Category: reason

Art Lien Is Retiring

I learned from Mark Walsh’s column at SCOTUSBlog that Art Lien, the veteran Supreme Court artist, will retire at the end of this term.

[Art Lien] is entering his last few months of arguments before himself retiring at the end of the term. He first started sketching Supreme Court arguments in the 1977-78 term, when Regents of the University of California v.  Bakke, an affirmative-action case, was decided. I would like to prevail on him to go one more term and have some symmetry by sketching the Harvard and University of North Carolina affirmative-action cases, but it seems that his mind is made up. And unlike Breyer, Lien has not conditioned his retirement date on the confirmation of a successor.

Art provides such a valuable function. Even with the audio live-streamed, we still have no visuals from inside the chamber. How else will we know if the Justices are wearing masks? And today, for reasons unknown, there was a fire extinguisher to the left of the bench. Why? Who knows. But Art drew it.

Mark Walsh had a comment that was just *fire emoji* (Reason.com blocks the inclusion of emoji in posts).

As we wait for the session to begin, the always astute Art Lien notices an object in the courtroom that is not usually there, at least not in so prominent a position. A fire extinguisher is resting on the floor just below and to the left of the bench. Perhaps the court has concluded that certain podcasters are in need of more fodder for their metaphors about the status of the court. Lien has, of course, quickly drawn a sketch of the fire extinguisher

We will miss you, Art.

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Art Lien Is Retiring

I learned from Mark Walsh’s column at SCOTUSBlog that Art Lien, the veteran Supreme Court artist, will retire at the end of this term.

[Art Lien] is entering his last few months of arguments before himself retiring at the end of the term. He first started sketching Supreme Court arguments in the 1977-78 term, when Regents of the University of California v.  Bakke, an affirmative-action case, was decided. I would like to prevail on him to go one more term and have some symmetry by sketching the Harvard and University of North Carolina affirmative-action cases, but it seems that his mind is made up. And unlike Breyer, Lien has not conditioned his retirement date on the confirmation of a successor.

Art provides such a valuable function. Even with the audio live-streamed, we still have no visuals from inside the chamber. How else will we know if the Justices are wearing masks? And today, for reasons unknown, there was a fire extinguisher to the left of the bench. Why? Who knows. But Art drew it.

Mark Walsh had a comment that was just *fire emoji* (Reason.com blocks the inclusion of emoji in posts).

As we wait for the session to begin, the always astute Art Lien notices an object in the courtroom that is not usually there, at least not in so prominent a position. A fire extinguisher is resting on the floor just below and to the left of the bench. Perhaps the court has concluded that certain podcasters are in need of more fodder for their metaphors about the status of the court. Lien has, of course, quickly drawn a sketch of the fire extinguisher

We will miss you, Art.

The post Art Lien Is Retiring appeared first on Reason.com.

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Libel Plaintiff Cites “Cancel Culture” in Seeking Protective Order for Identities of Witnesses

This is in the libel case I blogged about yesterday, Gogol v. White; here’s the plaintiff’s framing of the situation:

Defendant Malissa White published multiple tweets accusing Plaintiff Frank Gogol of making racially insensitive jokes, using racial slurs, and engaging in overtly racist conduct at a social function where others were present. Witnesses who attended this social function have expressed concerns that they will face retaliation if they participate in this lawsuit, including as a result of a “cancel culture” movement on the internet….

Multiple witnesses expressed reluctance to becoming involved in this lawsuit in any manner, having observed the devastating effect of Defendant’s statements on Plaintiff and fearing a similar retaliation by the Defendant, the internet community, and the comics community, generally… The comic book industry is a relatively small and close-knit profession, where an author’s reputation is paramount.  A stain on a comic book author’s reputation can have severe consequences on the author’s ability to work in the profession.  This is particularly true given the rapidity and ubiquity of disclosures over the internet, where “cancel culture” mindsets can result in the immediate ostracization and “cancellation” of a person.

Based on this,

Plaintiff requests that the Court enter the Los Angeles Superior Court’s Model Protective Order without modification….

