The Hillbilly Elegy Take Three

Discrimination is real. But, so is the fact that in any given context, some cultural norms and practices are more functional than others.

The Appalachian Hillbilly culture J.D. Vance examines in "The Hillbilly Elegy" is valuable, in part, because it provides an opportunity to look at the consequences of "a culture in crisis" that is no longer functional in most of the world where it finds itself, disentangled from the confound of the often more overt discrimination that comes up in other contexts.

But, a recurring theme in the book is the extent to which the issues faced by members of this culture in crisis mirror those of our nation's African-American communities, a culture in crisis in the United States that is in many respects dysfunctional in many of the same respects as white Appalachian culture, white Southern culture and rural Western and Great Plains whites are, but with the added kickers of ongoing discrimination and more meager community economic wealth to build upon.

In the larger scheme of things, the crises that are facing the several cultures of honor in the United States, shows strong parallels to those faced by the Muslim world, in dysfunctional regimes in many countries where they are dominant, in violent conflicts where it cohabits with other faiths in places from the African Sahel to Malaysia to the Philippines, to tensions and discrimination faced by Muslim immigrants to the West.

In each of these cases, men are struggling more to adapt to modernity than women. In each of these cases, escalation to violence is triggered more easily than in the dominant culture and both public and private violence are less unequivocally taboo, in each of these cultures men tend to be more often resistant to the dominant cultures style of providing an education, and in each of these cultures "normal behavior" often equates to lacking the "soft skills" needed to hold down a job like expected etiquette and punctuality.

There is ripe irony in the fact that demagogues like Donald Trump, his running mate Governor Mike Pence, conservative talk radio hosts, and Evangelical Christian clergy aim their fear and hatred so strongly at the African-American community and Muslims, with whom they have so much in common and who face so many of the same struggles, rather than the dominant American culture that is strongest in the Northeast and Pacific states of the United States.

Discrimination is a tricky thing. Part of it flows from ignorance, but it is more complex than that. When a culture is dysfunctional in a given context, this gives rise to stereotypes and those stereotypes are then applied indiscriminately to the detriment of everyone in the stereotyped group. And, once someone is discriminated against based on such a stereotype, whether or not its basis is actually applicable to them individually, the incentive to function well in a given context fighting the pulls of culture and expectations from insiders and outsiders alike can prove to be not worth it leading people to embrace the stereotype and give justification to further discrimination. In the absence of strong prohibitions against discrimination, it can be difficult or impossible for an individual to overcome this vicious cycle.

But, the opposite can be true as well. If a culture reforms itself, or if some subset of the stereotyped group finds a way to visibly set itself apart and defy the expectations society has of them (one of the most notable historical efforts along these lines was Malcolm X's effort to create a culturally distinct community of African-American Muslims), discriminatory perceptions can shift as well.

The point is not to somehow deflect blame for the circumstances that got us where we are, to be frank and recognize how complex a task it is to find solutions.

Ultimately, framed as a clash of cultures, in each case there are three possible solutions: reform of the aspects of the culture in question that make it dysfunctional from within, conversion to a more functional culture, or perpetuation of the status quo even though this leaves members of this culture at a disadvantage in modern society - respecting tradition and providing a hedge through societal diversity against the possibility that the context may change and with it the relative functionality of the cultures that exist.

Reform from within does happen.  Southern Baptists and Mormons have disavowed past overtly racist doctrines. Young Evangelical Christians are far less concerned about homosexuality than their parents and their grandparents generations. Turkey, under the guidance of Ataturk went from having values and norms typical of their Arab Muslim neighbors to the South to having one of the oldest and most secular Islamic democracies in the world with a population whose views are among the most moderate in the Muslim world.  Similarly, the Iran of today, while not a liberal as it was in the several years before the Shah fell in the Islamic Revolution, is also much less conservative and fundamentalist religiously than it was in the aftermath of the Islamic Revolution. The ancestors of the people whose culture now seems perfectly suited to modernity in places from New York to Munich to London to Stockholm ended up with the culture they have through painful transitions now forgotten by almost everyone but cultural and economic historians.

Conversion happens too. J.D. Vance, himself, is a classic convert from his own culture to dominant American culture. Another high profile convert is Taylor Swift who started as a country singer from Nashville but transitioned to become a pop singer based in New York City who embraces her new culture's values. Southerners who go to colleges in the North usually try to shed their accents. Most of the non-white and first generation college students displayed in the view books of selective colleges and universities have chosen the path of conversion, even if that conversion is never total in the first generation. National media and the Internet and economic migration of Northerners to parts of the South like North Carolina's research triangle, suburban D.C. in Virginia, Atlanta, and oil boom towns in Texas all create pressure for dilution of local culture, ultimately leading to assimilation into the national culture. Conversion is the norm among immigrant populations - with those parts of the culture that do not convert often omitting reforms that happen in the old country after the main wave of migration.

And, certainly, some people stick stubbornly to their traditional unreformed cultures, but as often as not, this is an ugly story of despair and cultural crisis, as much as it is something to celebrate.

Bringing about these changes is not a straight forward matter, and lead to a lot of political and social strife. But, some choice has to be made, and these are pretty much the only options.

Debate One Over, When Will The Insanity End?

Please, please, please will some of the hundred million plus people who supported Trump wake up from the insanity soon before they cast their ballots?

Why do so many people just not get it?

Even many Republican elites and Fortune 100 CEOs get it. Almost every other country in the world gets it. The media gets it.

Sure, I understand that there are some people who can't be won over, white supremacist leaders, hard core conspiracy theorists, survivalists, people who listen to nothing but talk radio.

But, lots of Trump supporters are seemingly reliable, sensible business owners and honest workers, who go to church every week, who pay their mortgages and their taxes, who graduated from high school, and raised children who weren't totally screwed up.  How can people like that support a guy like Trump?

It truly blows my mind.

Today At The Colorado Supreme Court

The Colorado Supreme Court made several notable rulings today.

Jurisdiction Over Parent Companies Narrowed

Two of them (here and here) ratified recent U.S. Supreme Court jurisprudence that makes it harder for a court to secure jurisdiction over a parent company solely on the basis of contract of the subsidiary with the forum.  Basically, this is now allowed only when there is a basis to pierce the corporate veil of the subsidiary company to hold the parent company liable and there would otherwise be a basis upon which to assert jurisdiction.

Interestingly, only the last of the several controlling recent U.S. Supreme Court cases on point that compel its conclusion are cited by the Colorado Supreme Court in its ruling.

Speeding Ticket Burden of Proof

A Mesa County man convicted of speeding in county court fought his fight over who had the burden of proof of showing that he was nonetheless reasonable and prudent after it is established that he was driving over speed limit went all of the way to the Colorado Supreme Court.  The speeder lost as the Colorado Supreme Court held that the burden of proof to show that he was within this exception to the general rule of strict liability for driving over the speed limit was on the speeder and not the People.

Equitable Defenses Allowed To Child Support Collection Cases

Another provides a new barrier to collection of interest on child support judgments. In 1960, the Colorado Supreme Court held that the defense of "laches" (undue delay causing prejudice where a statute of limitations does not bar a claim) was not available in child support collection actions because this is not an "equitable claim." But, in a landmark case in 2014, the Colorado Supreme Court held that based upon the merger of "law" and "equity" jurisprudence in the state in 1877, that equitable defenses could be raised to oppose claims brought in "law".  Today, it extended its 2014 ruling to allow defendants in child support cases to assert the defense of laches even though those are "legal" claims.

Basically, the distinction between "law" and "equity" involves a determination of whether the common law courts of England or the chancery courts of England had jurisdiction over those claims before the parallel court systems were merged. It is most prominent in cases involving the right to a jury trial in civil cases, where juries are allowed in cases arising at law, but not in equity, under the United States Constitution under the 7th Amendment.  Despite the fact that the 7th Amendment does not apply to the states, most states, including Colorado, apply that the federal rule regarding the right to a jury trial.

Generally speaking, claims at law involve straight forward claims for money damages for a breach of contract, injury to property, or personal injury, although it also includes claims for the return of particular items of personal property. Equity usually involves injunctive relief in the form of a free form court order enforceable by the contempt of court power, a very complex set of facts, or certain kinds of subject matter usually involving corporate or family law (although not necessarily mere collection of amounts previously awarded and reduced to judgment in a family law case).

