The comments on this blog have been rather interesting lately and I think I should explain why I have not been responding. This is a strange and rather difficult time for me. I watch the news virtually all day long, stunned by the cruelty and ugliness of so much that I see in the world. Speaking only of what is happening within the United States, I am appalled by the daily accounts of pointless shootings, by the vicious attacks on trans children and adults, by the assault on knowledge, fact, and truth. I give my little bits of money here and there, well aware that in a country this size their effect will be so small as to be unnoticeable.
Meanwhile, I struggle with the worsening of my Parkinson’s disease. My freezing and stumbling has now become so severe that I use my little three wheeled roller everywhere, both inside the apartment and out. When I go to the nearby supermarket to shop, I park next to the place where used carts collect. Leaving my roller in the car, I use the cart to support me as I go into the store and collect up the items on my list. Then I go back to the car, put the bags of groceries in the trunk, and drive home. When I park outside the building in which I live, I use my roller to carry the bags upstairs. I am painfully aware that one wrong step can produce a fall which could be painful or even, if it is serious enough, life altering.
But my mind is clear and I respond eagerly to invitations to appear by zoom in college classes or even, when possible, to give lectures by zoom.
There are good moments, of course, when Supreme Court justices are revealed to be cheap grifters or when Trump, during a deposition, misidentifies as his wife a picture of the woman whom he raped and who he says is “not his type.”
But taking all and all, this is a difficult time and I apologize that I have been less responsive than I ought to have been to your comments.
It is very painful to read about the physical ordeal you are experiencing. I am sure that I speak for everyone who reads your blog, you have our sincere and heartfelt concern. No apology is necessary. We are all very fond of you.
I was not aware that Trump identified the plaintiff as his wife during a deposition. That shows, with all your difficulties, that you are more on top of things than many of us younger than you.
One especially bizarre aspect of Trump's misidentification of E. Jean Carroll as his ex-wife, Marla Maples, is that he did it when confronted with a photograph of a group that includes his wife at the time, Ivana Trump! So, he thought that "Marla" and Ivana would appear in the same photograph.
Terribly sorry and moved to hear about what you are going through.
I woke up this morning with a pain in my shoulder and I've been feeling sorry for myself all day until I read what you wrote above and that made me see how exaggerated my self pity is.
As Marc says, no apology is necessary.
I can relate to your problem with the news and with the pain of old age. My solution has been to pay as little attention to it as I possibly can. I scan the Washington Post front page, then go to the sports section. I read a few of the columns—particularly Eugene Robinson and E.J. Dionne. That’s usually about it. I haven’t watched any TV for the past couple of weeks. It takes up too much time and it’s too depressing—and I can’t do anything about it.
I am the primary care person for my wife, and that and reading fills up most of my days. I’ve been devouring books since the pandemic hit and a enjoying the feast. I’ve long been one who bought books that I wanted to read, but never had the time to read. Now that I do have time, that’s what I’m doing. Since the pandemic began I’ve read or re-read Herodotus, Thucycdides, Gibbon’s Decline and Fall of the Roman Empire, Braudel’s Memory and the Mediterranean, a lot of plays (Aeshylus, Shakespeare, Stoppard), a number of works on the American Revolution, Beowulf, Banville and on and on. Right now I’m reading Harold Nicolson’s Peacemaking 1919 and Emmanuel Le Roy Ladurie’s Montaillou. I participate in a monthly history reading group, and participate via Zoom several times a year in reading groups at a local bookstore.
I am enjoying it immensely and recommend it highly, especially Gibbon. No one reads Gibbon any more for the history—he’s been superseded by later scholarship. But his prose is a delight. Here are three of my favorite snippets:
“The various modes of worship, which prevailed in the Roman world, were all considered by the people, as equally true; by the philosopher, as equally false; and by the magistrate, as equally useful.”
