Tag: posts

From Ball v. Skillz Inc., decided Wednesday by Magistrate Judge Brenda Weksler (D. Nev.):

Presently before the court is Plaintiff Jane Roe’s Motion to Proceed under a Fictitious Name … and her Motion to Seal the Certificate of Interested Parties …. Neither Motion was opposed. Nevertheless, based on the strong presumption in favor of public access to judicial proceedings, the court denies these motions.

Plaintiff, Jane Roe, bring claims against defendant for violations of the Colorado Consumer Protection Act and asks this court to allow her to proceed anonymously. She explains that her allegations are inextricably related to her own compulsive gambling, the impact of that gambling on her mental health, the suicidal inclinations she experienced, and the related personal harms she suffered.

She explains that her employer does not know of her struggles with gambling. She also notes that her work requires interaction with members of the public who, upon learning about this case, may “weaponize” the information against her in future encounters. She is fearful of being confronted by those around her if this information were to become public and the ways in which this could affect her professional standing. For similar reasons, she also requests that the certificate of interest parties, which contains her name, be allowed to remain sealed….

“Plaintiffs’ use of fictitious names runs afoul of the public’s common law right of access to judicial proceedings.” Further, Rule 10(a) commands that the title of every complaint “include the names of all the parties.”

The Ninth Circuit allows “parties to use pseudonyms in the ‘unusual case’ when nondisclosure of the party’s identity ‘is necessary … to protect a person from harassment, injury, ridicule or personal embarrassment.'” The Ninth Circuit has permitted plaintiffs to use pseudonyms in three situations: (1) when identification creates a risk of retaliatory physical or mental harm, (2) when anonymity is necessary to privacy in a matter of sensitive and highly personal nature, and (3) when the anonymous party is compelled to admit his or her intention to engage in illegal conduct thereby risking criminal prosecution. If the plaintiff’s motion to proceed anonymously is based on fear of retaliation, the court evaluates the following factors: (1) the severity of the threatened harm, (2) the reasonableness of the anonymous party’s fears, and (3) the anonymous party’s vulnerability to such retaliation (4) the prejudice to the opposing party and (5) the public interest.

The court sympathizes with Plaintiff’s past psychological issues and is comforted by her choice to obtain help. Yet, in terms [of] retaliatory mental harm, she provides only conclusory statements about her fears surrounding future interactions she may have with the public as a result of her job and how knowledge about this case might affect her professional standing with her employer, who is not aware of her past gambling history. The information provided is so lacking that the court is unable to weigh any of the [factors given above].

And, in today’s environment, a past gambling addiction with accompanying mental health problems is not so out of the norm as to constitute sensitive and highly personal in nature. While there is no identifiable prejudice to defendant in allowing plaintiff to remain anonymous, plaintiff cannot show that the need for anonymity in this case outweighs the public’s interest in the proceedings.

Again, this court is sympathetic to Plaintiff’s concerns, but the facts of this case do not overcome the paramount importance of open courts. This court would fail its obligation to the public by allowing the plaintiff to remain anonymous.

Given the procedural posture of the case, including defendant’s pending Motion to Compel Arbitration … and defendant’s Motion to Dismiss …, the court will allow plaintiff some time before she needs to reveal her identity. [But] plaintiff’s motion to proceed anonymously … is DENIED[ and] Plaintiff’s Motion to Seal … is DENIED. IT IS FURTHER ORDERED that Plaintiff must file an amended complaint using her true name no later than 14 days after this Court resolves the Motion to Dismiss, at which time the Court will unseal the certificate of interested parties ….

from Latest – Reason.com https://ift.tt/3lTFnnq
via IFTTT

The Supreme Court’s renewed interest in the nondelegation doctrine has prompted a surge in scholarship looking at nondelegation in theory and practice during the founding era.

The nondelegation doctrine has been championed by prominent originalist scholars, such as Gary Lawson and Michael Rappaport, contending that the original public meaning limits the extent to which Congress may delegate power to the Executive Branch. Yet several new papers argue that there was a wide degree of delegation in the early Republic, suggesting that the Constitution was not understood to place limits on delegation. These papers include:

• Julian Davis Mortensen & Nicholas Bagley, “Delegation at the Founding” (forthcoming in the Columbia Law Review).
• Christine Kexel Chabot, “The Lost History of Delegation at the Founding.”
• Nicholas Parrillo, “A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s” (forthcoming in the Yale Law Journal).

