue to burden our 'rights' as 'speakers' [albeit special speakers who use the public airwaves] with this doctrine."
Were there counterarguments? Of course. Did the FCC and the courts have to buy the broadcasters' arguments? No. Was it a choice? Of course it was: every change in regulatory policy and judicial doctrine is a choice. Did I ever deny, in my comments above, that it was a choice? No.
So, since I never said it was not a choice, why are you, aaall, writing at the end of your comment @4:47 p.m. that repeal of the FD was a choice, as if I had said it was not a choice, which I never said. Of course it was a choice!!! And I thought it was the wrong choice and that the FD shd be kept, but the way the cts had stated a main part of the rationale in terms of scarcity of the spectrum made it somewhat difficult for them to keep it when cable came along. Difficult but not impossible: so yes, it was a choice.
p.s. I don't recall whether anyone, at the time, took the position that the Fairness Doctrine should be kept for radio but not for broadcast TV. That position might have made sense, legally and strategically. And i don't remember exactly what i wrote back then and I'm certainly not going to dig out and re-read the f****** thing.
p.p.s. It wd be ridiculous for me to pretend that I have kept up w developments in communications policy and law since the late 1980s, since I haven't. It was not that exciting a topic then, and it's probably not that exciting a topic now. Now w the Internet throwing up new questions the cts will always find new things to keep them busy, but a lot of it will still be boring, like about 70 percent or so (give or take) of what cts do.
Make that more like 80 percent.
ReplyDeleteMarc,
ReplyDeleteYOu have a point re Truman and nationalization; but the larger point obtains. If Biden was actually upset by the RR industry exploitation of workers in the face of unprecedented profits, there are many ways he could make that known and many ways he could put pressure on the industry; the JFK approach being the minimal. Instead we have a corporate lap dog.
I think I should try to be a little bit clearer than I was above.
ReplyDeleteAs I recall, there were at least two main rationales for the Fairness Doctrine (actually more than two, but two that are most relevant here). (1) As users of a scarce public resource, namely the broadcast spectrum, broadcasters should have an obligation to serve "the public interest, convenience and necessity" (to quote the '34 Comm. Act) by, among other things, ensuring presentation of contrasting views on issues of public importance. (2) Because the media landscape at the time was such that a handful of big TV networks, and a larger but still not overwhelmingly large number of radio stations, exhausted the space for non-print news and opinion, the public might be deprived of the diversity of views required by an informed electorate, at least in non-print formats, unless something like the Fairness Doctrine were in place.
The advent of cable television did not really undermine rationale (1), but it did tend to undermine rationale (2), or at least the broadcasters were able to persuade the regulators and courts that it did.
Jerry,
ReplyDeleteYou are correct about JFK. At a news conference on April 11, 1962, he addressed the nation and lambasted U.S. Steel for raising its steel prices. This is part of what he said:
“In this serious hour in our nation's history, when we are confronted with grave crises in Berlin and Southeast Asia, when we are devoting our energies to economic recovery and stability, when we are asking Reservists to leave their homes and families for months on end, and servicemen to risk their lives -- and four were killed in the last two days in Viet Nam -- and asking union members to hold down their wage requests, at a time when restraint and sacrifice are being asked of every citizen, the American people will find it hard, as I do, to accept a situation in which a tiny handful of steel executives whose pursuit of private power and profit exceeds their sense of public responsibility can show such utter contempt for the interests of 185 million Americans.”
You can read the entire news conference statement, and even listen to it, here:
https://www.jfklibrary.org/archives/other-resources/john-f-kennedy-press-conferences/news-conference-30
Did JFK’s lambasting U.S. Steel work? Well, Yes and No. In the following weeks, “the nation’s eight biggest steel companies surrendered to the President’s demands in quiet succession.” However, according to this author’s viewpoint, JFK’s rebuke, and the resulting reduction in the price of steel, ultimately killed the steel industry:
“The President killed an already-dying industry. By July 1962, the steel industry was working at just 55% capacity, vs. 70% in April, when the President attacked them. Very soon, Japan began to dominate the steel market, which was already beset by competition from non-steel construction products made from plastics, aluminum, cement, or glass. While the normal challenges of business are always present, the President’s attack contributed greatly to the decline of the U.S. steel industry over the next few decades.”