  1. The Model Protective Order will allow third-party witnesses to designate their testimony and any documents they produce as Confidential, including their identities.
  1. The Model Protective Order will allow all parties and their counsel to review documents and testimony designated as Confidential.
  1. The Model Protective Order will allow any party to challenge a Confidentiality designation through a meet-and-confer process and then motion if necessary….

[T]he Model Protective Order will not entitle any party or witness to file any document (or portion thereof) under seal, and such party or witness will need to make an independent showing before the Court will seal any document….

(A “protective order,” as the motion suggests, would keep the defendant and defendant’s counsel from publicizing the names of the witnesses, but only until their testimony is used at trial or in a filing, such as a motion for summary judgment. To hide the names of witnesses at that point would require further court orders, such as sealing orders, and those would require a much greater showing.)

The plaintiff is claiming that this reflects the standard protective order used in California cases, but the standard order provides for confidentiality only for “information which is in the possession of a Designating Party who believes in good faith that such information is entitled to confidential treatment under applicable law.” And my sense (reinforced by most though not all of the California lawyer friends of mine I asked about this) is that the names of such witnesses are usually not viewed as “entitled to confidential treatment under applicable law,” and that such a request is quite unusual.

Plaintiff argues:

Protective orders can be used to shield the identity of a party or witness when there is a risk of embarrassment or retaliation. California courts have recognized that a party may proceed in litigation pseudonymously where their privacy rights are implicated, “particularly given the rapidity and ubiquity of disclosures over the World Wide Web.” Doe v. Superior Ct. (Cal. App. 2016). Among the factors that courts look to when deciding whether a party can proceed pseudonymously is when identification creates a risk of retaliatory physical or mental harm.

Similarly, California courts—particularly in criminal cases—have regularly entered protective orders shielding witnesses’ identities, even from the defendant and their counsel, to protect the witnesses from retaliation….

While good cause exists to enter the Model Protective Order, Defendant, by contrast, will not be prejudiced by a restriction on the disclosure of certain confidential information. Defendant will continue to have complete access to the protected information and be able to use these materials throughout these proceedings without limitation. Indeed, Defendant will likely benefit from the protective order which will equally apply to any confidential and personal information they may disclose through discovery.

Moreover, the Model Protective Order has provisions in place which seek to prevent blanket designations (e.g., designating an entire production as confidential). For instance, under the Model Protective Order, if a receiving party objects to a producing party’s designation of a document as confidential, the receiving party can alert the producing party of its objection. Thereafter, if the parties are unable to agree on the document’s designation, the producing party will then be required to file a motion to defend the confidential designation. In other words, Defendant will not be unduly burdened by Plaintiff’s or a third-party witness’s designation of certain materials as confidential because if they disagree with the designation, the designating party will need to file a motion to defend the designation in Court.

Is this enough for a protective order as to percipient witnesses in a normal civil case, where the concern about retaliation is that the witnesses may face public disapproval? I’d love to hear what experienced litigators have to say about this.

The post Libel Plaintiff Cites "Cancel Culture" in Seeking Protective Order for Identities of Witnesses appeared first on Reason.com.

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Libel Plaintiff Cites “Cancel Culture” in Seeking Protective Order for Identities of Witnesses

This is in the libel case I blogged about yesterday, Gogol v. White; here’s the plaintiff’s framing of the situation:

Defendant Malissa White published multiple tweets accusing Plaintiff Frank Gogol of making racially insensitive jokes, using racial slurs, and engaging in overtly racist conduct at a social function where others were present. Witnesses who attended this social function have expressed concerns that they will face retaliation if they participate in this lawsuit, including as a result of a “cancel culture” movement on the internet….

Multiple witnesses expressed reluctance to becoming involved in this lawsuit in any manner, having observed the devastating effect of Defendant’s statements on Plaintiff and fearing a similar retaliation by the Defendant, the internet community, and the comics community, generally… The comic book industry is a relatively small and close-knit profession, where an author’s reputation is paramount.  A stain on a comic book author’s reputation can have severe consequences on the author’s ability to work in the profession.  This is particularly true given the rapidity and ubiquity of disclosures over the internet, where “cancel culture” mindsets can result in the immediate ostracization and “cancellation” of a person.