In this particular case, a support order was entered in 1983 and the youngest child turned nineteen in July of 1995, which the Court determined was when the child support obligation ceased. Wife brought suit in September of 2012.  But, most of the $893,285.32 that would otherwise be due was barred by the 20 year statute of limitations on enforcing money judgments, so only defaults on the amounts due in the time period after September 1992 were considered. The father did fail to pay $400 a month of child support from July 1994 when his child turned eighteen to July 1995 when the child support obligation ended upon the child attaining the age of nineteen, and interest accrued at the statutory child support arrears interest rate of 12% per annum, compounded monthly, on the unpaid installments.  When judgment entered that interest amount was $46,399.62.

Based upon the Colorado Supreme Court's ruling, the father will be permitted to challenge that interest award on the grounds that he was prejudiced by undue delay on the part of the wife in suing to enforce her child support judgment, and the trial court will have to rule based upon the facts presented to it on that issue.

"A laches defense comprises three elements: (1) full knowledge of the facts by the party against whom the defense is asserted, (2) unreasonable delay by the party against whom the defense is asserted in pursuing an available remedy, and (3) intervening reliance by and prejudice to the party asserting the defense."

It isn't clear how that applies in this case's circumstances.

Other Less Notable Cases

Two other cases decided today dealt with the technical issue of when a developer's land becomes subject to homeowner's association dues in quite fact laden circumstances (in these cases it was not because the court found that the land wasn't annexed to the association at the time the dues were assessed).

Another dealt with whether drugs and a confession obtained from someone stopped for a traffic violation should be suppressed for a violation of the 4th Amendment (it was not based upon the finding that the search and confession were consensual).

Consumer Debt Collection In State Courts

Lawsuits collecting small debts from consumer debtors, evicting residential tenants who fail to pay rent, establishing tax liens for individual taxpayers who don't pay what they owe, and foreclosing upon unpaid residential mortgage debts are the predominant share of the court docket on the civil side of every state court system. But, despite this fact, surprisingly little is known about how these cases are handled in the courts. We do know, however, that few of these cases are litigated on the merits and that when defendants do appear in court, they often do so without counsel.  

Virginia, with a population of about seven million, has averaged more than a million civil filings a year since the late 1980s. The overwhelming majority of these filings seek to collect debts from consumers, and most judgments go unpaid. 

Despite this apparent insolvency, civil litigation appears to be only tenuously related to consumer bankruptcy whether one looks at Virginia or at the nation as a whole. Nationally, the non-business bankruptcy filing rate rose by more than 350% between 1980 and 2002, while the civil filing rate rose by about 12%. Prior research suggests that relatively few bankrupt debtors have been sued by their creditors in state court, that most bankrupt debtors are drawn from the middle class, and that bankrupt debtors own homes at nearly the same rate as the general population. 

This Article finds that few civil defendants file for bankruptcy, that civil litigation is concentrated in cities and counties with lower socioeconomic characteristics, and that civil defendants in Virginia have a significantly lower rate of homeownership than the general population. In other words, the bankruptcy statistics exclude many defaulting and insolvent consumers, and these consumers may be disproportionately drawn from the more disadvantaged segments of society.

Richard M. Hynes, "Broke But Not Bankrupt: Consumer Debt Collection In State Courts" 60 Florida L. Review 1 (2008) (emphasis added).

It is commonly assumed that the typical person who files for bankruptcy does so because they are overwhelmed with state court judgments that they can't pay.  But, by and large, this is not the case. Bankruptcy is largely the province of the insolvent middle class. State court judgments are largely the province of the uncollectible poor and the solvent middle class.  The two worlds barely intersect.

There is not an empirical consensus on how these cases are processed, although it is clear  that few are ever tried on the merits, let alone before a jury as many state court rules allow. One low end estimate is that just 40% of limited jurisdiction court debt collection cases default, although many are dismissed voluntarily or involuntarily without prejudice, sometimes for lack of service of process, and sometimes due to a deal with the debtor to make payments which are often reached after a debtor appears in court with or without filing a responsive pleading.  An industry source estimates that 80% of such cases default and a Federal Trade Commission estimate that 90% of such cases default which would be closer to my estimation.

Institutional creditors such as credit card companies and payday lenders file collections lawsuits in a surprisingly low percentage of their bad debt cases, and it is surprisingly rare for multiple suits to be filed against the same debtor by different creditors in state courts.  But, the fact that such a large share of judgments go unsatisfied helps explain this reluctance.

Also about 80% of post-judgment litigation involves the filing of garnishments. Interrogatories addressed to debtors, enforcement of judgment liens in real property, and seizures of tangible personal property from debtors are far less common.

In the case of judgment liens in real property, many debtors sued in state court don't have any real property that is not fully protected by a homestead exemption, and even when they do, there is usually a first mortgage that must be assumed if the judgment lien is enforced, so it is easier to simply wait until the home is sold voluntarily to collect the debt.

Screening Candidates

Every previous President of the United States has been a Governor, U.S. Senator, Presidential cabinet member, Vice President (who is also a U.S. Senator and Cabinet member ex officio) or the highest ranking officer in the United States military.

Political parties and the voting public have made these the informal qualifications to serve as President of the United States.  Should similar qualifications, adding perhaps the post of Speaker of the United States House of Representatives (which is high up in the line of succession), be formally added to the list in order to spare our nation candidates with no political experience like Donald Trump?

After all, no one who actually won the Presidency under its current constitution (which took effect in 1789) has lacked these qualifications, so it would not have been a huge practical burden on the public. But, it would in a quite straight forward manner remove all sorts of dubious candidates who either have little chance or winning or should have little chance of winning, for consideration.

Essentially, the list would require every candidate for President to be someone whom voters still like after that person won a major statewide office, won the confidence of someone who was previously elected President for a high office, or in the case of a former Speaker of the House, previously won the confidence of the people in a major office for less than an entire state and won the confidence of a majority of representatives from every state?

This sets a serious floor of qualifications on someone leading the nation which greatly reduces the risk that someone unqualified running our nation.

In contrast, several past Presidents and Hillary Clinton would have been disqualified by an anti-nepotism clause that would prohibit family members of past Presidents from holding that office.

At various times and places, there have also been prohibitions on holding high public office for people who have been convicted of felonies, for people who have filed for bankruptcy, for people who do not own any real property, and for people who have previously been removed from office by impeachment or for misconduct.

Section 23 of the Canadian Constitution, for example states that:

The Qualifications of a Senator shall be as follows: 

(1) He shall be of the full age of Thirty Years;
(2) He shall be either a natural-born Subject of the Queen, or a Subject of the Queen naturalized by an Act of the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland, or of the Legislature of One of the Provinces of Upper Canada, Lower Canada, Canada, Nova Scotia, or New Brunswick, before the Union, or of the Parliament of Canada after the Union;
(3) He shall be legally or equitably seised as of Freehold for his own Use and Benefit of Lands or Tenements held in Free and Common Socage, or seised or possessed for his own Use and Benefit of Lands or Tenements held in Franc-alleu or in Roture, within the Province for which he is appointed, of the Value of Four thousand Dollars, over and above all Rents, Dues, Debts, Charges, Mortgages, and Incumbrances due or payable out of or charged on or affecting the same;
(4) His Real and Personal Property shall be together worth Four thousand Dollars over and above his Debts and Liabilities;
(5) He shall be resident in the Province for which he is appointed;
(6) In the Case of Quebec he shall have his Real Property Qualification in the Electoral Division for which he is appointed, or shall be resident in that Division.

Of course, a $4,000 net worth and real property wealth requirement in 1867 when that provision was adopted was a lot more meaningful at the time (probably on the order of $80,000-$100,000 Canadian dollars today), than it is now.  Also, it isn't as if the job of Canadian Senator exposed someone to liability, so why have the requirement?  So that they represented people who had "a stake in society" and an incentive to obey its laws?