“Besieging Rome by land and water, he thrice entered the gates as a barbarian conqueror; profaned the altars, violated the virgins, pillaged the merchants, performed his devotions at St. Peter’s, and left a garrison at the castle of St. Angelo.”
“The dominion of priests is most odious to a liberal spirit.”
Turn off the TV and pick up a book.
Somewhat along the lines of David Palmeter's comment on Gibbon, I'd like to commend the thought that no one would wish to die without having first read Boswell's Life of Johnson. I read it while recovering from surgery a decade ago, and it made that period one of the high points of my life. And I recently read Walter Jackson Bate's biography of Johnson, which is not only by far the greatest biography I've ever read, but really one of the great pieces of world literature. You haven't lived until you've lived with Johnson. To mis-quote Mr. Palmeter, "Turn off the TV and pick up your Johnson."
I'm truly sorry to read about your difficulties, Prof. Wolff. At the Parkinson's exercise class my loved one attends, Rock Steady Boxing (there seem to be locations all over), the group makes a point to practice safe falling. I dread the thought but am simultaneously grateful that the practice may prove helpful to us some day.
I don't suppose it's nearly as helpful as practicing, but there's a short written overview with some basic pointers here. (Unfortunately I didn't find it completely clear, but it's surprisingly hard to find material online dealing with fall technique rather than simply prevention.)
Professor Wolff, I read your remarks, and the thought of you climbing upstairs with groceries sent of alarm bells. The store I shop at has home deliveries. I should think it's very possible that you have that feature also. As for your remarks about the insanity of life in American society and its violent and cruel realities, are truly depressing.
Charles L.'s suggestion is an excellent idea. I know several couples who do not do their own grocery sopping. They call in their grocery requests and the groceries are delivered to their home for free. All it costs is a to the grocery deliverer. I am sure there must be a grocery store near you who provides this service.
As I recall, Professor Wolff had the groceries delivered during the pandemia.
I'd guess that he wants to do his own shopping as long as he can.
I too am afraid of falling and a friend wonders why I still use the subway to get around (I don't drive) when I can afford to use Uber or take a taxi, given that people push and shove in the subway very aggressively and I could fall there. As a matter of fact, a mob of people pushing to get out the subway door knocked me over a few years ago.
My reply is that I want to live a normal life as long as I can and that part of a normal life for me is taking public transportation and participating in urban life with all its evident disadvantages.
Apropos of the discussion we had in the prior thread regarding religion, my wife and I went to see the movie, “Are Your There God, It’s Me, Margaret,” based on the book by Judy Blume. Margaret’s mother is Christian, and her father is Jewish. One of the sub-plots, which revolve around the difficulties encountered by adolescent girls, involves Margaret’s efforts to learn about different religions and whether she is comfortable with any of them. It is a very good movie, on several levels.
Yesterday, eight more people, going about their business at a shopping mall in Allen, Texas, were murdered by a gunman wielding an AR-15 assault rifle. We cannot wait for Congress, or the Texas legislature, to act and ban the manufacture or sale of AR-15 and other assault weapons. The Republicans will prevent any such legislation from being enacted. The estates of the deceased, thru their relatives, and the injured victims, have to sue the manufacturers of these weapons and argue (1) that the statute which immunizes these gun manufacturers from being sued, even in state courts, the Protection of Lawful Commerce in Arms Act (PLCAA), 15 U.S.C. §§ 7901-7903, is unconstitutional because it violates both the 5th and 14th Amendments because by enacting the statute, government is not protecting the life and liberty of American citizens, but is actually aiding and abetting the deprivation of those rights; and (2) that these weapons have no legitimate hunting or self-protection purpose under the 2nd Amendment, are not protected under the Heller decision, and that by manufacturing and advertising assault weapons, whose only purpose is to kill large numbers of people rapidly, for purchase by the public, they are being grossly negligent and endangering the lives of American citizens.