Based on this,

Plaintiff requests that the Court enter the Los Angeles Superior Court’s Model Protective Order without modification….

  1. The Model Protective Order will allow third-party witnesses to designate their testimony and any documents they produce as Confidential, including their identities.
  1. The Model Protective Order will allow all parties and their counsel to review documents and testimony designated as Confidential.
  1. The Model Protective Order will allow any party to challenge a Confidentiality designation through a meet-and-confer process and then motion if necessary….

[T]he Model Protective Order will not entitle any party or witness to file any document (or portion thereof) under seal, and such party or witness will need to make an independent showing before the Court will seal any document….

(A “protective order,” as the motion suggests, would keep the defendant and defendant’s counsel from publicizing the names of the witnesses, but only until their testimony is used at trial or in a filing, such as a motion for summary judgment. To hide the names of witnesses at that point would require further court orders, such as sealing orders, and those would require a much greater showing.)

The plaintiff is claiming that this reflects the standard protective order used in California cases, but the standard order provides for confidentiality only for “information which is in the possession of a Designating Party who believes in good faith that such information is entitled to confidential treatment under applicable law.” And my sense (reinforced by most though not all of the California lawyer friends of mine I asked about this) is that the names of such witnesses are usually not viewed as “entitled to confidential treatment under applicable law,” and that such a request is quite unusual.

Plaintiff argues:

Protective orders can be used to shield the identity of a party or witness when there is a risk of embarrassment or retaliation. California courts have recognized that a party may proceed in litigation pseudonymously where their privacy rights are implicated, “particularly given the rapidity and ubiquity of disclosures over the World Wide Web.” Doe v. Superior Ct. (Cal. App. 2016). Among the factors that courts look to when deciding whether a party can proceed pseudonymously is when identification creates a risk of retaliatory physical or mental harm.

Similarly, California courts—particularly in criminal cases—have regularly entered protective orders shielding witnesses’ identities, even from the defendant and their counsel, to protect the witnesses from retaliation….

While good cause exists to enter the Model Protective Order, Defendant, by contrast, will not be prejudiced by a restriction on the disclosure of certain confidential information. Defendant will continue to have complete access to the protected information and be able to use these materials throughout these proceedings without limitation. Indeed, Defendant will likely benefit from the protective order which will equally apply to any confidential and personal information they may disclose through discovery.

Moreover, the Model Protective Order has provisions in place which seek to prevent blanket designations (e.g., designating an entire production as confidential). For instance, under the Model Protective Order, if a receiving party objects to a producing party’s designation of a document as confidential, the receiving party can alert the producing party of its objection. Thereafter, if the parties are unable to agree on the document’s designation, the producing party will then be required to file a motion to defend the confidential designation. In other words, Defendant will not be unduly burdened by Plaintiff’s or a third-party witness’s designation of certain materials as confidential because if they disagree with the designation, the designating party will need to file a motion to defend the designation in Court.

Is this enough for a protective order as to percipient witnesses in a normal civil case, where the concern about retaliation is that the witnesses may face public disapproval? I’d love to hear what experienced litigators have to say about this.

The post Libel Plaintiff Cites "Cancel Culture" in Seeking Protective Order for Identities of Witnesses appeared first on Reason.com.

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Justin Trudeau’s Crackdown Will Make Bitcoin and Cash More Popular


zumaamericasthirtythree026233

By invoking emergency powers and freezing the assets of Freedom Convoy protesters, Canadian Prime Minister Justin Trudeau makes clear that civil liberties protections mean little when the government can deny you access to your money. That financial weapon has been used in the past not just in autocracies but also in democracies against controversial (to some) businesses and organizations. But by targeting political protesters in a supposedly free country, Canada’s government reminds us of the importance of keeping at least some resources beyond the reach of the state.

“This is about following the money,” Canada’s Deputy Prime Minister Chrystia Freeland threatened on February 14. “This is about stopping the financing of these illegal blockades. We are today serving notice: if your truck is being used in these protests, your corporate accounts will be frozen. The insurance on your vehicle will be suspended.” The Canadian government promptly seized assets.