A Canadian Senator's office becomes vacant if he dies, "he attains the age of seventy-five years", he resigns in writing, or under Section 31 of the Canadian constitution:

(1) If for Two consecutive Sessions of the Parliament he fails to give his Attendance in the Senate;
(2) If he takes an Oath or makes a Declaration or Acknowledgment of Allegiance, Obedience, or Adherence to a Foreign Power, or does an Act whereby he becomes a Subject or Citizen, or entitled to the Rights or Privileges of a Subject or Citizen, of a Foreign Power;
(3) If he is adjudged Bankrupt or Insolvent, or applies for the Benefit of any Law relating to Insolvent Debtors, or becomes a public Defaulter;
(4) If he is attainted of Treason or convicted of Felony or of any infamous Crime;
(5) If he ceases to be qualified in respect of Property or of Residence; provided, that a Senator shall not be deemed to have ceased to be qualified in respect of Residence by reason only of his residing at the Seat of the Government of Canada while holding an Office under that Government requiring his Presence there.

It isn't clear if someone like Donald Trump who has had six corporate bankruptcies for entities that he has run, but not a personal one and not after he might take office, would fall within Section 31(3) above.

Canada vests the authority to make law on comparable topics in its House of Commons, to the Provinces in which an MP is elected.

Is it relevant that the Canadian Senate is essentially Canada's version of the House of Lords, but comprised only of the equivalent of a British Life Lord?

Did you notice that Canada originally required merely that Canadian Senators be British subjects and not that they be Canadian citizens (although this provision is arguably now be spent since no one alive at the time of Union in 1867 is under 75 years of age, depending upon how that somewhat ambiguous sentence is read)?

Marginal note:

Marginal note: 

Should something like any of these qualifications be added to the list of qualifications in the U.S.?

And, while few people would dispute that the President of the United States should be a U.S. Citizen, does it really make sense to retain the constitutional requirement that the President be a "natural born" citizen as opposed to requiring merely that the President have resided in the United States for a certain number of years?

Is there any meaningful reason for excluding someone who is thirty-five years old (the minimum age to serve as President) if the candidate was naturalized as a citizen at the age of one year and lived in the United States at all times after that, but allowing someone who was born in the United States to non-citizen parents who didn't live in the United States until a year or two before running for office, to serve as President of the United States?

Eric Goldman Clearly Received An Elite Kindergarten Experience

“The California appeals court said Yelp had no standing to protest an injunction against it,” [Law Professor Eric] Goldman said. “That contradicts basic due process that we learned in kindergarten. Yelp was ordered to do something without ever having a chance to tell the court its side of the story.”

From the San Fransisco Chronicle.

Eric Goldman is the leading scholar of reputation law in the digital age and his blog is in the sidebar at this blog.

Perhaps he gained such an esteemed position because of the excellent education he received in kindergarten.  I, in contrast, was trying and failing to learn how to color between the lines, and learning the alphabet and how to count to ten. But, some people, like the nine year old starting college this year, are more precocious than I was.

Perhaps the federal government can hire him as a witness for the government in its immigration cases where it has argued that young children are capable of representing themselves in immigration court without offending due process considerations. (I believe that a later decision in the case found against the government, although only on a preliminary matter like class action certification.)

The Merits

In all seriousness, the issue presented is whether Yelp has standing to contest a finding that a customer review posted by a user is defamatory in a proceeding to have an injunction put in place to order Yelp to remove it, when a default judgment against the user who posted the review was obtained by a business which claims to have been defamed by the review.

Generally speaking, default judgments cannot be used as proof in another case against anyone other than the person against whom they were entered (and not always then) under the doctrines of collateral estoppel and res judicata. So, Yelp would not even have to prove that the court entering the judgment had jurisdiction to enter the judgment (which mostly boils down to whether there was valid service of process on the user who may or may not have been accurately identified by the business).

UPDATE September 22, 2016: This majority rule of law, however, is apparently not the law in the State of California.  The California Court of Appeals states in a footnote to its opinion that:

A “‘“default judgment conclusively establishes, between the parties so far as subsequent proceedings on a different cause of action are concerned, the truth of all material allegations contained in the complaint in the first action, and every fact necessary to uphold the default judgment.” ’ [Citations.]” (Gottlieb v. Kest (2006) 141 Cal.App.4th 110, 149.)

It isn't entirely clear if this language means that a default judgment as to one theory in one lawsuit against a defendant also applies with respect to a different theory in the same lawsuit against the defendant (a majority rule), or if facts admitted by default in one lawsuit can also be held against that defendant in a second lawsuit (a minority rule). However, it appears that only one lawsuit was filed in this case.

Even on its face, however, this rule of law should only bind the defaulting defendant and not someone who was not joined to that lawsuit and did not default.

END UPDATE.

If Yelp has no legal interest in the reviews posted by its users, on the theory that the users were the sole and exclusive owners of the reviews, it doesn't have standing to fight the decision. 

But, that characterization of the interest that Yelp has in reviews posted and aggregated and evaluated by it at its website is dubious. Indeed, the contractual relationship set forth in the Yelp terms of service, in all likelihood, expressly grants Yelp rights in the reviews that are posted by users. 

So, Yelp ought to be entitled to fight the claim that the review was defamatory on the merits before an injunction taking it down can be ordered, and the California Supreme Court will have to decide if that is the case.

UPDATE September 22, 2016:

Eric Goldman's lengthy post on the case is here.  An update is here.  The California Supreme Court unanimously voted to grant certiorari on September 21, 2016.

Transmission of the record, briefing, and oral arguments are likely to follow an ultimate ruling on the merits a year or more in the future.

It also isn't clear what is going on with defaulting defendant Ava Bird, who is being ruthlessly punished for writing a few short negative Yelp reviews. Should she voluntarily consent to remove the review perhaps in a settlement that reduces the money judgment against her, or is forced to do so under threat of contempt of court, or brings her own successful motion to vacate the judgment on some grounds, Yelp's claim could be mooted.  If this happens, it isn't clear if that would leave the bad precedent of the California Court of Appeals case in place, if that opinion would be vacated, or if the California Supreme Court would continue to render an opinion on the grounds that the issue might otherwise escape review in almost every case.

Finally, it is not at all obvious that the Plaintiff and former attorney of the defaulting defendant has complied with all of her ethical duties as an attorney by pursuing this course of action. If not, a grievance might be filed that might give rise to additional proceedings.

A few aspects are notable:

* The case involved a client complaining about an attorney.

* The complaint was served by "substitute service" rather than by personally delivering it to the defendant.

* Yelp was not named as a party or joined in the action, so it had no notice of the suit at the time that default judgment was entered.

* An ex parte "prove up hearing" was scheduled and held.  It isn't clear if any notice was delivered to the defaulting defendant or received by the defaulting defendant, but the defaulting defendant, at a minimum did not show up at the "prove up" hearing.

* The plaintiff filed court documents filed the court in anticipation of the "prove up" hearing, but not provided to Yelp which also was given no notice of the hearing, there (emphasis added):

In support of its request for injunctive relief, Hassell argued that “once the trier of fact has determined [Bird] made defamatory statements,” the court would have authority to issue an injunction, and that if the same showing could be made at a prove-up hearing, a comparable injunction would be proper. Hassell reasoned that denying injunctive relief after a default prove-up hearing would mean a plaintiff can be forced to suffer defamatory harm so long as the defendant refuses to answer the complaint. Hassell requested that the injunction contain a provision requiring Yelp to remove the defamatory reviews in the event that Bird failed to do so, which was likely in light of her history of “flaunting” California’s court system.

* Yelp received no notice of the "prove up hearing" and did not attend it.

* Following the ex parte "prove up hearing" at which only the plaintiffs attended and of which no transcript is in the appellate record, a default money judgment for "general and special damages and costs" of $557,918.75 was entered, but no punitive damages were entered. This is a pretty stunning award for someone who merely posted a few comments that were allegedly false in a Yelp review online.

* The default judgment also ordered the defaulting party to remove the complaint from Yelp's site.  The third paragraph is the "removal order" directed at Yelp:

“Plaintiffs’ Request for Injunctive Relief is Granted. Defendant AVA BIRD is ordered to remove each and every defamatory review published or caused to be published by her about plaintiffs HASSELL LAW GROUP and DAWN HASSELL from [Y]elp.com and from anywhere else they appear on the internet within 5 business days of the date of the court’s order. 

