STAY TUNED

 My son, Tobias, who is a professor of law and an expert on civil procedure posted this comment on Facebook today.

A note about the impact of E. Jean. Carroll's victory going forward: If the Orange Monster defames E. Jean again in the way he has in the past, she and her lawyers can file another lawsuit and use the judgment in her earlier verdict to immediately seek damages against him through the doctrine of preclusion. It is important to take a moment to think about the practical implications of that fact.

First some basics on Civil Procedure. In U.S. courts, when a person prevails in a civil case and obtains a judgment, that judgment does not merely constitute a victory on their claims. It also constitutes a determination that binds the parties to the lawsuit on all the issues that were actually litigated and decided in the proceeding and wound up being necessary to the judgment. Going forward, if the exact same issue comes up again then the person who lost on that issue in the first proceeding can be bound to the determination of that issue in any subsequent proceeding. This is the doctrine of issue preclusion. (There are some exceptions to that doctrine but none would apply here.)

Here's what that means in practical terms. The Orange Monster is running for President. He will be asked about E. Jean Carroll and her successful verdict, and even without being asked he will no doubt feel the compulsion to hold forth about her. He can still try to deny that he sexually assaulted her and claim that the jury decision was wrong; that's fine. But if he demeans E. Jean Carroll in the way that the jury found to be defamatory -- calling her a liar and saying her story is a hoax that she made up to increase book sales -- then Carroll and her lawyers can go straight to court, file another lawsuit, and seek additional defamation damages against him without having to prove her case all over again. All they will have to show is that whatever he said raises the same issue of defamation that the jury already adjudicated in the first lawsuit and they should be entitled to summary judgment in their favor. They would only have to prove damages. All of this is true even though the Orange Monster and his lawyer are appealing the judgment. Preclusion attaches when final judgment is entered at the trial court level.

This means that the Orange Monster will have to give mealy-mouthed answers to questions about E. Jean Carroll when he is asked about the verdict by the media or in debates (and he will presumably be asked all the time) and he will have to restrain his impulse to keep calling Carroll a hoax, a liar and a gold-digger in front of adoring crowds in the ways that worked so well for him before. If he cannot manage to do those things -- consistently -- then he will be slapped with a second lawsuit on a fast-track to force him to pay more damages for defamation.

I do not think he will be able to show that kind of discipline. We are going to see round two.

A GOOD DAY

You have to hand it to the American legal system. Trump is found liable and George Santos is indicted, all in one day.  You can't ask for more. Just a brief note about why the jury did not find Trump liable for rape. Apparently, in her testimony, E Jean Caroll said that she felt Trump penetrate her with his fingers and then she thought he pushed his penis into her, but she could not be sure because she could not see what was happening. I think that explains the otherwise puzzling nature of the decision, which was reached by the jury in an astonishingly short period of time.

VAMPING TIL READY

I feel myself to be very much in a holding pattern with regard to the events taking place in the larger world. I wait for jury deliberations to begin in the E. Jean Caroll case, I wait for the inevitable indictments in Fulton County, Georgia, I wait for the next revelation of Supreme Court corruption. At night, I lie in bed rehearsing extended speeches about “tactical nukes” and “the immigration problem,” on both of which topics I have somewhat unusual views. I rehearse my formal analysis of the central argument in John Rawls’s A Theory of Justice.

 

Yesterday I had a lovely email from a young man in India who is studying philosophy at a University there. He had watched my YouTube lectures on Ideological Critique and The Thought of Karl Marx and wanted to let me know what he was studying now.  I confess I am old enough to be astonished by the reach of the Internet.

 

It has been obvious for a while that we desperately need to enlarge the Supreme Court, but there seemed to be absolutely no taste for this move in the White House or in the Senate Democratic leadership. Then the revelations began to appear of corruption and questionable actions not only by Clarence Thomas but also by Neil Gorsuch and the Chief Justice. It is just barely possible that that may open the way to Supreme Court reform.

 

I thank all of you for your kind comments about my rather self-indulgent remarks concerning my physical problems. I have lived for much longer than I had any right to expect, and my problems, while debilitating, are not at all painful. I have matched the donations you have alerted me to 2 to 1, and if I do not hear from any more of you in the next few days I will simply send the rest of my $2000 to the DLCC.

AN APOLOGY

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.

 

A QUESTION

I have been following the civil suit brought by E. Jean Carroll against Trump, but I cannot find out how much she is suing him for. Does anybody know?

SAD NEWS

Jerry Brown, in the midst of the chatter on this blog your news about the passing of your sister came as a terrible reminder of the real world. I am so sorry to hear of it.

YOU DO WHAT YOU CAN DO

As my Parkinson's progresses, I find it harder and harder to walk without stumbling and freezing.  But my mind, such as it is, is clear. I have enjoyed appearing via zoom here and abroad in classes and such, and I hope other opportunities present themselves. It is very odd to be so old and so comfortably fixed financially and so safe in my continuing care retirement community and simultaneously so appalled and frightened by what is happening in the world around me.