Justice Minister David Lametti added that donors to funds supporting the Freedom Convoy are also targets. The government subsequently backpedaled, but donors have been doxxed and threatened (Americans are likely beyond the reach of all but finger-wagging). Under the Emergencies Act, the Canadian government inflicts financial punishment on its critics without due process.

“It’s a Western version of China’s social credit system that does not altogether prohibit political dissent but makes it so costly that it becomes impractical to the ordinary citizen,” David Sacks, former PayPal COO, writes of Canada’s financial measures against protesters. Earlier, Sacks warned that we should expect a wave of firms denying services to those who don’t share their ideology. “What I could not have anticipated is that it would occur first in our mild-mannered neighbor to the north, with the Canadian government itself directing the reprisals,” he marveled.

Actually, this isn’t the first example of governments conscripting private companies against targets that otherwise enjoy legal protection. Credit card companies have been pressured into denying services to suspected sex workers, and the U.S. federal government’s Operation Choke Point cut off gun dealers, payday lenders, and sex-oriented businesses from banking without the muss or fuss of proving any illegality.

“The clandestine Operation Choke Point had more in common with a purge of ideological foes than a regulatory enforcement action,” Frank Keating, former governor of Oklahoma and previously an FBI agent and U.S. Attorney, wrote in 2018. “It targeted wide swaths of businesses with little regard for whether legal businesses were swept up and harmed.”

Since then, New York officials strong-armed insurance companies and banks into shunning the NRA. Cannabis businesses have difficulty opening bank accounts over regulatory fears. And independent ATMs are becoming scarce because the government hates that they dispense cash to just anybody. “A bank that does business with unscrupulous ATM owners could face the wrath of regulators for violating anti-money-laundering rules,” The Wall Street Journal reported this week.

But targeting remarkably peaceful political protesters because they annoy officials in an ostensibly liberal democracy is a new step in the direction of a financial police state. And a financial police state is an effective means for officialdom to muzzle opposition without breaking a sweat.

“Without economic freedom you cannot have political freedom,” writes economist John H. Cochrane of the Hoover Institution about the fiasco in Canada. “If the government can monitor your transactions, freeze your assets, ‘sanction’ you, or freeze your ability to transact, to buy or sell anything, it can quickly silence you, stop your political participation, undermine political movements or even aspiring individual politicians.”

Understandably, financial assets that aren’t so subject to government whim have become more attractive. Many Canadians reportedly withdrew cash from banks, either because they feared their accounts could be frozen, or were frightened by the prospect. Cash is anonymous and its use is immune to state intervention (so long as the government doesn’t emulate India by turning bills into toilet paper).

In addition, even former skeptics are now open to crypto such as bitcoin as a haven for assets.

“I still can’t believe that this is the protest that would prove every Bitcoin crank a prophet,” writes David Heinemeier Hansson, a partner in the tech company Basecamp. “And for me to have to slice a piece of humble pie, and admit that I was wrong on crypto’s fundamental necessity in Western democracies.”

But “Bitcoin is far from universally accepted at stores,” Andrea O’Sullivan warns at Reason. “The longer-term solution is to encourage more businesses to accept cryptocurrency so there is no need to bridge into government-controlled money at all.”

That may well happen. Seeing the writing on the wall, governments promote central bank digital currencies (CBDC) as alternatives to both cash and crypto. But they openly salivate over being able to monitor and restrict its use. “The Bank of England has called on ministers to decide whether a central bank digital currency should be ‘programmable’, ultimately giving the issuer control over how it is spent by the recipient,” The Telegraph reported last year.

Officials argue that controllable CBDCs could cut down on tax evasion and crime. But Canadian officials freezing protesters’ bank accounts emphasizes that there are worse things than underground economies. Independent crypto alongside cash could help people retain their financial freedom.

“Perhaps we want to have government able to deny financial services to criminal organizations (but think carefully about this before you agree),” economist Arnold Kling writes. “On the other hand, we do not want government to be able to deny financial services to people who hold dissenting views. The problem is that nowadays, especially with COVID and with cancel culture, we have become accustomed to criminalizing the expression of dissenting views.”