“Defendant AVA BIRD, her agents, officers, employees or representatives, or anyone acting on her behalf, are further enjoined from publishing or causing to be published any written reviews, commentary, or descriptions of DAWN HASSELL or the HASSELL LAW GROUP on Yelp.com or any other internet location or website. 

“Yelp.com is ordered to remove all reviews posted by AVA BIRD under user names ‘Birdzeye B.’ and ‘J.D.’ attached hereto as Exhibit A and any subsequent comments of these reviewers within 7 business days of the date of the court’s order."

* After judgment was entered, "Hassell served Bird with notice of entry of judgment. Bird did not appeal, and the judgment became final on March 16, 2014." The judgment was delivered to Yelp the same day that the judgment was served upon Bird (the opinion does not reveal the form of the service).

* Roughly two weeks after the judgment was served and before it was final, the Plaintiff served a demand letter upon the registered agent for Yelp.  Yelp responded with a letter to the Plaintiff setting forth its legal position that it was not bound by the order less than a week after receiving the demand letter.

* Yelp allows users to unilaterally remove their own complaints.

* It isn't obvious at first glance that this injunctive relief order was ever served upon the defaulting defendant which is necessary to give the Court authority to sanction the defendant for violating the injunction. The defamation plaintiff could have served the injunction on the defaulting defendant and then held the defaulting defendant in contempt of court if the defaulting defendant did not comply. But, if the defamation plaintiff had tried to compel the defaulting defendant to remove the complaint from the website, the defendant might have made an effort to set aside the default judgment on multiple grounds pursuant to the California equivalent of F.R.C.P. 60 (e.g. bad service of process, excusable neglect, misidentification of party complaining to Yelp).

* There is no indication in the record that the defamation plaintiff to action to compel the defaulting defendant to take action.

* Therefore, after the order was entered and served, Yelp sought to vacate the order, but was not allowed to dispute the merits of the defamation claim, obtained by default.

* The Court of Appeals concludes in the face of case law that arguably says otherwise, that Yelp was bound by the same deadline for attempting to set aside a judgment in the case that applied to the defaulting defendant, even though it was not a party to the case, and that its motion to vacate the order under the court rules (which are statutory in California) was untimely.  But, the Court held that it was still allowed to file a motion of a type not specified in the court rules.

* The California Court of Appeals decision is here.  It basic conclusions are as follows:

(1) Yelp is not “aggrieved” by the defamation judgment entered against Bird, but it is “aggrieved” 1 Generally, we will refer to respondents collectively, using the singular, gender neutral pronoun form where appropriate. 2 by the removal order; 

(2) Yelp’s trial court motion to vacate was not cognizable under Code of Civil Procedure section 6632; 

(3) Yelp has standing to challenge the validity of the removal order as an “aggrieved party,” having brought a nonstatutory motion to vacate that order; 

(4) Yelp’s due process rights were not violated because of its lack of prior notice and a hearing on the removal order request; 

(5) the removal order does not violate Yelp’s First Amendment rights to the extent that it requires Yelp to remove Bird’s defamatory reviews; 

(6) to the extent it purports to cover statements other than Bird’s defamatory reviews, the removal order is an overbroad unconstitutional prior restraint on speech; and 

(7) Yelp’s immunity from suit under the Communications Decency Act of 1996 (the CDA), 47 United States Code section 230, does not extend to the removal order.

* In the big picture, one of the real problems is entering a compulsory final injunction against someone who was not a party to the litigation. Generally, only parties to a lawsuit are bound by its decision. There are a couple of exceptions to that idea, but they involve their own due process protections.

For example, in the case of a garnishment for a money judgment, the garnishee can respond that the money allegedly owed by it to the judgment debtor isn't actually owed, but it can't dispute that the judgment debtor owes money to the judgment creditor.  The garnishee is also generally required to give notice of the garnishment to the judgment debtor, potentially causing the judgment debtor to seek to set aside the default judgment.

Injunctions directed at a party to a lawsuit can also sometimes have a penumbra effect on some people who have notice of it, although this doctrine is relatively narrow.  For example, an officer of a defendant corporation who knows of an injunction entered against a defendant corporation might conceivably be subject to contempt of court for causing the defendant corporation to violate the injunction.  A trial court opinion on this subject stated that: "under California law, an injunction can be “applied to” a nonparty by virtue of its relationship to an enjoined party. (Citing Ross v. Superior Court (1977) 19 Cal.3d 899, 906 (Ross).)"

* The crux of the appellate ruling against it is as follows:

Yelp attempts to characterize the removal order as an injunction against Yelp. We do not accept that characterization. The judgment was entered solely against Bird, and the injunctive order was directed solely at Bird’s defamatory speech. 5 The removal order was limited to statements covered by that injunction, statements attributed to Bird which she had been ordered to remove. Thus, the removal order does not impose any independent restraint on Yelp’s autonomy. Under these circumstances, charactering the removal order as an injunction creates unnecessary confusion about the clear distinction between the removal order and the underlying injunction against Bird. For reasons already discussed, Yelp cannot bootstrap its collateral attack of an allegedly void 5 order into a substantive appeal of the default judgment itself. The question whether the trial court should have granted an injunction against Bird is outside the scope of this appeal.

In other words, the California Court of Appeals concludes that Yelp's attack on the order directed at it cannot attack the merits of the determination reached against the defaulting defendant that the statements were defamatory and that a judgment was proper.

Basically, the California Court of Appeals concludes that Yelp is the kind of non-party who can be bound by an injunction because of its relationship to the defaulting defendant, while Yelp disputes that this is the case.

Facelift

I've changed the background to plain white because I got tired of looking at the old pattern which has been there for a while.

The Hillbilly Elegy Take Two

I recently read "Hillbilly Elegy: A Memoir of a Family and Culture in Crisis" by J.D. Vance.

The Story Of My Life From The Other Side Of The Tracks

It hits home. 

Vance grew up in the same county in Ohio (Butler), that I did. My wife likes to talk about them as "my people", but as she knows full well, even though they lived nearby, they aren't my people.

Vance was born around the time that I started junior high school, which is when I first encountered his people.  

Oxford, Ohio, down the road from Middletown and just a few miles from the Indiana border, was recently rated the best college town in the nation and also as number one for commitment to undergraduate education.

Ohio's plurality employer was not Armco Steel (Middletown's major employer which was in its waning days at the time), but Miami University, a "public ivy" with 16,000 students, almost all undergraduates, with more founding chapters of fraternities and sororities than any other university in the nation, and a generally conservative, affluent, disproportionately white, class conscious student body that values quality of life as much as academics.  In the 1980s and early 1990s there weren't even many Asian American students on campus, although now there are many.  Almost everyone we knew was affiliated with the college, the school district, a governmental agency, or the hospital.  The local elementary school served only residents of the city proper. 

But, our school district, Talawanda, was the geographically largest district in the state.  In addition to the square mile and larger Oxford township, it served a host of small towns full of people with Appalachian and Southern roots with owners of small and medium sized farms between them.

Junior high school is when the kids from the "outlying areas" who had attended local rural elementary schools were integrated with the city kids in a single junior high school in the middle of the City of Oxford that served the entire district, a district so large that some students from the outlying areas would spend an hour on the bus to school and another hour on the bus going home, each day.

The cultural divide was stark.

The city kids, despite the small size of the town, because it was a college town, were urbane, northerners, had parents who supported the schools and believed in the value of the education they were receiving, and were middle class or upper middle class.  Most of my friends had a family member in the university phone directory. The city kids had a variety of faiths, mainline Christians, members of historically black churches, Unitarians, a few Catholics and as many Jews. The city kids were white, every manner of Asian, black and Hispanic.  But, almost none had Appalachian or Southern white working class roots. Nobody from the city was Pentecostal and Baptists were also very rare.

In elementary school, we had thought were we plenty wild and rowdy.

But, by the standards set by the kids from the outlying areas, we were all well behaved, privileged, ladies and gentlemen who believed in the system. (The kids from the university run K-8 "laboratory school" who joined us a couple of years later because there were no private high schools within forty-five minutes drive didn't know how to function in a rigid public school bureaucracy, but were good hearted for the most part.) Our fights were light hearted and waged fists. Their's were serious, culture of honor duels waged by boys who picked fights intended to prove their manhood, and inflict serious damage, often with some sort of weapon (although almost never firearms in junior high school). We knew how to make model rockets. They knew how to make pipe bombs. One girl from their side of the tracks in my school at the time was pregnant at age thirteen.