This recent scholarship has also prompted some responses. These include:

• Ilan Wurman, “Nondelegation at the Founding” (forthcoming in the Yale Law Journal).
• Aaron Gordon, “A Rebuttal to ‘Delegation at the Founding.'”
• Gary Lawson, “Mr. Gorsuch, Meet Mr. Marshall: A Private-Law Framework for the Public-Law Puzzle of Subdelegation.”
• Philip Hamburger, “Delegating or Divesting?” Northwestern Law Review Online.

Given the number of self-proclaimed originalists among the current justices, and the likelihood of another delegation case reaching the Court, it will be interesting to see how this burst of scholarship influences the evolution of the doctrine.

from Latest – Reason.com https://ift.tt/31dIEWM
via IFTTT

In Sines v. Yiannopoulos, decided Wednesday by Judge Katherine Polk Failla (S.D.N.Y.), several people—all plaintiffs in a lawsuit over injuries at the Charlottesville Unite the Right—are trying to compel Milo Yiannopoulos “to disclose the identity of a confidential source who [Yiannopoulos] says has relevant documents” related to Richard Spencer. Yiannopoulos has said “that his source had played clips of responsive audio and video files, and shown him a screen where he could see that additional files existed.” But Yiannopoulos is refusing to testify about his source, based on the journalist’s privilege, which Second Circuit precedent recognizes.

The court describes the privilege, which is qualified, not absolute:

“The privilege may be invoked by an individual “involved in activities traditionally associated with the gathering and dissemination of news, even though he may not ordinarily be a member of the institutionalized press.” However, to invoke the privilege, an individual must be acting in “the role of the independent press” when “collecting the information in question.” Furthermore, “the talisman” for invoking “the journalist’s privilege is intent to disseminate to the public at the time the gathering of information commences.”

Once established, the federal journalist’s privilege is a qualified one and may be overcome. However, the protection accorded by the privilege “is at its highest when the information sought to be protected was acquired by the journalist through a promise of confidentiality.” To protect the “important interest of reporters in preserving the confidentiality of [their] sources,” the Court may override the journalist’s privilege and order disclosure “only upon a clear and specific showing that the information is: [i] highly material and relevant, [ii] necessary or critical to the maintenance of the claim, and [iii] not obtainable from other available sources.”

The court concluded that Yiannopoulos is protected by the privilege, though the defendants may yet be able to overcome it:

Movants argue that [Yiannopoulos] cannot assert the journalist’s privilege because he was gathering information and cultivating his source in order to pursue a personal feud with Richard Spencer, and was thus not acting in the role of an independent journalist. [Yiannopoulos] replies that at the time he “acquired the identity of” his source, he was employed as a professional journalist at Breitbart, and, further, that he “learn[ed] the identity of the source in the course of gathering or obtaining news”—not in pursuing a grudge against Spencer.

The factual record is both thin and slightly muddled. The parties focus their arguments on [Yiannopoulos]’s intent at the time he obtained his confidential source, as well as his role while attending an “afterparty” at which the source allegedly showed relevant recordings to [Yiannopoulos]. [Yiannopoulos] states that “when [he] acquired the identity of the source and listened to materials and became aware of various facts in the course of reporting, [he] was at the same time a senior salaried professional reporter at” Breitbart.

Breitbart is a controversial website with an overt bias, “[b]ut the touchstone is not … whether the journalistic enterprise was ‘unbiased’; by that standard, few, if any, daily newspapers could assert the privilege. Rather, the test is whether the enterprise intended to express its views publicly, or merely to engage in private lobbying.” Breitbart does not primarily engage in private lobbying, regardless of its editorial vision or the merits of the content that it publishes.

[Yiannopoulos] asserts he was writing about white supremacy “at the time in question,” making conversations with white nationalists “directly relevant to [his] daily work[.]” Thus, to the extent [Yiannopoulos] acquired his source and/or learned about the relevant documents while employed by Breitbart, he has sufficiently invoked the journalist’s privilege, even if he later developed a personal grudge against Spencer.

Movants further assert that the afterparty at which [Yiannopoulos] was purportedly shown the relevant files happened after [Yiannopoulos] resigned from Breitbart in February 2017. The timeline is not entirely clear, so the Court next addresses the possibility that [Yiannopoulos] cultivated his source and/or obtained relevant information after leaving Breitbart. [Yiannopoulos] asserts that he was not motivated by a personal grudge at the time he cultivated his source, regardless of the timing, and further argues that he attended the afterparty “for journalistic purposes.” (This assertion is supported by the fact that [Yiannopoulos] has been publishing content about white supremacist ideology since he left Breitbart, even if not for a formal media organization and even if published in an unorthodox style.)