Sacks wants to prohibit financial institutions from denying services for political reasons. But that would be enforced by the same regulators who lean on banks and insurance companies to shun sex workers, gun dealers, and payday lenders. They’re supposed to transform into neutral arbiters because the law says so. In the real world, regulators will more likely use expanded power to hurt the enemies of whoever is currently in office in the name of curbing some imaginary threat to public order.

A better solution is preserving cash and continuing to develop crypto that protects privacy and bypasses intermediaries. Even the International Monetary Fund concedes that people seek “a defense against attempts by an all-encroaching ‘Big Brother’ surveillance state to rob people of their anonymity by forcing them to leave an electronic payment trail.” But it’s not just surveillance. The Canadian government’s excesses remind us that there’s no freedom if the state can separate us from our money.

The post Justin Trudeau's Crackdown Will Make Bitcoin and Cash More Popular appeared first on Reason.com.

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via IFTTT

Justin Trudeau’s Crackdown Will Make Bitcoin and Cash More Popular


zumaamericasthirtythree026233

By invoking emergency powers and freezing the assets of Freedom Convoy protesters, Canadian Prime Minister Justin Trudeau makes clear that civil liberties protections mean little when the government can deny you access to your money. That financial weapon has been used in the past not just in autocracies but also in democracies against controversial (to some) businesses and organizations. But by targeting political protesters in a supposedly free country, Canada’s government reminds us of the importance of keeping at least some resources beyond the reach of the state.

“This is about following the money,” Canada’s Deputy Prime Minister Chrystia Freeland threatened on February 14. “This is about stopping the financing of these illegal blockades. We are today serving notice: if your truck is being used in these protests, your corporate accounts will be frozen. The insurance on your vehicle will be suspended.” The Canadian government promptly seized assets.

Justice Minister David Lametti added that donors to funds supporting the Freedom Convoy are also targets. The government subsequently backpedaled, but donors have been doxxed and threatened (Americans are likely beyond the reach of all but finger-wagging). Under the Emergencies Act, the Canadian government inflicts financial punishment on its critics without due process.

“It’s a Western version of China’s social credit system that does not altogether prohibit political dissent but makes it so costly that it becomes impractical to the ordinary citizen,” David Sacks, former PayPal COO, writes of Canada’s financial measures against protesters. Earlier, Sacks warned that we should expect a wave of firms denying services to those who don’t share their ideology. “What I could not have anticipated is that it would occur first in our mild-mannered neighbor to the north, with the Canadian government itself directing the reprisals,” he marveled.

Actually, this isn’t the first example of governments conscripting private companies against targets that otherwise enjoy legal protection. Credit card companies have been pressured into denying services to suspected sex workers, and the U.S. federal government’s Operation Choke Point cut off gun dealers, payday lenders, and sex-oriented businesses from banking without the muss or fuss of proving any illegality.

“The clandestine Operation Choke Point had more in common with a purge of ideological foes than a regulatory enforcement action,” Frank Keating, former governor of Oklahoma and previously an FBI agent and U.S. Attorney, wrote in 2018. “It targeted wide swaths of businesses with little regard for whether legal businesses were swept up and harmed.”

Since then, New York officials strong-armed insurance companies and banks into shunning the NRA. Cannabis businesses have difficulty opening bank accounts over regulatory fears. And independent ATMs are becoming scarce because the government hates that they dispense cash to just anybody. “A bank that does business with unscrupulous ATM owners could face the wrath of regulators for violating anti-money-laundering rules,” The Wall Street Journal reported this week.

But targeting remarkably peaceful political protesters because they annoy officials in an ostensibly liberal democracy is a new step in the direction of a financial police state. And a financial police state is an effective means for officialdom to muzzle opposition without breaking a sweat.

“Without economic freedom you cannot have political freedom,” writes economist John H. Cochrane of the Hoover Institution about the fiasco in Canada. “If the government can monitor your transactions, freeze your assets, ‘sanction’ you, or freeze your ability to transact, to buy or sell anything, it can quickly silence you, stop your political participation, undermine political movements or even aspiring individual politicians.”