I didn't realize it at the time, but the kids from the outlying areas actually belongs to two distinct cultures with many superficial similarities, rather than the one it had seemed to be at the time because both had similar musical tastes, similar clothes, the same bus routes, a shared animosity towards city kids, and similar versions of not quite standard upper middle class English.

Many were the peers of Vance's much older brother - "white trash" who worked blue collar jobs for low wages, lived in mobile homes ("trailers") or small houses in ill repair in the outlying areas, who had poor work habits, violent tempers, mean dogs, a vague, mostly unchurched Christianity, a propensity to drink to much, little respect for the educational process from parents or children, and a wealth of resentment and racial animosity.

The rest were career farmers who had owned their land for generations. They were relatively more affluent (basically middle class), observantly Evangelical Christian, more industrious, less volatile, taciturn, and socially as well as politically conservative. They made the Future Farmers of America and the Future Homemakers of America the biggest clubs in school, participated in 4-H, football and cheer squads, took vocational agricultural classes on topics from growing crops to welding to balancing books, drove pickup trucks and muscle cars to school, and made more money than anyone else in school working adult jobs at adult pay during summers, vacations and other free time on family farms. They rode horses and raised prize pigs and pumpkins.

Most wouldn't be going to college, so these were their glory days and while their parents resented what they saw as a school district catering to city kids, they also treasured their children's high school feats that would get their kids in the papers.

Vance's peers were my enemies for the two years of junior high school and three years of high school I shared with them (I spent my junior year abroad).

Vance's peers were the band of brothers who beat up my friend and I as we walked home on the railroad tracks. The main bully who targeted his rage at me later ended up in federal prison for stealing Social Security checks from mailboxes and trying to use them. His family's primary occupation for half a dozen brothers, the adults and other hangers on was a Christmas tree farm in season, and cutting down unwanted trees and branches the rest of the year.

His peers were the one's who showed up at school in family member's KKK robes and taunted the small number of black students and Jews, both of whom were "city people" mostly connected to the university, like me. The rest of us city kids took it personally because the black students and Jews were part of our "tribe" facing threats from outsiders from the outlying areas. Many of Vance's peers spent a lot of time in detention and in school suspensions. Many smoked and for a brief while we had a smoking lounge for students. They rarely did their homework. They drank cheap beer and liquor to get drunk, not nice parental wine and cocktails for the glamour of it.

One of those peers was my girlfriend for a couple of months, whom I took to homecoming. We often met up at her place, which was usually parent-free, in a trailer park just outside Oxford township and made out a lot.  But, we broke up, and by the next semester her family had moved on without warning to some other town for reasons unknown.

A Clash Of Civilizations

The Hillbilly Elegy is described as a "memoir" but it might as well be a participant-observer ethnography. It consciously recognizes that it is discussing the coherent whole of a particular culture or subculture (that depends upon whether you are talking to a lumper or a splitter). And, it isn't a healthy one.

My analysis of weak families among working class whites has avoided moral blame or a focus on parenting skills. Vance pulls no such punches.

Before we make it past the preface into chapter one, we are greeted with the fact that lots of Vance's peers cannot hold down a decent paying, unskilled job for any length of time because they lack the soft skills of punctuality, let alone showing up to work or doing a full day's work when they are there. They blame the failure that they bring on themselves on their employer.

He also describes at length the horrific job that the adults in his life do at keeping their own relationships in tact and their gross parenting failures that traumatize their children and force them to basically raise themselves and look elsewhere for role models.

His is a world where multiple dark childhood traumas and emotional disruptions, "Aces" is a technical psychological term for them, he says once he reaches his Yale Law days and realizes that his peers didn't have similar experiences, are the norm rather than the rare exception.

He explicitly draws the numerous comparisons between the self-destructive aspects of Hillbilly culture and those of African-American culture.

The only things that seem to work to remove people from their self-made squalor are those that self-consciously involve changing someone right down to the fundamental level of their cultural norms and habits - the U.S. Marine Corps for him. Religion for others like his birth father. And, later, a sympathetic professor mentor and a girlfriend who are receptive to keeping him on the right track despite his lack of social capital. But, he is also well aware of the poison and anti-intellectualism lurking in the kind of religion that sets his screwed up father on a happier, relatively straight and narrow path. My people don't love these institutions, but they seem to work better than the alternatives for the Hillbillies in crisis.

His grandparents do as well as they do, despite being dragged down by their own daughter's failures, by leaving the Kentucky hill country in the face of a teen pregnancy scandal for Southeast Ohio where his grandfather takes a factory job in a steel plant that intentionally hires friends and family of other Kentucky migrants from the same towns and valleys they did. They end up visiting often and their own community is a half-way house full of similar migrants, but they partially escape the vicious cycle.

Vance's world is a place where mere insulting worlds lead to vicious, psychotic violence that the victims don't report because they share a code of honor. It is a place of vigilante justice and feuds that belong in an earlier century. It is a place full of guns and drug addicts. It is a place of hungry children and welfare queens. It is a place where domestic violence is the norm and alcoholism is common place. It is a place where few people go to college, but some join the military. It is a place where duty and respect can be taken seriously, but betrayals and failure are common.

Even when his mom and stepdad de jour manage to bring in good money, they piss it away on senseless consumerism, destroy their marriage, screw up at their jobs, and provide poor parenting for their children.

Vance's book is an elegy for a Hillbilly culture that is slowly by surely dying and bringing as many of its practitioners down with it as it can mange. Whatever virtues its way of life served in the Scottish borderlands and Northern Ireland and the American Frontier back when that was Appalachia, have long since been rendered dysfunctional. The people in the culture he grew up in are experts at snatching defeat from the jaws of victory. Their lack of discipline and respect for education, weakness for short term gratification, and their short tempers doom them at everything they try.

Those who are smart and lucky and have supportive adults in their childhood (not necessarily parents) and romantic partners from outside the culture in their lives to get them on the right track, can escape into the rest of the American middle class and prosper. Those who aren't so lucky are doomed to repeat the cycle.

Vance offers insights but no solutions. Indeed, he makes clear that mere economic opportunities alone aren't enough to keep his people from screwing things up. They need collective attitude adjustments and nobody has any insights on where they will come from.

A Mind Is A Terrible Thing To Waste

A new study demonstrates what advocates for scholarship funds have long argued. Lots of academically talented people don't pursue higher education because they can't or perceive that they can't afford it, and this results in immense lost economic productivity for our nation.

Genes, Education, and Labor Market Outcomes: Evidence from the Health and Retirement Study* 

Recent advances have led to the discovery of specific genetic variants that predict educational attainment. We study how these variants, summarized as a genetic score variable, are associated with human capital accumulation and labor market outcomes in the Health and Retirement Study (HRS). We demonstrate that the same genetic score that predicts education is also associated with higher wages, but only among individuals with a college education. Moreover, the genetic gradient in wages has grown in more recent birth cohorts, consistent with interactions between technological change and labor market ability. We also show that individuals who grew up in economically disadvantaged households are less likely to go to college when compared to individuals with the same genetic score, but from higher-SES households. Our findings provide support for the idea that childhood SES is an important moderator of the economic returns to genetic endowments. Moreover, the finding that childhood poverty limits the educational attainment of high-ability individuals suggests the existence of unrealized human potential.

From here.

The Hillbilly Elegy Take One

I quoted at length from an article by Kevin Williamson on the future of Appalachia in an early 2014 post.  Since then, I've read the Hillbilly Elegy by J.D. Vance, although I haven't yet written a post on it, despite starting to do so a couple of times.  Williamson's review of the book is here and entitled "Albion's Ashes". Some excerpts:

Vance’s memoir really is not, despite its marketing, a tale of economic privation among the Kentucky Scots-Irish exodus. It is closer to the opposite: His Kentucky-exile grandparents are secure and prosperous in spite of their own humble origins and a long period of alcohol-fueled domestic strife; they own a nice, four-bedroom home and drive new high-end cars—convertibles, even. Growing up in a small town in Ohio in the 1990s, Vance lived in a household with an annual income exceeding $100,000, or the equivalent of about $175,000 a year in today’s dollars. . . . 