https://www.crossingwallstreet.com/archives/2017/04/jfk-attacks-the-steel-industry.html
I am not in a position to argue one way or another, whether the above claim is true. But as in the case of Newton’s third law, there may be a corresponding law in the area of finance and economics that for every action in the finance and economics to control the profit motive, there is an opposite and equal reaction. I do not know if this is absolutely the case, but I would not dismiss it as malarkey.
(Continued)
Remember President Nixon’s imposition of wage and price controls in August, 1971, referred to as “the Nixon shock”? President Nixon stated:
ReplyDelete“The third indispensable element in building the new prosperity is closely related to creating new jobs and halting inflation. We must protect the position of the American dollar as a pillar of monetary stability around the world. In the past 7 years, there has been an average of one international monetary crisis every year… I have directed Secretary Connally to suspend temporarily the convertibility of the dollar into gold or other reserve assets, except in amounts and conditions determined to be in the interest of monetary stability and in the best interests of the United States. Now, what is this action—which is very technical—what does it mean for you? Let me lay to rest the bugaboo of what is called devaluation. If you want to buy a foreign car or take a trip abroad, market conditions may cause your dollar to buy slightly less. But if you are among the overwhelming majority of Americans who buy American-made products in America, your dollar will be worth just as much tomorrow as it is today. The effect of this action, in other words, will be to stabilize the dollar.”
“The American public believed the government was rescuing them from price gougers and from a foreign-caused exchange crisis. Politically, Nixon's actions were a great success. The Dow rose 33 points the next day, its biggest daily gain ever at that point, and the New York Times editorial read, "We unhesitatingly applaud the boldness with which the President has moved." By December 1971, the import surcharge was dropped as part of a general revaluation of the Group of Ten (G-10) currencies, which under the Smithsonian Agreement were thereafter allowed 2.25% devaluations from the agreed exchange rate. In March 1973, the fixed exchange rate system became a floating exchange rate system. The currency exchange rates no longer were governments' principal means of administering monetary policy.”
(Continued)
According to one widely held perspective, however, Nixon’s actions had long-term disastrous consequences for the American economy, which ultimately hurt Americans:
ReplyDelete“The Nixon Shock has been widely considered to be an economic failure for bringing on the 1973–1975 recession, the stagflation of the 1970s, and the instability of floating currencies. It is credited with enabling the Central banks to print indiscriminate amount of dollars and then those dollars getting accrued at the top. The rich got increasingly cheaper access to capital which eventually led to consolidation across industries and much better bargaining power for the producers. The dollar plunged by a third during the 1970s. According to the World Trade Review's report "The Nixon Shock After Forty Years: The Import Surcharge Revisited", Douglas Irwin reports that for several months, U.S officials could not get other countries to agree to a formal revaluation of their currencies. The German Mark appreciated significantly after it was allowed to float in May 1971. Further, the Nixon Shock unleashed enormous speculation against the dollar. It forced Japan's central bank to intervene significantly in the foreign exchange market to prevent the yen from increasing in value. Within two days August 16–17, 1971, Japan's central bank had to buy $1.3 billion to support the dollar and keep the yen at the old rate of ¥360 to the dollar. Japan's foreign exchange reserves rapidly increased: $2.7 billion (30%) a week later and $4 billion the following week. Still, this large-scale intervention by Japan's central bank could not prevent the depreciation of US dollar against the yen. France also was willing to allow the dollar to depreciate against the franc, but not allow the franc to appreciate against gold. Even much later, in 2011, Paul Volcker expressed regret over the abandonment of Bretton Woods: "Nobody's in charge," Volcker said. "The Europeans couldn't live with the uncertainty and made their own currency and now that's in trouble."
“Debates over the Nixon Shock have persisted to the present day, with economists and politicians across the political spectrum trying to make sense of the Nixon Shock and its impact on monetary policy in the light of the financial crisis of 2007–2008.”