Understandably, financial assets that aren’t so subject to government whim have become more attractive. Many Canadians reportedly withdrew cash from banks, either because they feared their accounts could be frozen, or were frightened by the prospect. Cash is anonymous and its use is immune to state intervention (so long as the government doesn’t emulate India by turning bills into toilet paper).

In addition, even former skeptics are now open to crypto such as bitcoin as a haven for assets.

“I still can’t believe that this is the protest that would prove every Bitcoin crank a prophet,” writes David Heinemeier Hansson, a partner in the tech company Basecamp. “And for me to have to slice a piece of humble pie, and admit that I was wrong on crypto’s fundamental necessity in Western democracies.”

But “Bitcoin is far from universally accepted at stores,” Andrea O’Sullivan warns at Reason. “The longer-term solution is to encourage more businesses to accept cryptocurrency so there is no need to bridge into government-controlled money at all.”

That may well happen. Seeing the writing on the wall, governments promote central bank digital currencies (CBDC) as alternatives to both cash and crypto. But they openly salivate over being able to monitor and restrict its use. “The Bank of England has called on ministers to decide whether a central bank digital currency should be ‘programmable’, ultimately giving the issuer control over how it is spent by the recipient,” The Telegraph reported last year.

Officials argue that controllable CBDCs could cut down on tax evasion and crime. But Canadian officials freezing protesters’ bank accounts emphasizes that there are worse things than underground economies. Independent crypto alongside cash could help people retain their financial freedom.

“Perhaps we want to have government able to deny financial services to criminal organizations (but think carefully about this before you agree),” economist Arnold Kling writes. “On the other hand, we do not want government to be able to deny financial services to people who hold dissenting views. The problem is that nowadays, especially with COVID and with cancel culture, we have become accustomed to criminalizing the expression of dissenting views.”

Sacks wants to prohibit financial institutions from denying services for political reasons. But that would be enforced by the same regulators who lean on banks and insurance companies to shun sex workers, gun dealers, and payday lenders. They’re supposed to transform into neutral arbiters because the law says so. In the real world, regulators will more likely use expanded power to hurt the enemies of whoever is currently in office in the name of curbing some imaginary threat to public order.

A better solution is preserving cash and continuing to develop crypto that protects privacy and bypasses intermediaries. Even the International Monetary Fund concedes that people seek “a defense against attempts by an all-encroaching ‘Big Brother’ surveillance state to rob people of their anonymity by forcing them to leave an electronic payment trail.” But it’s not just surveillance. The Canadian government’s excesses remind us that there’s no freedom if the state can separate us from our money.

The post Justin Trudeau's Crackdown Will Make Bitcoin and Cash More Popular appeared first on Reason.com.

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Brickbat: Bad Medicine


injail_1161x653

The family of Tiffany Davis has sued Muskegon County, Michigan, Muskegon Sheriff Michael Poulin, and others, claiming Davis died because they failed to provide adequate medical care while she was in jail for probation violation. Both her cellmate and her mother said they asked jail officials to take Davis to the hospital after she began having headaches, seizures, and vomiting. The jail did not call for an ambulance until the next day. She died five days later from brain hemorrhages brought on by an infection. The attorney representing the family has already received a $2.4 million settlement from the county for the family of a man who died after suffering seizures in the jail and did not receive timely medical care. Four jail guards face criminal charges in that case.

The post Brickbat: Bad Medicine appeared first on Reason.com.

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Brickbat: Bad Medicine


injail_1161x653

The family of Tiffany Davis has sued Muskegon County, Michigan, Muskegon Sheriff Michael Poulin, and others, claiming Davis died because they failed to provide adequate medical care while she was in jail for probation violation. Both her cellmate and her mother said they asked jail officials to take Davis to the hospital after she began having headaches, seizures, and vomiting. The jail did not call for an ambulance until the next day. She died five days later from brain hemorrhages brought on by an infection. The attorney representing the family has already received a $2.4 million settlement from the county for the family of a man who died after suffering seizures in the jail and did not receive timely medical care. Four jail guards face criminal charges in that case.

The post Brickbat: Bad Medicine appeared first on Reason.com.

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