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Notes -
Does Trump sue just to fundraise?
Throughout the early history of the American legal system, if you wanted to sue anyone in court you had to follow this arcane and inconsistent labyrinth of common law pleading rules. What we today generically call "lawsuits" were pointlessly split up into "actions at law" or "bills in equity" or whatever, all of which had different pedantic rules depending on the jurisdiction you're in (for a long time, federal courts dealing with state law had to apply procedural rules that were in effect at the time the state joined the Union). When the Federal Rules of Civil Procedure were first created in 1938, the intent was to get rid of the stodgy traditional requirements in favor of something comparatively more informal. As reflected in Rule 8, all you really need to file a lawsuit is a "a short and plain statement of the claim showing that the pleader is entitled to relief" in your complaint.
This "permissive" paradigm was put to the test in front of the same guy who was responsible for writing those new rules, Judge Charles E. Clark. The 1944 case Dioguardi v. Durning is a fun read, and involves a handwritten lawsuit filed by a guy with a very questionable grasp on the English language complaining about a customs official seizing "tonic" bottles "of great value" imported from Italy. Clark ruled that "however inartistically they may be stated" the guy was clear enough to meet the new pleading standards. For a more modern example from a much more complicated case, see the complaint that was filed in the Tesla Securities lawsuit (I know nothing about this case, just picked it at random for an example). Despite the complex subject matter and the number of people involved, the complaint is only 58 pages and is structured logically enough to make it relatively easy to follow. It establishes why the court should hear the case, some background facts, and then articulates in clear detail who harmed who and why the court should do something about it.
In contrast, compare the lawsuit that Lance Armstrong filed against the U.S. Anti-Doping Agency in 2012. The Judge took one look at the PDF, saw that it was 80 pages long, and promptly dismissed it with a "I ain't reading all that" ruling:
Since lawsuits are already a vehicle to air grievances, it's understandable when clients/lawyers try to sneak in as many parting shots as possible. Lawsuits are endowed with an aura of gravity and seriousness that a bare press release or op-ed outlining the same grievances would lack. Unless things get *too *egregious, there's not a whole lot a judges can do to stop the practice of trying to disguise a press release under a legitimate lawsuit costume.
Back in March of last year, Trump filed a wide-ranging 108-page lawsuit against Hillary Clinton and several dozen other defendants. You can read the entire lawsuit yourself here but the basic allegation is defamation over claims/insinuations that Trump colluded with Russia during the 2016 election. The complaint was later "amended" in June to include yet more defendants, and ballooned to 193 pages in the process.
The Trump v. Clinton et al lawsuit eventually got dismissed last September. For a full accounting as to why you can read the 65-page opinion but the short summary is the lawsuit was a confusing constellation of disconnected political grievances Trump had smooshed together into a laundry list of allegations that could not conceivably be supported by any existing law. For example, Trump's lawyer Alina Habba alleged malicious prosecution without a prosecution, alleged RICO violations without predicate offenses, alleged obstruction of justice without a judicial proceeding, cited directly to reports that contradicted their claims, and on and on. None of these problems are supposed to be common knowledge, but it is *very *basic stuff any lawyer filing a federal lawsuit should either know or research before they step foot on a rake. But when the defendants in this case pointed out the problems, Habba's response was to just double down instead of correct them. My favorite tidbit was when they justified why one of the 30+ defendants, a New York resident, was being sued in a Florida court (even federal courts need personal jurisdiction established) by claiming that defendant should've known that the false information they were spreading would end up in Florida, and also that they "knew that Florida is a state in the United States which was an important one."
When someone is served with any lawsuit, they have an obligation to respond or risk losing the entire case by default. In very rare circumstances (namely with handwritten complaints from prisoners with nothing better to do), a lawsuit is so patently bogus that a defendant can sit on their laurels doing nothing, confident it will get dismissed without them having to lift a finger. Before Trump's lawsuit was dismissed, a veritable legal machinery from the 30+ individuals/corporations sued whirred into action, ginning up an eye-watering amount of billable hours in the process to investigate and respond to the allegations. The judge in this case was seriously annoyed by all this and on Thursday she imposed sanctions by ordering Habba and Trump to pay everyone's legal bills, totalling almost $938,000. You can read the 46-page opinion here.