The point is that efforts which you and I may regard as imperative to protect the public from unsavory capitalists, and that the failure by, e.g., Biden, to pursue them are a sign of cowardice and lack of commitment, can have unpredictable consequences which, in the long term, actually harm the public we are attempting to protect. There are forces at work, both domestic and international, which bend in the direction of selfishness and greed, regardless our best intentions.
Having wasted a lot of time on the Fairness Doctrine, I'm not going to get into a debate about what Marc has just posted.
ReplyDeleteBut v briefly: the end of fixed exchange rates is, as one line in the above quotes suggests, sometimes referred to, a bit misleadingly, as the "end of the Bretton Woods system." I do not think it - or for that matter the other things Nixon did - was the main cause of the stagflation of the 70s. There were much deeper "structural" causes. YMMV.
What it prob did do was help greatly increase speculative currency trading and "financialization." And it may also have helped spur inequality, as some of the above quotes suggest.
Lastly, I'm not up on the details, but I think Nixon cd have imposed wage and price controls without taking the dollar off gold. Marc"s comments above mash these two things together, but I'm not sure they had to be done together. I'm sure there are complexities here, and I may be wrong -- which is something that Marc, by the way, almost never says about himself.
Back to the topic on canceling the license of media which lie.
ReplyDeleteHow do we know that any media source is lying unless we have a whistleblower from inside that media source?
Plenty of people believe that Trump won the 2020 election, that the earth is flat, that
Covid vaccines put a chip in your body, that Putin blew up Nord Stream 2.
Plenty of people sincerely believe all kinds of things which I consider to be false. Are they all lying?
Plenty of people do not sincerely believe things which I consider to be false and claim that they do in order to deceive the public, but how do I distinguish them from those who do sincerely believe them?
Or should some agency or the courts have a right to close media which deceive the public whether they are lying or they are sincerely mistaken?
LFC,
ReplyDeleteI never qualify my conclusions? What does this mean:
"I am not in a position to argue one way or another, whether the above claim is true. But as in the case of Newton’s third law, there may be a corresponding law in the area of finance and economics that for every action in the finance and economics to control the profit motive, there is an opposite and equal reaction. I do not know if this is absolutely the case, but I would not dismiss it as malarkey."
As something of a side-note to my comments above, my experience this last week has been an eye-opener. Everything was going in my favor. The defendant whom I was suing for defamation did not have a defense. The eyewitnesses whom she needed to testify to prove that her defamatory statement was arguably or substantially true could not testify, since her attorneys had failed to include them on her witness list. The defense attorneys’ last-ditch effort to correct their error by moving to amend their witness list was denied by the judge. Their request to have the investigative reports which incorporated the hearsay claims of the cadets was also denied by the judge. I couldn’t lose! My wife warned me not to get over-confident. But what could go wrong, I thought. But then the squirrely defense attorneys figured out a way to dupe the judge, and the very day the trial started, and the jury had been empaneled, they offered the ridiculous argument that portions of the investigative reports containing the hearsay of the cadets should be admissible to prove the defendant’s “state of mind” as to what motivated her to issue the defamatory statement. The cadets’ accusations were not hearsay, because they were not being offered to prove the truth of the matter asserted – they were just being offered – even if they were false - to justify the defendant’s state of mind and why she issued the statement. The judge bought it, despite my argument that a libeler’s state of mind is irrelevant. The judge essentially went back on his ruling and pulled the rug out from under me. When my client learned this, he decided to pull the plug. Could I get the judge reversed on appeal? Probably, but that would take another one to two years, and my client would have to pay the $500.00 appeal fee. As they say, you can’t win for losing.