If enough such lawsuits are filed, the manufacturers will be bankrupted and forced out of business. If nothing is done, these mass shootings, and massacres, will continue week after week, year after year, and none of us who live in the United States will be safe. We risk being shot and killed by a crazed gunman with a gripe against society every time we leave our homes to go shopping, to go to a sporting event, to go to work, or just going outside for an enjoyable walk.
Some of you may be thinking, “Great theory Marc, but what are you going to do about it?”
Morgan & Morgan is the largest personal injury law firm in the United States. They had law offices in every state. I have Googled their name and located their office in Texas. I am going to email my legal analysis to them, and urge them to sign up as many families of the deceased from yesterday’s massacre, and victims who survived the shooting, and sue the manufacturer of the weapon which killed and injured them under Texas law, for gross negligence in selling that weapon to whoever sold it to the gunman.
It's a good idea to sue the manufacturers of weapons used in mass killings.
However, in Chile there is strict gun control, but people who want them, get guns anyway, even assault rifles. There is a huge international black market for lethal weapons and if they are no longer manufacturered in the U.S., some other country will begin to produce them and make them available in the legitimate and black market.
It's like drugs. You can declare a war on drugs, but Mexico will export them to the U.S., as long as there is a demand.
Thus, at some point you have to address the very real sociological and mental health issues which lead young men (almost always men) with "a gripe against society" (your phrase) to kill people at random and generally end up dead in the act themselves.
I have done a quick check on Texas case law to determine if Texas recognizes a legal theory whose application could be invoked in order to find the manufacturers of assault weapons liable under Texas law. I believe there is. In American Tobacco Co. Inc. v. Grinnell, 951 S.W.2d 420 (Tex. 1997), the plaintiff’s estate sued the manufacturer of the cigarettes the plaintiff had smoked since the age of 19, which caused the cancer which killed him. The estate sued under several theories: failure to warn; design defect; and manufacturing defect. The trial court granted the defendant summary judgment (dismissal) under all three theories. The Texas S. Ct. reversed on only the failure to warn theory, holding that the manufacturer’s warning failed to warn of the addictive tendency of cigarette smoking. But a failure to warn theory would not work in the case of assault weapons, because warning the purchaser of the dangers of an assault weapon killing many innocent people would not deter a purchaser from purchasing an assault weapon. That is precisely why a crazed gunman would purchase such a weapon.
The Texas S. Ct. affirmed the dismissal based on the design defect theory. The Court stated the following regarding a design defect theory:
“The duty to design a safe product is ‘an obligation imposed by law.’ … Whether a seller has breached this duty, that is, whether a product is unreasonably dangerous, is a question of fact for the jury. … In determining whether a product is defectively designed, the jury must conclude that the product is unreasonably dangerous as designed, taking into consideration the utility of the product and the risk involved in its use. …
“[W]e [have held] that evidence of the following factors of risk and utility were admissible in design defect cases: (1) the utility of the product to the user and to the public as a whole weighed against the gravity and likelihood of injury from its use; 92) the availability of a substitute product which would meet the same need and not be unsafe or unreasonably expensive; (3) the manufacturer’s ability to eliminate the unsafe character of the product without seriously impairing its usefulness or significantly increasing its costs; (4) the user’s anticipated awareness of the dangers inherent in the product and their avoidability because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions; and (5) the expectations of the ordinary consumer.” (Citations omitted)
In the case of cigarettes, the Court ruled that the plaintiff admitted that there was no suitable substitute which would not cause cancer, because their own expert admitted as much. But is this true of assault weapons? No, it is not. Consider the 5 factors identified above. (1) Note, unlike the failure to warn theory, which focuses only on the failure to warn the purchaser, the design defect theory includes “the utility of the product to … the public as a whole weighed against the gravity and likelihood of injury from its use.” Assault weapons clearly satisfy this consideration – the gravity of the harm to the public by the use of assault weapons is being demonstrated by every mass killing in which they are used. (2) Is there a substitute which would meet the same need, but not be unsafe or unreasonably expensive? Well, what is the need of an assault weapon? If its is self-defense, a weapon which did not automatically, or semi-automatically, fire repeatedly, rapidly, could suffice to meet that need in ordinary life. There are few instances in which an American citizen, in ordinary life, needs to be able to kill multiple numbers of people in rapid succession. (3) The cost of manufacturing a weapon which fires one bullet at a time is significantly less than the cost of manufacturing an assault weapon, and a single shot weapon provides adequate protection for the ordinary use it would be needed for. (4) General public knowledge of the dangers of assault weapons is obvious, particularly given the proliferation of mass killings in which assault weapons have been used. (5) The ordinary consumer expects not to be shot and killed while shopping at a mall, or going to a grocery store, or sending their children to school.