Movants ask the Court to discredit [Yiannopoulos]’s assertion that he attended the afterparty with a journalistic intent because [Yiannopoulos] claims to have consumed significant amounts of alcohol at the party. The Court notes that the consumption of alcohol at a party does not vitiate journalistic intent. Journalists may wish to attend a party in order to gather information, or to meet and cultivate potential sources, any of which goals may be furthered by the consumption of alcohol.

Even if the Court discredits [Yiannopoulos]’s representations as to timing, the Court is not convinced that [Yiannopoulos] was motivated only out of a personal grudge against Spencer. Spencer is himself a newsworthy subject, and publishing information about him, even if tinged with personal dislike, can still be motivated by an interest to “disseminate information to the public,” and to promote “debate over controversial matters.” …. [Yiannopoulos]’s style of disseminating information may be confrontational and biased, but it is not wholly without journalistic content, and protecting even [Yiannopoulos]’s muckraking style protects the “public interest in the maintenance of a vigorous, aggressive and independent press capable of participating in robust, unfettered debate over controversial matters.”

from Latest – Reason.com https://ift.tt/31cRHHA
via IFTTT

A friend of mine, who had spent many years establishing a successful printing business in the Midwest, opened his local newspaper to find a story about a fancy redevelopment project that the city had proposed in his neighborhood. How nice, he thought, until he realized that planning officials were going to put the project on top of his company’s existing building.

He was one of many people I had interviewed for my 2004 book about the abuse of eminent domain—the government’s right to take property upon payment of “just” compensation. The Constitution allows such takings for roads, courthouses and other public uses, but the courts have expanded that definition to allow the government to take private property if it deemed the new use more beneficial than the old one.

The U.S. Supreme Court’s 2005 Kelo decision gave governments the imprimatur to do so, although Justice Sandra Day O’Connor’s dissent still resonates: “The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more.”

I thought of that case, as well as many sad interviews with victimized property owners in various eminent domain and other property rights disputes, after reading Pope Francis’ latest encyclical called Fratelli Tutti, or “Brothers All.” This pope has repeatedly diminished the importance of private property and free markets, but he usually leaves enough wiggle room so his supporters could describe what he meant in “proper context.”

We need no such context this time. “The right to private property can only be considered a secondary natural right,” Pope Francis explained. “Yet it often happens that secondary rights displace primary and overriding rights, in practice making them irrelevant.” He added that, “the right to private property is always accompanied by the primary and prior principle of the subordination of all private property to the universal destination of the Earth’s goods.”

There’s plenty to debunk in this 43,000-word missive—from its description of the market system as one based on exploitation, to its call to for stronger international institutions. But I’ll focus on the pope’s distorted view of property and his failure to grasp how this supposed secondary right undergirds those primary values of life, family, and brotherhood. As this nation’s founders recognized, property is the foundation of those bigger things.

The city’s taking of my friend’s business devastated him—not because of some dollars-and-cents accounting. In many (but not all) of these cases, the government eventually reimburses owners for the assessed value of their properties. A business, however, is not merely the collected value of its bricks and mortar. It reflects the hard work and creative energies and vision of its owners.

From his lavish Vatican surroundings, the pope describes property ownership as something secondary and even tawdry, yet even in doing so he reinforces the primacy of property. “To care for the world in which we live means to care for ourselves,” Francis wrote. “Yet we need to think of ourselves more and more as a single family dwelling in a common home.” Note the reference to a person’s home. One need not own a house to have a home, but ownership is the linchpin of our other freedoms—and the best assurance that we can provide for our families and help others.

That Pope Francis would erode such rights in the name of helping the poor is foolhardy. Even the pope admits that “corruption and inefficiency” are the hallmarks of politicians. To relegate tangible property ownership to intangible values (e.g., advancing human dignity, promoting equality) is to, as Justice O’Connor noted, benefit the rich and powerful at the expense of the poor.

I find 18th century British statesman William Pitt’s argument far more compelling: “The poorest man may in his cottage, bid defiance to all the forces of the Crown. It may be frail, its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England may not enter; all his force dares not cross the threshold of the ruined tenement.” To help the poor, protect their right to property—so they can defy even the forces of the king.

As Pope Francis correctly noted, some people will use their resources to exploit others. But he conveniently forgets that injustices have existed throughout history. As the property-rights-based market economy has expanded, grueling poverty has receded worldwide. The population living in extreme poverty has dropped precipitously in tandem with the growth of the economic “dogmas” that the pope decries. Perhaps there’s a connection.

Sorry, but property rights are not secondary. As an attorney who defended property owners from government takings liked to say, “Property rights are human rights.” You can’t have one without the other.

This column was first published by The Orange County Register.

from Latest – Reason.com https://ift.tt/3lM3Mv8
via IFTTT

“I didn’t really have your typical upbringing,” says twentysomething Joel Dawson. “I mean, I did at first, but then the world ended.”