Which leads me to the following conclusion: In human affairs, evil ultimately prevails. (Sorry, Prof. Wolff.) Why? Because in human affairs the operation of evil is the equivalent of the effect of entropy in the universe – the principle that the universe tends towards disorder, rather than order. Evil is a disruptive force. In order to defeat evil, humans of good intentions first have to organize, and then have to reach agreement on a common strategy to defeat evil. In the meantime, evil, and those who promote it, proceed to wreak havoc. Putin may ultimately be defeated, but in the meantime he will have caused the death of 100s of thousands of innocent Ukrainians (and Russians), leaving widows and orphaned children, and untold amounts of property destruction, in his wake. He will die a satisfied man. Likewise, the Allies ultimately defeated the Axis Powers, but, aside from the death and destruction which the fascists inflicted on mankind, in order to defeat them, the U.S. had to resort to the creation of a military weapon whose destructive power has threatened the extinction of humankind ever since. Ultimately, evil prevailed.
s. wallerstein,
ReplyDeleteThe way to prove that an individual, company or media network is lying is to do what Dominion has done in its lawsuit against Fox. You obtain evidence that while the individual, company or medial network is asserting that proposition x is true, behind the scenes they are saying that propositions x is not true. The individuals whom you refer to as believing proposition x have been so convinced, that they are not saying privately that proposition x is not true. But Fox News did.
Marc,
ReplyDeleteFair enough. That's why I mentioned the possibility of a whistle-blower above.
Marc,
ReplyDeleteLet's assume for a minute that I agree that there is such a thing as good and evil and that I more or less accept your definition of what is good and what is evil. I've read your comments long enough to have a general idea of what your definition is.
The world is incredibly complex and at any given moment there are countless variables to consider. In some situations good wins, in others evil does.
There is no universal progress towards good nor towards evil. While Putin is committing acts of evil in Ukraine, doctors and nurses all over the world are saving lives, which we agree is good, I'm sure. Scientists are developing vaccines which prevent disease and save lives. Teachers are teaching kids to read.
So in the case you were involved in, the bad guys won. In other cases, the good guys win. Sometimes they tie.
s. wallerstein,
ReplyDeleteIn the examples of “good” that you identify, they involve a human seeking to overcome the adverse effects of a disease, illness, or natural disaster. Unquestionably, physicians, nurses, EMS employees, firefighters, etc., are doing good and heroic things all the time, often with success. The situations they are dealing with are what could be referred to in legal terms as “acts of God.”
These are not the situations I am referring to. The situations I am referring to have as their genesis human conduct – use of violence, invasions, exploitation. Having lived now for 74 years, I believe that, generally in such situations, evil prevails.
A separate note on railway companies in light of the derailment in East Palestine.
Yesterday I was driving to perform some errands when I came across an intersection blocked by a stopped railway train. Under Federal Railroad Administration regulations, a railroad train may not block an intersection for more than 5 minutes, unless there has been a mechanical failure which prevents the train from moving. So I waited in my car, figuring the train would start moving sooner than it would take me to use an alternate route. Well, 5 minutes passed; then 10 minutes; then 15 minutes. Cars started turning around. I decided to turn around, drove about 1.5 miles South, then 3 miles East, and 1.5 miles back North to get to my destination. I did my shopping, which took about 1 hour. When I left, I decided to take the same route back, figuring the train would have moved by now. Well, it had not; it was still blocking the intersection. So, I took another alternate route home. Now, if someone had a medical emergency, for example, and was in a rush to get to a medical facility, that train’s obstruction of the intersection could have been a matter of life or death to that individual.
I have no idea what railway owned the train in question, but I am going to file a complaint with the FRA about this incident. Will it do any good, i.e., will the railroad be fined? Probably not.
Haven't read most of the thread, but upon seeing "Evil prevails," I'm compelled to recommend a recent book - an Honorable Mention for the 2022 Journal of the History of Philosophy Book Prize, as seen on Leiter Reports. The book is: Mara van der Lugt, Dark Matters: Pessimism and the Problem of Suffering.
ReplyDeleteI'm a little under a quarter of the way through, but loving it. It may turn out to be the best thing I read on the subject of philosophical pessimism - balanced, humane, readable, rich in fascinating intellectual history.
Looks like my link to Leiter's blog was disabled?