I've written before about pretextual excuses, such as when NYC *claimed *their employee vaccine mandate was for public health reasons, but then implemented exceptions that were inconsistent with their lofty claim. I argued it's reasonable to conclude NYC was lying. Similarly, Habba may claim as a lawyer that her lawsuit was to pursue valid legal remedies on behalf of her client, but when her efforts are completely inconsistent with that goal, it's perfectly reasonable to conclude she's lying. If valid legal remedies was the real goal of the suit, even someone like me --- with no experience civil litigation --- can contemplate trivial changes which would have significantly improved its success (most obviously don't wait past the statute of limitations, don't try to sue 31 different entities all at once, don't try to sue in a court that lacks jurisdiction, don't try to sue fictitious entities, etc.). So if that wasn't the real goal, what was?
The judge in this case strongly suspects the real purpose of the (bogus) lawsuit was to use it as a vehicle for fundraising. The vast scope of characters sued matches with this explanation because while a disparate cast of defendants legally frustrated the lawsuit in the courtroom, it does make for a better headline when soliciting donations (Clinton! Adam Schiff! James Comey! Lisa Page! Peter Strzok!). Trump has a pattern of filing frivolous lawsuits (like suing the Pulitzer Prize Board for defamation for awarding NYT and WaPo) and then following up with "breaking news alerts" soliciting donations for his Save America PAC, so the timing matches up. The fundraising efforts appear to be working well, with the PAC having about $70 million on hand as of last fall.
The sanction this judge imposed is the highest by far imposed on any of Trump's attorneys. It's possible this is a coincidence, but the day after the sanctions, Trump voluntarily dismissed the lawsuit he filed in Florida (??) against New York's Attorney General. I'm assuming the judge hopes the $1 million penalty will discourage further waste of time for the courts and other potential defendants, but the fundraising mechanism I described feeds itself. The higher the sanction imposed, the more urgent the breaking news alert begging for money will be.
=edited
Or, for instance, when someone writes a long comment purporting to be about the US legal system, but is really just a vehicle to take a shot at Trump.
It's less about general criticism, and more that this is ymeskhout's specific hobby horse that has been flayed for years at this point, and regularly comes with standards called for against Trump that were not followed or applied (in general or by ymeskhout personally) on the lawfare against Trump. As with other pet topics, it repeats old themes to the point of evaporative cooling, which then leverage's ymeskhout's bad habit of dismissing/forgetting/claiming prior engagements on points either didn't occur or have been dismissed, for lack of an engaged opposition to engage otherwise.
As far as Trump-related lawfare goes, ymeskhout's a partisan and an old one at this point. At this point I only pay attention when he starts being petty towards people calling him out, like how this time he edited-in a callout- against The_Nybbler and then edited it out after being called out for it.
You're not wrong, but if we modded everyone who flays dead horses, we'd have a lot fewer regulars.
(I like his posts because he explains law stuff in a lawyerly way, even if he is a bit cute sometimes when specifically criticizing Trump. But his theory that Trump is engaging in lawfare as a fundraising project does not seem unreasonable to me.)
The collapse button is helpful in this case.
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I'm not precisely sure what drives 'if we modded this' comes from, because to the best of my knowledge neither myself or the Nybbler have called for mod-hat moderation of it. I cannot speak for @The_Nybbler, but I know I did not report the post.
It's certainly an argument... but it also runs into the general point of 'and this is not new or unique to Trump,' which comes back, as many things do, to whether Trump is uniquely bad, or if Trump is getting unique censure for things that go on as a matter of course. Lawfare and fundraising is an incredibly well established practice in a diversity of forms, from non-governmental agencies like the ACLU running literal solicitation campaigns to continue legal activity broadly seen as ideologically partisan now adays to government-entangled ones such as the Obama-era practice of offering corporate settlement offers that resulted in corporations giving money to non-profits or interest groups aligned with the party of government that was taking the corporations to court. There is an entire spectrum, and entire genres of fundraising solicitation emails of '[important thing] is at court- we need YOUR money NOW!'
Which, of course, brings back to the point of distinction of when someone is accused of pretext. 'I know it when I see it' is not a credible standard when highly subjective, and 'this is a Serious Thing' is not a credible claim when contextual examples of lawfare are available that were not held to similar standards. Selective appeals or enforcement of standards are related to the concept of anarcho-tyrrany precisely because the choice to enforce them is generally pretextual. When a general category of action is widespread, the choice to enforce sanction can simultaneously be 'valid' (there is a broken rule) and pretextual (the broken rule is not the reason the sanction is being enforced).
Okay, cool, so is your complaint that he's attacking Trump in an unprincipled fashion, or that he took a poke at nybbler in the process? Because I have some sympathy for the latter complaint (and believe me, it's hard for me to muster any sympathy where nybbler is concerned), but for the former, I have none, because whether or not I agree with your criticisms, this is exactly the kind of argument that is the Motte's bread and butter.