I would urge any attorney who is reading this and is licensed to practice law in Texas, to solicit clients among the dead and injured from the Allen mall shooting victims and use my theory against the manufacturer of the AR15 which was used in that shooting. I will be contacting Morgan & Morgan on my own to do the same.
Addressing s. wallerstein’s points:
It is easier to identify where assault weapons have been manufactured, even if manufactured outside the U.S., then to identify the source of illegal drugs. Even foreign manufacturers of assault weapons can be found and sued. Regarding addressing the mental health issue, it cannot be done adequately to prevent future mass killings – how can you determine in advance which individual with a mental health issue may decide to commit a mass killing? It is not possible, and therefore not a solution.
No, you're not going to just treat future mass shooters.
The idea is that a society where someone begins to kill others at random is producing very "sick" individuals and that the mental and spiritual health of the whole society has to be dealt with, without cost.
That level of anomie and social malaise is very Amerikan, nowhere else in the world are there so many random mass shootings, even though some societies have higher homicidal rates due to gang violence.
You have diagnosed the malady, but you have not offered a feasible solution. Litigation can force the assault weapons manufacturers out of business. No litigation is going to force Congress or any state legislature to provide free mental health treatment.
It's not a question of litigation, it's a question of well-intended progressive people waking up to the fact that there is a mental and spiritual health crisis and that they have to vote for candidates who favor dealing with it through widespread treatment programs and changing social conditions which produce anomie and spiritual malaise.
It's a long hard road, but you have to take the first step or you'll have more massacres and more Trumps, because Trump is a product of the same malaise.
The societal change you are proposing would take over a century. Litigation, as difficult as it is, will be quicker.
I think what Marc suggests makes a great deal of sense. Its concrete and pragmatic. I sincerely hope that Morgan and Morgan take up Marc Susselman's compelling idea, which he emailed them. Keep us informed Marc.
Marc, have you considered that in all states who becomes a judge is part of the political process - appointed, elected, etc? As your recent experience demonstrates, the best argument doesn't always prevail. Firearms are a political question and litigation will never take the politics out of politics. If, as I suspect, lawsuits in most, if not all states fail, what is to prevent repeated suits (and the lawyers filing them) from being considered vexatious? How would going after the industry as a whole through suing individual manufacturers not result in the industry adopting a collective defense?
BTW, there is no relationship between action and cost. E.g. high end single shots are a whole number multiple of low end semi=autos. Ditto for lever and bolt actions.
We solved this problem politically in 1934 and the present situation is a political matter which has to be solved politically. For that matter the courts are a political problem that require a political solution - e.g. the Supremes and North Carolina. If Oz can do it, the U.S. can.
We are never going to get Congress, or the legislatures of any of the Red states, to pass a ban on assault weapons.
Regarding litigation, the lawsuit would not necessarily have to be filed in Texas state court. It could be filed in federal court in Texas under what is called "diversity jurisdiction" which allows a citizen of one state to sue a citizen of another state. The manufacturer of the AR-a5 which was used yesterday likely has its home office in a state other than Texas. The Texas federal court would be required to apply Texas case law to the lawsuit, including the Grinnell case I cited above. Are there corrupt judges, even federal judges. Yes. But not all judges are corrupt, and we will not know unless the effort is made.