His family was indeed miserable, but theirs wasn’t the misery of poverty and privation. It was the misery of people determined to be miserable at any price. The great American bounty was wheeled out for their enjoyment like room service at the Ritz Carlton, and they decided they preferred Wendy’s and Night Train and OxyContin and desultory sex with strangers from bars. 

Nothing happened to them—they happened. . . .

His mother is a nurse, a much-married woman who grows bored with men who are kind and well-employed, who takes up drinking and carousing relatively late in life and engages in theatrical public meltdowns, including purported suicide attempts. . . . Vance’s grandmother (and surrogate mother), whom he calls Mamaw, is one of those horrifying redneck women who thinks of herself as a matriarch, threatens to shoot people all the time, and apologizes for being a “crazy bitch” even while she obviously takes pleasure and a sense of personal identity from being one. . . .

[T]he chaos of his upbringing—at one point, he’s dividing his time between three different households, and most of the members of his tight clan have different surnames—is real and it is awful, but it has little to do with economic opportunity per se. His family doesn’t live in the poor section of town, and they have money to provide him with all sorts of desirable things, including golf lessons. He gets a nice set of secondhand MacGregors—being a poor hillbilly ain’t what it used to be. . . .

Vance’s mother loses her high-paying nurse’s job in a . . . dramatic fashion, raiding the hospital pharmacy, getting high as a Georgia pine on prescription painkillers, and then Rollerblading through the emergency room. . . . Between the legal fees, the rehab facilities, the never-to-be-repaid “loans” during spells of self-inflicted unemployment, Vance’s mother bleeds her parents white over the course of her adult life. . . .

Vance had the good sense to delay college and enlist in the Marine Corps instead. And the Marine Corps is one of the few remaining American institutions that delivers more or less exactly as advertised. Vance entered the boot camp pudgy, disorganized, immature, and lacking in confidence. He left it harder, wiser, and more capable. His account of his time in the Marines is in fact one of the most interesting sections of the book, and the one that points both to the promise and shortcomings of public-policy interventions to counter the dysfunction of the white underclass. As Vance puts it, the Marines take in new recruits under an assumption of maximum ignorance, i.e., that they do not know the basics of anything, from personal hygiene to keeping a schedule. The Marine Corps interferes in Vance’s life in intensely invasive and personal ways: When he decides he needs to buy a car, an older Marine is dispatched to make sure he doesn’t buy something stupid and stops him from signing a high-interest financing contract with the dealer, steering him instead toward a much better deal available through the Marines’ credit union. . . . 

J.D. Vance may have set out to write something like Angela’s Ashes, exploring the interaction between addiction, poverty, pride, and clannishness, but what he has delivered is a personal supplement to Albion’s Seed, updating us on the decline of the Scots-Irish communities whose submersion in atavistic hinterland folkways keeps them in poverty even when they are not, strictly speaking, poor. It is an engaging and at times fascinating read, and one that contains, despite Vance’s best efforts, very little to support a case for hope.

Another piece looking at geographic links between firearm suicides, opioid abuse and Republican political support's growth in recent years also offers an interesting perspective.

Gun Ownership Down And Increasingly Driven By Fear

The percentage of American adults who own guns is now 22%, with half of those guns owned by just 3% of American adults. This marks a steady decline in gun ownership. And, increasingly, gun owners say that they are doing so for self-defense and not for hunting or target shooting purposes.

This is according to the unpublished results of a new Harvard-Northeastern University study released by The Guardian newspaper.

The Powerful Lure of Marriage And Family

Few things trump big dollar economic incentives. But, a desire to marry and have children and raise them yourself is one of them.

The clients for Melissa’s company are all CEOs, and once a month one of them wants to fund her company to grow it big: A recruiting revolution! 

Melissa does not want a startup. She wants a family. She is restructuring her life to get what she wants. 

She hired another person in her company to take half her workload so she can focus on dating. She moved into an apartment that is big enough to actually live in so she won’t want to move in with the every guy she meets. She stopped traveling all the time because she can’t date if she’s out of town.

From here (hat tip Marginal Revolution).

I've seen similar statements made by specialist medical doctors who are women on dating sites. Lots of women in the twenty-first century in the United States, who are extremely economically successful, are still strongly attracted to the societal norm of getting marriage and having children while being supported by a spouse.

The problem, of course, is that if you are extremely economically successful, there are few men who can support you in the manner to which you are accustomed, and while they may want intelligent spouses (in part, because it makes their children more fit), they may not be particularly interesting in having an extremely economically successful wife.  Also, as women make up an increasing share of extremely economically successful individuals, the problem only gets worse.

To state the obvious, virtually no men who are extremely economically successful express a desire to (let alone act upon a desire to) become homemakers whose primary task for many years is to raise a couple's children while being economically supported by a wife (although extremely economically successful men certainly do express a desire to be married to a suitable wife and raise a family).  The goal of extremely economically successful men is much easier to attain.

As many studies have demonstrated, a very substantial share of income inequality among well educated and skilled women arises from the economic penalties associated with making that choice. See, for example, a recent study highlighted by Vox.

Now, that isn't the end of the discussion. First, one needs to consider if it makes sense to campaign to change the culturally driven gender scripts that seem out of place in these circumstances for men and for women alike.  Second, one needs to consider whether the economic penalties associated with taking a few years out of the work force to focus on children legitimately flow from productivity gains that come from not doing so, or if instead, this is merely a veiled and structural form of discrimination that has no legitimate economic basis.

Apparently, this is not a sentiment shared widely in Japan, where young professional women are increasingly rejecting the course of marrying and having children. I explain some reasons that this may be the case in comments on the piece here.

Effective Social Media Movement Politics

One of the most effective political action efforts on Facebook, in my humble opinion, is "Repeal the Second Amendment."

Most of the time, it posts a very factual local news report on an accidental shooting, an attempted or successful suicide, or a murder, often by children. Each incident is reported separately with only minimal commentary.  But, what it does is turn statistics, that engage your rational mind but doesn't require a personal commitment, into very human stories with emotional power that understatedly provides a call for action and a sense of urgency. And, because these tragedies take place almost every day someplace in America, sometimes several times a day, the cumulative effect is huge.

Also, it doesn't equivocate. While it makes occasional posts about particular legislative efforts related to gun control legislation, it doesn't focus on the minutia of the legislative process or spend a lot of time whining about the undo political power of National Rifle Association lobbyists.

Instead, it sets out, in its title, at the top of every post, a simple agenda. Repeal the Second Amendment.  It makes the case that a right to bear arms is bad policy that shouldn't be a constitutional right (which is the case in every other country in the world, even those that once had one in emulations of the United States) on the merits, rather than arguing the meaning of the amendment's ambiguous phrasing.

The campaign is a long haul, movement politics effort to shift public opinion. Everybody knows that the votes aren't there in Congress or in statehouses to achieve its goal any time soon.  But, by relentlessly humanizing the consequences of the status quo, it takes on the difficult but worthy task of changing that reality.

It may take many years or decades, but I think that its campaign, over time, is going to change public opinion about the harms associated with widespread gun ownership, and when that shift becomes great enough, change will happen.

Heroes Make A Difference

Reneita Smith of College Park, Maryland isn’t just dedicated to the kids she drives to school, she cares for them like her own. When the school bus full of 20 elementary school children Smith was driving suddenly caught fire yesterday afternoon, Smith’s only concern was making sure that each and every child in her care was off that bus and safe. 

According to Smith, an illuminated brake light indicator was the first indication that something wasn’t right. Neighbors who saw the incident said they saw flames coming from the wheels of the bus. When Smith realized the bus was on fire, she didn’t even hesitate over what to do. “I opened my door, took off my seat belt, and I got my babies off that bus,” she told NBC. Smith went back into the flaming bus repeatedly until all 20 students were off the bus. A neighbor herded the children into a nearby yard a safe distance away. Then, just to be sure everyone was accounted for, Smith went back into the bus. “I ran back onto the bus to make sure that every seat was clear,” she said.

From here.

One person's bravery can make all the difference between an epic tragedy and a merely bad day. Of course, in an ideal world, school buses wouldn't suddenly catch on fire and make it necessary for someone to be a hero to avoid a tragedy.