Solely Nybbler and the edit-trolling, and I have made no request or advocacy for mod action against even that.
As mentioned in a different post, I try to no longer engage ymeshkout on top-level post topics due to my judgement of him as a bad-faith actor in iterative engagements. I don't use block lists as a general principle, so the primary instances I respond are when he [insert potentially imprecise but generally negative action] other posters.
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Really though the first three meaty paragraphs are wholly unnecessary to the post. I don’t think that should be subject to moderation but should be discouraged. Part of “speaking plainly” is getting to the point.
I do often wonder if I am overexplaining things. Because of my job, I don't think I am well calibrated on how much non-lawyers need/want something explained. I'm a nerd about minutiae like the history of civil procedure and personally find the subject interesting so when I started writing about a "bad" lawsuit, it seemed relevant to include some background on what makes a "good" lawsuit. The point, one which I probably should've been clearer about, is that we used to have this very formal and stodgy standards for how lawsuits are worded but that changed in favor of something less formal. The intent was to encourage people to speak more plainly, and I showcased the Dioguardi case to highlight how low the bar was. The risk with less formal standards is that people might ramble on, and so I thought it was relevant that courts want you to get to the point when you file a lawsuit.
All those things combined (less formality, preference for short and plain statements) showcase the challenge judges have with strictly policing the gratuitous parting shots lawyers/clients include in their lawsuits. So towards that end I highlighted Armstrong's example as a rare case of a lawsuit being dismissed for being too long, as a way to illustrate the limits of what judges are willing to put up with. The point was to set the stage for how Trump's 193-page lawsuit should be evaluated. I think if I just linked you a 200 page PDF and said "this is bad", few people would understand why.
With all that said, do you still think the intro was totally unnecessary?
I think your post is very good. It flowed well and the order of presentation made sense to me (setting the legal context up first--it could have been shorter but I greatly appreciated the history lesson; it's funny how much understanding you can get from finding out that things used to be done very differently, or are done differently in other places).
FWIW I'm not sure that asking everyone for more explicit feedback is worthwhile. I think there are multiple comments in this thread that are really desperately scrounging for a criticism and aren't engaging in good faith. Asking them what they want is pointless, because what they really want is for their opponents to go away, but they can't really say that.
Thanks, I still think asking for feedback is worthwhile because it gives people the opportunity to rebut the conclusion that they're only upset because I criticized something they like. If they refuse to do so, that's on them. If they provide helpful feedback, then it's a win for both of us.
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Yes. Because it wasn’t really about pleading. The issue at hand is lawfare. That is, the rules relating to pleading don’t really implicate why Trump lost and lost “bigly.” The second part is interesting on its own which is you (and seemingly the court) think Trump is using the court for extralegal reasons. But hey, thanks for the free content (I don’t mean that sarcastically — my comments are just my two cents).
On the other hand, I haven’t done Civ Pro since my 1L year (in a transactional practice) so perhaps not the target audience.
We might ultimately disagree on this point but I still would be interested in any thoughts you might have. How the pleading was structured seems core to my argument that it was a pretextual lawsuit from the start. I can't read Trump or Habba's mind, but I can look at the pleading and immediately notice some red flags which are inconsistent with "good faith lawsuit".
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Usually discouragement comes in the form of downvotes and feedback, which he's getting plenty of. Generally I don't think it's the mods' role to discourage prolixity.
Agreed — shouldn’t be a moderation point.
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Is there any theme discussed at this point on the Motte for which one could not make the exact same argument as the one you make against @ymeshkout?
People tend to have their opinions, which they change rarely through discussion. And culture war issues are only so many.
If your contention were made into a rule, this site would need to shut down.
This mistakes my contention. The contention is not that a position doesn't change and this should be banned- the contention is that the position is re-raised regularly without regard or even accurate reflection of previous engagements, and with poor conduct towards other in the process.
Ways to avoid this include not misrepresenting people's current positions, not mis-representing previous engagements, and not making one's hobby-horse a top level post with regular slights towards other posters.
This also describes many other regular posters on the Motte (and @ymeskhout much less so than many others I could name), and yet strangely receive far less pushback, and even provoke resentful carping when they push it too far and get modded.
Most reports we see are 100% partisan and can be summarized as "A person I don't like said something I don't like."
Both sides(tm) do this, but because of the increasingly skewed nature of the Motte, the majority is directed at people like ymeskhout expressing left-wing viewpoints.