Will it be easy. No. Will the arms industry fight like hell. Of course. But unless such action is taken, we will continue to have to live with the threat of being shot and killed, or serious mimaed, by a sociopath whenever we venture outside of our homes.
"We are never going to get Congress, or the legislatures of any of the Red states, to pass a ban on assault weapons."
No one in 1931 imagined that within four years we would have Social Security and unemployment insurance, the Wagner Act, rural electrification, etc. Oh, and the National Firearms Act. When orders collapse, it happens all at once.
Being from Michigan I would expect you to understand that political change can happen. Republicans were a thing in California until they weren't and it happened fast.
The only case I'm aware of is the Remington settlement. Remington was owned by private equity and on its way out so there isn't much here. As a settle we have no idea how the case would have worked out had it been litigated. The tobacco cases happened under a different dispensation. Cases like 303 and Danco demonstrate that the right will seek to federalize where they see an advantage.
In 2016 folks like moi were reviled by centrists and tankies alike for mentioning the courts - precedent and all that. How did that work out?
If a suit was filed in a district court (outside of Amarillo,of course) and was successful, wouldn't the Fifth Circuit be the next step then the SC - good luck with that.
There's no way out of a political solution as there's no way the Right and the gin lobby will go quietly because of a few lower court decisions.
It is my experience that legislators are more easily corrupted, both financially and by power dispensing, than are judges. In any case, it does not hurt to have a backup plan involving litigation. As they say at the race track, don’t place all of your bets on one horse.
Moreover, I do not allow myself to be discouraged by naysayers when it comes to the legal system. If the naysayers had their way, we would not have a Bill of Rights. If the naysayers had their way, we would not have had desegregation of the public schools. If the naysayers had their way, we would not have constitutionally protected same-sex marriage. And if the naysayers had their way, we would not have pornography upon demand available on the internet.
Roe v. Wade was challenged multiple times without the challenges being considered vexatious. A strategy of multiple challenges in multiple jurisdictions is what the anti-Roe folks did, and to a lesser extent, is what Thurgood Marshall and the NAACP did before Brown. The Civil Rights Act came later.
It certainly seems legally possible to get the assault rifle banned. We were able to do so for 10 years and the NRA, so far as I know, never risked a challenge. IIRC, even Scalia, in the Heller case, said that a ban on the M-16 would not violate the 2nd Amendment. The AR-15 and its siblings are nothing but the successor to the M-16.
Here’s a link to a photo of what happened to some of the people in Texas. It’s a graphic photo, so if you’re particularly sensitive, don’t open it.
"If enough such lawsuits are filed, the manufacturers will be bankrupted and forced out of business."
DP, I'm assuming the initial suits will fail. "Enough" leads to assumptions on my part but is dependent on persistence. The various abortion cases were filed against government entities and had varying results depending on what was being challenged. The NAACP LDF's strategy was brilliant, the Civil Rights laws captured a highly contingent moment and we are currently dealing with the blowback.
Marc, absent a political solution the naysayers may still have the last word (recall Thomas' concurrence in Dobbs). I just saw a way too volkish ad for DeSantis. The shootings are only part of the problem.
The ten year ban was dumb. All it did was provide the NRA, etc. with an organizing tool and was a factor in the disastrous 1994 midterms. What challenges there were were all pre-Heller/pre-McDonald/pre-Bruen (and pre-Alito/Roberts, etc). Feinstein's generation assumed the Dems would always be in the majority.
Post Heller, McDonald and Bruen I'd not count on bans holding at either the state or national level (the Second amendment is now incorporated). BTW, M-16/M-4s are full auto weapons and covered by 26 USC 5811. The AR-15 platform is semi-auto. Back in the day Colt produced the civilian version without the military version's selector switch. There are currently a number of cases in the pipeline including state assault weapon bans that were remanded post Bruen. Incorporating semi-autos into 26 USC may be the best bet.
