December 31,2018
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Rags and Bones

Inequality before the law

A Federalist Society type recently proposed that litigants in federal court not be entitled to discovery unless the amount in controvery exceeds a half million dollars.

This proposal could be enacted by Congress for federal courts only--blue states like NY would never enact an equivalent. Of course, a Democratic house would prevent such a radical proposal from passing Congress anyway.

Today, to get into federal court on a so-called diversity claim--where the parties are from different states--the amount demanded has to exceed $75,000. The simplest thing would be to up this amount to $500,000.

This would be constitutional--in my opinion, diversity jurisdiction is unneeded and protects no constitutional rights (the Framers created it because they thought a New Jersey resident could not get a fair trial in NY).

However, a law that wealthy and poor can go to federal court but only wealthy can have discovery, would arguably fail 14th amendment equal protection standards. It certainly raises constitutional issues if the bar on discovery in small cases applied not only to diversity but to federal jurisdiction matters--if you could no longer have discovery in a civil rights or liberties case unless you also had a $500k claim as well.

A side effect of either provision would be simply to send more garden variety litigations, that could have taken advantage of diversity, to state court. We are in the early days of a trend to bring more constitutional matters in state court. You can litigate all constitutional rights (1st, 4th, 5th, 6th, 14th amendment) in state courts as it is. The NY constitution in some matters provides even greater protection than the federal. And litigators losing at trial may rather appeal the loss to the liberal New York Court of Appeals than to the new Supreme Court.

One final thing to consider here are that the trial lawyers are a powerful lobby who have defeated attempts to interfere with their livelihood before.

Government shut down

Holding government employees hostage to obtain legislation is grossly immoral no matter who does it, but President Trump forcing a shutdown is actually holding a gun to the heads of people who work for him. Nothing in his background, however, suggests he would have a problem with that. I am sure some of the people who now are not collecting a paycheck voted for him. He even said the other day that people have thanked him for taking away their means of survival, but I chalk that up as a typical Trump lie.

NRA and the legally armed black male

While ACLU as of Skokie officially proved that it would defend any speech, the NRA has always had a hidden subtext, that it was in the business of defending the rights of white people to own guns. When the cops shoot a licensed black gun holder in his car who was trying to give them his weapon, or a security guard returning a mass shooter's fire, the NRA is strangely silent. Just as they never said a word about Fred Hampton, killed by the police for a legally owned shotgun.

Khashoggi and the "dial tone"

In my Mad Manuscript on the idea of free speech, I have adopted the metaphor that the human "dial tone" is bodies in heaps, and that parrhesia, frank speech, interrupts the dial tone. The murder of Jamal Khashoggi inside the Saudi embassy in Turkey, and Donald Trump's easy forgiveness, shows that we are again sinking down to a level at which murder is normal, normative, just the way we play.

Israeli spy software

It seems an Israeli spy software product licensed to the Saudius allowed them to track Khashoggi. This product both signals Israeli amorality (read Ronen Bergman's Rise and Kill First for much more on this) and that of late Capitalism, murder as product.

Pushy apps

Somewhat apropos, I was on the phone with a service tech setting up a new phone for my wife when a really offensive dialog box kept popping up on the screen, asking me to instal an app I had never heard of. The tech helped me remove it, and as it died, it was still popping up mournful dialogs. "That's spyware installed by the manufacturer," the tech said.

Fake nature

I am noting a new trend in advertising, phony presentations of nature for people who have never seen it, for example the car ad in which a blind man takes the telegenic young couple on a mountain trail "not on any map", to hear whale songs from the mountaintop(!). Another SUV ad shows a tough young mother being a role model for her child by vandalizing a forest for a Christmas tree, instead of buying one specially grown for the purpose from a tree farm. Any car ad which shows "nature lovers" driving their vehicles on hiking trails is gross. I go into the woods to get away from vehicle noise and exhaust. An energy company boasts it is generating power from algae, with no concept communicated that algae blooms result from an excess of human waste or fertilizer in the water.

Repeated without comment

A nurse who carries naloxone in her purse to save the lives of people who overdose on opiates, was denied health insurance by companies which thought she possibly carried it for herself.