ReplyDeletehttps://leiterreports.typepad.com/blog/2022/12/jhp-book-prize-for-2022.html
s. wallerstein,
ReplyDeletePost-script:
You note that in my case the “bad guys” prevailed, but in the long run it may turn out to be 50-50. That is not my experience, nor consistent with my reading of legal decisions. In law and litigation, it is my experience that the “bad” guys win far more often than the “good” guys. I would estimate that the odds are 80-20% against the good guys.
Judges generally favor defendants in civil lawsuits, and the prosecution in criminal cases, and they have numerous ways to influence a jury so that the verdict comes out the way they want it – as in my case, where the judge, who had favored the defendant, an Undersheriff, from the get-go. The only reason he denied the defendant’s motion to amend the witness list was that it was so late in the litigation that he realized that if he granted the motion, he would be committing reversible error for an abuse of discretion. However, the ruse that the out-of-court statements of the cadets went to the Undersheriff’s state of mind had enough superficial appeal that he grabbed it, knowing it would probably result in a verdict in the Undersheriff’s favor. This ruling meant that the accusations of the cadets would come into evidence, without my having an opportunity to cross-examine the cadets, since they would not even be in court.
There is no federal railroad administration regulation regarding how long a train can block a crossing.
ReplyDeleteThere's a Michigan law that says no longer than 5 minutes, but the 6th circuit ruled that Michigan's law is preempted by the Federal Railroad Safety Act.
T.J.
ReplyDeleteThank you for the correction.
You must be a lawyer. (Hopefully, not a judge.)
People in general,
ReplyDeleteIt's been a week since Professor Wolff posted that he was not feeling well.
Maybe one of us should write him to see how he is.
I nominate Jerry Fresia, who Professor likes and respects and who is on this thread above.
Indeed, but things like that often take a week or so to abate (personal experience). Still, a word would be reassuring.
ReplyDeleteMay be of interest:
https://www.jstor.org/stable/3116217?seq=4
https://www.journals.uchicago.edu/doi/epdf/10.1086/690968
A major drawback of valorizing a given Green Lanternism is that history is usually minimized or ignored. Kennedy being mean to Bethlehem and U.S. Steel was irrelevant to the larger story and should be seen in the context of the 1959 steel strike and the relevance of 2-B in the contract (workers actually care about the shop floor) as well as the development of foreign steel production. (I talked with truck drivers in the mid-1960s who remembered when there was no union, no benefits, no rules, and making $0.50/hr. Steel workers in the late 1950s also remembered those days.)
In the 1950s Europe and Japan was well on the way to recovering from WWII (I remember a family friend who had immigrated to the U.S. from Germany in the early 1930s sending care packages to her family in the late 1940s). Those nations built new factories while U.S. steel management wanted to squeeze workers rather then modernize (new mini-mills are competitive).
Inflation kicked off during the Vietnam War and the oil shocks following the 1973 Arab-Israeli war. The decade was bracketed by the oil shocks following the Iranian Revolution and the Iraq-Iran War (the 30 year bond hit just over 15% in 1981).
s. wallerstein,
ReplyDeleteI have been hoping that Prof Wolff is doing better and is just busy preparing for his upcoming lectures. I think he said the first would be this week or next.
(I'm not a neurologist or headache specialist, but the diagnosis of "cluster headaches" seems quite dubious, as the onset of cluster headaches almost never occurs so late in life. In fact, if he really has been experiencing cluster headaches per se, it might very well merit a report in the medical literature.)
ReplyDeleteI second S. Wallerstein's nomination of Jerry to contact the prof.
David Palmeter,
ReplyDeleteIf Jerry somehow isn't available to do that, could you do it please?
I'd do it but a couple of times Professor Wolff has referred to me as someone who comments too much and off topic. Marc is also a trouble-maker and once Professor Wolff associated LFC, unjustly I believe, with Marc and myself.
So thinking about who, if Professor Wolff is still sick, might be someone he'd like to hear from, I thought first of Jerry and now you.
Maybe I shouldn't have made public my reasoning, but what I just said is hardly top secret.