(The transfer tax is still 1934s $200 which effectively doubled the cost of a Thompson SMG back then. Adjusted for inflation it would be $4,500 today.)
What does "DP" stand for? Dependent on persistence? Dumb point?
The $200 transfer tax is not being adjusted for inflation. It is still $200, and a $200 transfer tax is not going to stop anyone who wants an AR-15 bad enough from paying the tax to obtain one.
You may be right about a political solution. If it happens, Hallelujah. But, as I said, why put all your bets on one horse? Sue the f...k out of them!
Last night, a friend and I saw the movie “Sisu,” a Finnish word which means something like “true grit” and “indomitable courage” combined. If you are looking for a great revenge movie as catharsis for pent up aggression, this is it. Be warned, however – it is very, very violent. Even Finnish women who have been sexually abused by Nazi soldiers do their part. If you want to get a taste, watch the trailer.
You have, now and again, quoted Wordsworth: "Bliss it was in that dawn to be alive. But to be young was very heaven."
I would like to think that Wordsworth concept of "young" was not one entirely determined by age or health but by the very audacity of creating a new dawn.
By that measure, the activities that permit you to write and to teach are the activities that spawn a particular kind of youth, one that gives rise to that new dawn, and one that remains still a very heaven.
"Bliss was it in that dawn to be alive,
But to be young was very heaven!"
"That dawn" of course refers to the French Revolution, and "young" I think means chronological age. Which is not to say you can't put whatever spin on the poem you want.
LFC - thanks for the context
I suppose one could think of the French Revolution, despite its negatives, as on going, a paradigmatic revolution. So in that sense Wordsworth's dawn could be a kind of evergreen.
Marc, DP = David who is just north of my comment.
I understand the transfer tax isn't adjusted for inflation. My point is that is was initially set at a point that was significant in order to discourage firearm ownership and should be adjusted for inflaion. Semi-auto rifles go for ~$500 - $2,500. A $4,500 stamp would kill that market. Even at $200 placing semi-auto center-fire rifles under the same process as machine guns would kill the market. Here is the form:
Photo, fingerprints, background checks, local law enforcement notification, need to use a type 3 licensee for the physical transfer, current ~300 day backlog for approval and issuance which would only only get worse - all market killers.
One problem is the current SC would probably find a way to overrule Miller so we are back to a political solution. Given Heller, McDonald, and Bruen, no ban is going to survive this Court. Perhaps jurisdiction stripping would work (Article III, sec. 2) but a Congress capable of that could probably do some serious judicial reform - expand the districts, expand and rejiggle the Circuits, 15 - 18 Supremes with 15 - 18 year term limits and mandatory rule of 80 (28 USC 371).
BTW, the situation with Senator Feinstein is serious and Durbin was a bad choice for Judiciary. Whitehouse would have been far better.
On another note, perhaps Prof. Wolff should consider an electric mobility scooter - they are game changers for those bad days. I've used Costco's a few times when my back was giving me trouble. I believe his unit has an elevator and there are rigs for carrying on automobiles.
Professor Wolff, I am very sorry to read about your sufferings in your daily life
Your sufferings, like the sufferings of a loved one, are also mine
A warm greeting
Dear professor, I think that in any case we still have the possibility of reading books on the subjects that interest us, poetry, listening to good music,... for example Handel's "Semele and Zeus", etc.
The Italian poet Giacomo Leopardi in the last years of his life had also lost his sight and could not even read his beloved books; his only consolation were his friends who read passages from his books or transcribed the poems he dictated. Hence the importance and need to have good friends
Then I remembered the beautiful film "The Intouchables" of 2011 with Francois Cluzet and Omar Sy which describes the hard life of a handicapped person, and above all the comment of a spectator:
“all the riches of the world become useless while the riches of the heart and of the mind take on an inestimable value; through the interaction between the two characters, the film tries to express the real needs of people: the need for respect, understanding, acceptance and love”
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