Eyes In The Sky

In an age when long range guided missiles are the norm, the ability of a warship to strike moving targets like enemy ships, aircraft and ballistic missiles, is the range of its sensors.  For line of sight sensors, the curvature of the Earth limits that range to about 30 miles.

But, the U.S. military's latest manned fighter aircraft, the F-35, is designed so that it can transmit the input coming into its avionics to U.S. warships in the vicinity, greatly extending the range at which U.S. ships can strike moving targets (and thereby keeping U.S. warships further away from, and ideally out of range of, fire from their opponents).

This could extend the effective range of long range guided missiles on warships targeting moving targets by an order of magnitude from about 30 miles to several hundred miles.

Colorado Supreme Court Rules On General Jurisdiction And Tag Jurisdiction

In the case of Magill v. Ford Motor Co., 2016CO57, decided today, the Colorado Supreme Court has enshrined in Colorado precedent two major new rulings on jurisdiction over corporations, both of which make it harder to sue corporations.

The case involves the Magills were injured in a car accident with an El Paso County man in Douglas County, where they resided.  They sued the other driver for negligence and also Ford Motor Company on a product liability theory.  By including a Colorado defendant in addition to Ford Motor Company, and by suing on state law tort claims, they escaped federal court jurisdiction. Under the traditional law of "general jurisdiction", Ford Motor Company could be sued on any subject in any state where it had a permanent office or permanent agent, and resided in the state at the location of each of its permanent offices including that of its registered agent in Denver.  So, the Magills sought to sue in Denver, which had a favorable jury pool and was convenient for many lawyers since the Ford Motor Company defendant could be considered to reside in Denver.  But, while this approach would have worked in 2006, it failed in 2016.

First, the Colorado Supreme Court rejected the doctrine (called "tag jurisdiction"), applicable in cases where individuals are served with process, that serving a defendant with process in a state gives a court in the state where the service of process took place, jurisdiction over the defendant even if the defendant has no other connections to the state.  This mirrors a 9th Circuit case reaching the same conclusion in 2014 (the same post notes that the 9th Circuit also reached the same conclusion regarding the jurisdictional effect of having a registered agent in the state).

An important subset of this ruling, partially related to its second holding, is that registration of an agent for service of process in a state, which had originally been required by states of corporations doing business in the state so as to give the state's jurisdiction over the corporation, is no longer sufficient to confer general jurisdiction over the corporation.

Second, following the lead of the U.S. Supreme Court in the case of Daimler A.G. v. Bauman, 134 S. Ct. 746 (2014) (covered in this post when it was decided), the Colorado Supreme Court has applied the doctrine that "general jurisdiction" over a corporation, which previously allowed suit on any subject to be brought against a business in any state in which it had a regular office or agent for the conduct of business, is now limited to jurisdictions where the corporate defendant is "at home" which basically means the state where it is incorporated or where its headquarters is located.  Thus, Ford which is incorporated in Delaware and has its headquarters in Michigan is not "at home" in Colorado.

It also made rulings on venue under the Colorado Rules of Civil Procedure, holding that the City and County of Denver was not a proper venue, despite the fact that Ford had an agent for service of process in the county, when the underlying car accident took place in Douglas County (a Denver suburb) where the Plaintiffs also resided, and the other driver was an El Paso County resident.  Thus, the neither the address of the agent for service of process for Ford nor the location at which the service of process was secured, was sufficient to establish venue, in addition to being insufficient grounds to establish general personal jurisdiction.

The Colorado Supreme Court remanded to allow the Denver Court to transfer the case to a new venue (presumably Douglas County where the accident occurred, although El Paso County would also be proper because a defendant resided there), and then to determine if Colorado has "specific" personal jurisdiction over Ford Motor Company due to the connections of the facts of the particular case to Ford Motor Company (which is almost surely will, because the accident took place in Colorado).

In this particular case, the only practical effect will be a new judge in a different county not terribly far from the one where the suit was brought originally (which will actually probably be less convenient for Ford Motor Company's out of state legal team than the original venue, but critically, will have a more defendant friendly jury pool in either Douglas County or El Paso County).  But, the precedent will come up in almost every lawsuit against an out of state corporation brought in Colorado.

The decision was unanimous, because its central holding was largely foreordained by the U.S. Supreme Court and the collateral rulings made which were not dictated by that ruling, will make the related doctrines much simpler than if they had gone the other way (possibly also tempting the U.S. Supreme Court to take up the case to review it).

Reasons To Fear Election Season

* The risk of Trump being elected is much greater than the risk of losing a round of Russian roulette. Nearly 20% of Trump supporters disapprove of President Lincoln's decision to free the slaves. Racial resentment is the best predictor of support for Trump.  There are twenty-three states where Trump is favored to win, although this support is exceptionally weak this year in many of those states.

There mere fact that one candidate is more likely to win than another candidate does matter, because a future with President Trump is a dystopian one.  Another fault - Trump is overeager to use a nuclear weapon in war. 

But, even more frightening is the fact that so many Americans have such awful beliefs and that Trump has liberated them to stridently support those abhorrent beliefs that even conventional Republican politicians had publicly disavowed. Trump has legitimatized racism. Trump has legitimatized xenophobia and anti-Muslim hate. Trump has pushed many Republicans to decide that they don't care about corruption or bigotry. Trump has legitimatized support for torture. Trump has undermined perceived U.S. support for NATO which has made the alliance less effective.

In other words, this election season has undermined the range of issues upon which there is a political consensus. And, this election season had completely undermined the norm of civility in politics, which was a process value that many conservatives in the Republican party had long supported.

* The Presidential election process coincides with the process of renewing the ranks of political party officials, so the Republican party will now have a glut of Trump supporters, which could sustain the transformation of the Republican party towards a white nationalist far right party.

* Indiana Governor Mike Pence, Trump's running mate, is a more conventional politician, but every bit as hateful as Trump himself.  So, should scandal or lack of interest cause Trump to cease serving as President, the alternative will be no better.

* This is an election where the people in the states who know the candidates best don't like them.  As of today, Clinton has only a 7.8% chance of winning Arkansas and that is probably inflated by some poor statistical choices in the model I'm relying upon. Trump has only a 1.7% chance of winning New York (both estimates are per 538).

* Even if Clinton becomes President (as is likely by a large margin) and even if the U.S. Senate shifts to at least a 50-50 partisan split (which is reasonably likely), the Republican party is likely to retain control of the U.S. House of Representatives, which means more years of deadlock.  And, usually, the party that does not control the Presidency is the one that makes gains in off year elections.  If Republicans hold both the House and the Senate, the deadlock could be even more severe and long lasting.

* The vast majority of seats fill by the public on election day are in state and local government.  And, voters in these elections are overwhelmingly grossly under informed accord to a study by Professor Steve Rogers of Saint Louis University. There is almost no voter imposed quality control at the state and local level.

[V]oters don’t make decisions about whether to reelect their state lawmakers because of their specific policies, campaign promises, voting records, or any of the other things you’d normally expect to be relevant to their position as local lawmakers. That’s because the politics of statehouses turn out not to be local at all. Instead, Rogers finds there’s one major factor in deciding who controls the statehouse: the popularity of the American president. . . .

We have an idea of American democracy that goes something like this: The Constitution gives different politicians oversight over different governmental bodies, which in turn affect citizens at the national, state, and local levels. 

The politicians who control these different governmental bodies are, naturally, different people. So if a state lawmaker is doing a crummy job or passing unpopular legislation, her constituents can punish her individually at the ballot box. 

There’s just one problem: This seems to be not at all what really happens. . . .

[J]ust 1 percent of local news is about statehouse news. The vast majority of local coverage — more than 60 percent — is instead about the presidential election, one study found. 

Fewer than 20 percent of voters can identify their state legislator, according to a Vanderbilt study published in 2013. An even higher number have no opinion about whether said legislator is doing a good job. . . .

Voters are about 6 percent more likely to vote against their state lawmaker if they disapprove of their state legislature, and they’re about 9 percent more likely to do so if they disapprove of their governor.  . . . . Rogers looked at a big data set of online polling from the 2008, 2010, and 2012 elections. He found that voters were more than 40 percent more likely to vote against their state lawmaker if they disapproved of the president. (That controlled for the pull of partisanship, or voting against a lawmaker because he or she is a member of the opposition party, according to Rogers.) Overall, attitudes toward the presidency were more than three times more important for a legislator’s reelection bid than attitudes toward the state legislature itself. . . . 