I have just sent an email to Prof. Wolff inquiring regarding his health. Although he has expressed annoyance with me a few times, he is not one to hold a grudge, especially not against one of his former students.
ReplyDeleteIf he responds to the email, and gives me permission to post it, I will advise everyone regarding its contents.
T.J. and others,
ReplyDeleteI found the case you were referring to in which the 6th Circuit held that a Michigan statute which placed a 5 minute time limit on railroad obstruction of intersections was pre-empted by federal law. The case is CSX Transportation, Inc. v. City of Plymouth. It turns out that it was in the very same city that I encountered a train blocking an intersection for over an hour. The decision indicates that CSX “has been repeatedly fined for violating the statute.” So, CSX sued the City of Plymouth and the State of Michigan to have the Michigan statute overturned based on the doctrine of pre-emption, and they won, under the Commerce Clause of the Constitution. So, CSX, in its arrogance, can continue to block Michigan intersections for hours on end with impunity. Just another example of how the Constitution and the legal system protect corporate America from abusing their power and taking advantage of the American public.
I checked on CSX Transportation on Wikipedia. Below is a list of railway mishaps in which its trains have been involved, including 8 derailments. One of the incidents inspired the 2010 film “Unstoppable,” about a runaway freight train, starring Denzel Washington and Chris Pine (the last movie directed by Tony Scott, Ridley Scott’s brother, before his suicide).
ReplyDelete• 1986 Miamisburg, Ohio, train derailment
• 1993 Big Bayou Canot rail accident
• 1996 Maryland train collision
• 1997 West Virginia train collision; one killed[27]
• 2000 Tennga, Georgia bus–train collision; 3 killed, 4 injured
• 2001 CSX 8888 incident, 1 minor injury. This was the inspiration for the 2010 action film Unstoppable
• 2001 Howard Street Tunnel fire
• 2007 Brooks derailment
• 2011 Mineral Springs, North Carolina, train wreck-fire involving 2 (Union Pacific) units and its train of fuel tankers at the back, 2 killed[28]
• 2012 Ellicott City, Maryland, train derailment, two killed
• 2013 Spuyten Duyvil derailment
• 2014 Midnight Rider train incident[29][30]
• 2015 Mount Carbon train derailment
• 2015 Tennessee train derailment
• 2017 Biloxi collision with tour bus stuck on tracks; 4 killed, 44 injured[31]
• 2017 Pittsburgh suburb coal cars derailment[32]
• 2017 Hyndman derailment, chemical release and fire[33]
• 2017 Atlanta derailment destroys occupied home[34]
• 2018 Cayce, South Carolina, train collision involving Amtrak Silver Star and a CSX autorack train (Q210-03). 2 dead, 116 injured.
• 2018 Worcester, Massachusetts, derailment – On July 21, 2018, a CSX Intermodal train from Worcester, Massachusetts, hits a low overpass, causing 12 cars to derail. One car nearly crashed into a car full of toxic chemicals, engineer injured.[35]
• 2021 Barnsley, Kentucky, tornado – On December 10, 2021, a tornado struck and derailed a CSX train, throwing several cars uphill, including one that landed on a house.[36]
Prof Wolff has informed me that he will be posting shortly to allay fears regarding his health.
ReplyDeleteGreat news!!
ReplyDeleteThanks, Marc.
Railway accidents were common in the 19th century and a locus for labor actions. One of the early workman's comp cases was an 1840s Massachusetts case over assumption of risk - basically tough luck for the worker.
ReplyDeleteI wouldn't fault the Constitution here, rather the 1970s neoliberal heel turn and the adoption of a Borkian view on anti-trust enforcement in the 1980s set us up for our current problems.
This is another with problem with putting the focus on the top job and discounting inertia. Trump did a lot of damage but the persistence of what he called "the swamp" was what was behind the October 2020 Schedule F executive order that would have reshaped the federal bureaucracy had Trump been reelected.
Figure Rooseveltian majorities (plus a Perkins and an Eleanor) to do really transformative legislation and maybe three consecutive terms to really change the bureaucracy.