The title of Love and Monsters announces the movie’s components with the simplicity of a candy bar wrapper. Joel (Dylan O’Brien, of the hazily remembered Maze Runner movies) still loves his girlfriend, Aimee (Jessica Henwick), even though he hasn’t seen her in seven years. They were teenage squeezes when an asteroid came hurtling down to Earth and polluted the whole planet. “Cold blooded creatures mutated and started eating us to death,” he recalls. By “cold blooded creatures” he means everything from ants and roaches to lizards and crocodiles, all of which are now very large and still hungry.

This unfortunate event wiped out most of the world’s population; the survivors are still hunkered down in caves and such. Joel is socked away in one of these “colonies,” where all of his fellow hunkerers have paired off, leaving Joel very lonely. But he knows where Aimee is (the various far-flung colonies communicate by patchy radio transmission), so he decides to attempt a journey to her pod, which is 85 dangerous miles away.

The movie has the familiar contours of a quest story. Dylan is the meek protagonist whose mettle is tested by the many perils he encounters on his odyssey—mutant frogs, crab monsters, boulder snails. He grows into a fearless hero along the way, so when he reaches his destination and finds it to be not quite what he expected, he plunges on anyway, and finally prevails (sort of).

Despite the film’s PG-13 rating, it’s not exactly a kid flick—it’s too witty (but not raunchy—this is a picture with not a breath of sex in it.). It’s also more lovingly made than you might expect—one scene, in which Joel and a helpful robot gaze up in wonder at translucent entities drifting through the night sky, is strikingly imaginative filmmaking.

South African director Michael Matthews gets solid performances out of his actors, especially O’Brien, whose wry internal dialogue provides the story’s narration. The monsters on the loose hark back to ’80s teen thrillers ranging from Gremlins to the pitiful Troll films, but are considerably better-wrought. You don’t have to be a 12-year-old to appreciate the craft with which this picture is made. But it maybe wouldn’t hurt to have a 12-year-old standing by.

J.R. “Bob” Dobbs and the Church of the SubGenius

The Church of the SubGenius was not, in fact, founded by a pipe-smoking salesman from the 1950s named J.R.”Bob” Dobbs. You may have heard that, but you’ve been misinformed. The Church was actually launched in Dallas in 1979 by two gentlemen calling themselves Reverend Ivan Stang (real-world name Doug Smith) and Philo Drummond (Steve Wilcox). These guys, born outsiders and veteran malcontents, were irritated by the way the world was going. They’d been raised in the shadow of the 1950s, and while they’d presumably had a little fun in the 1960s, by ’79, as Smith recalls, “Everything was getting too square again.” They set out to fix that.

In a new documentary, director Sandy K. Boone lays out the amusingly unlikely story of the Church of the SubGenius: how it evolved out of a cheap parody pamphlet lampooning evangelists—brimstone merchants like Billy Graham and Pat Robertson and suicide boys like Jim Jones—and, in general, all things lame and culturally constricting. Surprisingly, this pamphlet, little more than a joke, slowly took off out in the wide world, drawing the attention of, among others, Penn Jillette, Nick Offerman, director Richard Linklater, and Mark Mothersbaugh and Gerald Casale of Devo. (All of these people appear in the film.)

As the Church grew, the founders had to decide what exactly it was. Performance art? A satire of religious cults? Or was it a cult itself, proudly soliciting donations (usually one dollar) from its followers? “We’re probably the only cult that admits we’re ripping them off every day,” says Smith, “and teaching them to enjoy it.”

Smith and Drummond and other Church insiders worked up an elaborate backstory for Bob Dobbs, and spread the alarm about a huge conspiracy to oppress the weird people of the world and to steal their “slack.” (This key Church term is never quite defined, but as one adherent semi-explains, “You know it when you don’t have it.”)

The Church survived the collapse of its prediction that the world would end in 1998 (although how do we really know it didn’t?). As hipsters and collegians took an interest in it, more and more possibilities presented themselves. There were SubGenius conventions. Television interviews. A deeply detailed book that set off a bidding war among serious publishers that topped off at $20,000.

The Church of the SubGenius prospered beyond the dreams of the men who created it. Things went wrong—some of the people who got involved in latter days were mentally unstable. Smith and Drummond and their partners realized they’d have to gear down. This may be the most interesting part of Boone’s film: What do parodists do when people no longer get their joke? What do they move on to? The answer, which comes at the end of this carefully fashioned film, carries an unexpected emotional charge. And a couple of last laughs, too.

from Latest – Reason.com https://ift.tt/377atnA
via IFTTT