Even earlier in the process, it turns out that state legislators are much more likely to face a challenge at all if they belong to the party of an unpopular president. (This turns out to be a big deal because only 33 percent of them get challenged at all.) 

This is somehow still true even when the president is not on the ballot. . . .  And it’s not just the Obama administration — Rogers looked at data going back decades. 

"This happens across every president," he says. "The relationship between presidential approval and seat change emerges for pretty much any set of elections since we have been measuring presidential approval." 

Simply being a member of the president’s party increases the odds that state legislators will get a challenger by about 4 percent. By comparison, overseeing 4 percent growth in your state’s economy — a feat in only a tiny handful of states — increases your chances of avoiding a challenger by just 4 percent. . . . "State legislators have relatively little control over their own elections."

Those of us who are familiar with political science and have worked in electoral politics, of course, have long known that this was the case. The myth that local government is closer to the people and is more accountable is completely false.

Perhaps the saving grace of this analysis is that partisanship does matter in partisan races, and for something on the order of two-thirds to four-fifths of voters (the former based upon formal partisan affiliation and the latter including independent voters who are leaners), a candidate's partisan affiliation is highly informative of which candidate the voter would prefer if given full information in a partisan general election race.  Ironically, even most people who are very well informed about politics would make the same decision if they had only a political party cue, because more informed voters also tend to be more partisan voters.

Likewise, the fact that so many races are uncontested in general elections is largely a combination of the fact that partisan affiliation is so salient and that gerrymandering insures that a large share of all partisan electoral districts (including whole states and whole counties) overwhelmingly favor one political party or the other.

In other words, partisan electoral politics are a dull instrument. They allow voters to favor one of two major political parties or the other, but very little else.

It is particularly dull because there is a strong norm among voters who have a say in whether incumbents are renominated to represent the party for another term in an election, to support the incumbent absent the most egregious scandal on the part of the incumbent. So gerrymandering and the incumbency preference of party nomination voters combined, make incumbent partisan politicians almost impossible to remove in the absence of term limits outside the small minority of competitive electoral districts.

Thus, voters have very little practical impact on whether particular state and local elected officials are effective at their jobs, whether state and local governments are well run by legislatures, and very little ability to discern if they are effective.

Now, in non-partisan races, and in competitive partisan races, truly uninformed voters aren't a horrible thing, because so long as they either abstain from voting in races about which they have no informed opinion, or vote in a manner that is effectively random, even a small informed minority, perhaps 10% of the electorate, for example, that had an informed basis upon which to vote would keep us in good leadership.  And, the tradition of well informed newspaper editors (who, after all have read all of the stories related to the candidates and usually having interviewed them as well) make endorsements that are a primary source of information for lots of "informed voters" allows the local media become kingmakers imposing a non-coercive means of quality control in down ballot elections.

But, if otherwise uninformed voters do vote in races they know nothing about and do base their decisions on Presidential popularity, which is not a directly relevant factor, this slightly informed preference can swamp the influence of the minority of better informed voters in an election.

Consolation Prizes

* A first female President would be a landmark and could cement a liberal leaning Supreme Court for the foreseeable future.

* Trump could drag down ticket Republicans down with him, leading to more Republicans in Congress and in state government.

* A landslide Clinton victory could discredit "Trumpism" in the Republican party for a long time and encourage reforms that would make the Republican party a more civilized and decent party.

* Trump may have poisoned a generation of Hispanics, Muslims, and other demographics with significant conservative political views against the Republican party. If the GOP makes a long term lurch to the farther right, it could lose the center it needs to hold power in many key state and in Congress.

See also my 2010 post on Meaningless Elections.

The South Was Opposed To Giving Women The Right To Vote

The geographic boundaries of opposition to civil rights have changed only modestly in the last 97 years.

The 19th Amendment gave women the constitutional right to vote. As required to propose a constitutional amendment, more than two-thirds of the U.S. House of Representatives supported the amendment.  But, it was opposed throughout the Southern states, almost uniformly.  The vote was held on May 21, 1919.  The amendment subsequently passed by the required two-thirds majority in the U.S. Senate, and was ratified by the states on August 18, 1920.  Many states, including many that had previously rejected the amendment (in some cases decades later), subsequently ratified the 19th Amendment after it was a moot point.

The House had previously voted by the required two-thirds majority, but with a much narrower margin on January 10, 1918, but the Senate narrowly rebuffed that attempt.

It is fair to infer that if the South had been allowed to secede in 1861, that the Confederate States of America would not have granted women the right to vote until long after 1920, if it would ever have done so at all (which the global experience suggests that it eventually would have).  Many Southern states symbolically ratified the 19th Amendment in the period from 1941 to 1984, and it would have taken until 1984 if the ratifications were made at the same time in an alternative history, for the measure to receive the necessary supermajority approve in the Confederate States of America.

Hickenlooper Still Awesome

Gov. John Hickenlooper put aside a self-professed fear of heights and rappelled from the rooftop of a downtown Denver skyscraper Thursday to help raise money for the Cancer League of Colorado. 

Hickenlooper, donning an orange Broncos jersey, went “Over the Edge” of 1600 Glenarm Place, a 32-story, 384-foot tall residential tower on the 16th Street Mall.

Via the Denver Post.

IRS Same Sex Marriage Laws Take Effect

New tax regulations providing for same sex marriages under U.S. tax laws took effect on Friday.

Knowledge Creates Heroes; Ignorance Creates Victims

2 teen boys in Pennsylvania are being hailed as heroes after they halted a kidnapping on their bikes. Temar Boggs and his friend recognized Jocelyn Rojas’ face from her 'missing' posters just hours after she’d been abducted off her front lawn. The teens were quick to chase Rojas down, and the little girl is now safe with her family.

Law enforcement, perhaps due to its para-military character, loves to keep the public in the dark about active investigations.  But, sharing information with the public converts the public into an army of potential heroes from an army of potential victims.

Pitifully Small Criminal Justice Debts Are Devastating If You Can't Afford To Pay Them

One 13-year-old in Arkansas who could not pay several hundred dollars in fines for truancy, the report found, spent three months in detention instead. 

In another practice that deepens inequities, about 20 states charge fees to have juvenile records expunged or sealed; in South Carolina, for example, juvenile offenders must pay more than $300.

Just as in the area of bond payments, which keep people incarcerated for months or years pending trial if the defendant can't afford to pay the bond, juvenile court cost debts as small as $200 can mean a year or more of additional probation, or worse, if the defendant can't afford to pay them. It is hard for someone used to small fines not being a big deal to realize what a big deal they are if someone can't afford to pay them.
The New York Times story linked above links to a recent report out of the Juvenile Law Center that corroborates the findings.

Why Do Words Become Unpopular?

The word "impenetently" means almost exactly the same thing as the word "remorseless" and "unrepetenant", with very little difference even in connotation.

Could that be the reason why "impenetently" is almost never used, while "remorseless" and "unrepetenant" are relatively more commonly used words?

How many sets of words that are such close synonyms exist in the English language?  Is English typical or atypical in this regard?

If two or more words mean almost the same thing, will some of them eventually win the war to be used more often while others fade into disuse?

Could the winner have something to do with the fact that "impenentently" could be more easily confused with another relatively common word, "impertinently", while "remorseless" and "unrepentant" have no false friends?

Could it be that the prefix "im-" has fallen out of favor, while the prefix "un-" and the suffix "-less" have been more popular?

Also on the language front, the English language, in practice, has very specific rules about the order in which adjectives are used in a sentence that native users almost universally follow even though they have no idea that they are doing so and they are not consciously aware that the rules exist.

Life Jackets Save Lives

Most recently a twenty-three month old baby was saved by a life jacket that kept her head above water while she was trapped in an air pocket in an overturned boat.

Who Creates Works Protected By Copyright In The United States?

A new, first of it kind, empirical study of copyright registrations in the United States provides detailed demographic information and related analysis regarding the authors of protectable works. The report reaches its conclusions by "statistically analyzing the 15 million entries that comprise the Copyright Office’s full record of registered works from 1978 through 2012."