What's strange about it?
The well established climate currated by the mods here is that not pushing back against many sorts of posters is a survival strategy, as the sorts of posters who would push back strenuously against the Darwins or Julius's of the motte were also the ones more likely to be banned than the Darwins or Julius's of the Motte. When moderates have open commentary on calibrating mod action based on political composition of forum, or accuse censored posters of ban-worthy tresspasses while simultaneously not doing so, it creates a pretty clear climate of what is more or less acceptable, and 'more pushback' is often the less acceptable path for long-term motte posters if they want to remain long-term motte posters. This is an old and well established failure state of the Motte, where bad posters both poison the culture and get the mods to ban better posters reacting against them, but this has been defended in the past an acceptable cost for the target goal of the Motte to not punish what people say, but how they say it.
But it is still a basic punitive incentive structure as enforced by the mod team, and as a consequence pushback that does occur will exist within other contextual boundaries- such as the acceptable areas of criticism such as treatment of other posters, or when it exists within the space allowed by the social dynamics of when a mod is involved. These social dynamics involved when mods don't want to be involved in moderating either other mods (internal group dynamics of people who do/have worked together for common causes, a desire to privately raise concerns out of public view) or when mods don't want to get involved in the personal non-mod disputes of a mod and other conflicts (public optic dynamics of not wanting to present mod solidarity). This creates greater conflict space- an overton window if you prefer- for more pushback to people who act within the ven diagram overlap of 'takes condemnable swipes at other posters' and 'is a mod.'
In so much as this is a problem for the broader motte space, the solution is to reduce the ven diagram overlap.
I imagine most non-quality post reports would be summarizable as 'A person I don't like said something I don't like' whether it was partisan or not. Most internet fights seeking higher sanction against another are not between people who like eachother fighting over how much they like eacother.
Is ymsekhout being criticized for expressing left-wing viewpoints, or is ymeskhout being criticized for his character in how he responded to a very minor barb about how his own post could be viewed from a non left-wing viewpoint?
"Pushing back" against the Darwins and the Juliuses never got anyone banned. Losing one's emotional equilibrium and going off on them did. I won't deny there is a failure mode here where someone very good at writing provocative posts that fall within the rules can result in some decent posters losing their shit when they can't take it any longer and getting themselves banned. On the other hand, someone who only does that once or twice doesn't get banned for very long, and Darwin and Julius both eventually got booted long-term. We have never had a great solution for getting rid of bad but effortful posters who poison the discourse without breaking the rules, and I have yet to hear proposals that don't amount to "Ban this hobby horse" or "Just admit that this person is terrible and ban them." (The latter we very occasionally do under the egregiously obnoxious wildcard rule, but every time we do it burns some of the membership's goodwill... remember, there are people who got on our case every time we modded Julius, and some of those people were not Julius's alts.)
I also do not think ymeshkout can fairly be compared to Darwin or Julius.
I am saying a large percentage of reports are "non-quality" as you put it - not people genuinely concerned about the tone and quality of arguments here, but simply seeking to punish their enemies.
Both, IMO. He writes long, effortful posts that are hard to take apart on the facts, as you'd expect when debating a lawyer, but he also criticizes Trump a lot, so a lot of people see "Long-winded criticism of Trump" which makes them angry, but they can't really muster a cogent response to explain why the criticism is wrong, but they also notice him taking a few pokes at his interlocutors, which triggers even more rage. No, I seriously do not think he would get this kind of pushback if he were writing similar posts about how corrupt Joe Biden is. (He'd get some, but not like this where you're trying to make him the new Darwin.)
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This is as good of a place as any to say. While I had nothing at all to do with past mod actions giving you and other users warnings for calling me a liar, I've strenuously disagreed with that and have asked the mod team to stop enforcing that rule with me. You are welcome to accuse me of being a liar, although ideally you showcase evidence to prove your point. You can even call me a liar without evidence if you so desire, no matter how silly that might look.
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Do you have any examples of other posters who regularly post top level threads about a singular topic without regard or even accurate reflection of previous engagements, and with poor conduct towards other in the process? Particularly examples of posters who do it more than @ymeskhout, but I'll settle for anything really.
I know you think I am an insipid partisan dick, but I would have readily pushed back against anyone repeatedly calling out other users and picking fights in top level posts, regardless of their ideology - but I haven't seen any other top level posts doing that. Did I just not want to see them?
Is this what you believe I do? I'm honestly surprised to hear this accusation coming from you. I specifically praised you in this post as a good example of someone who asked me pointed questions here which prompted productive introspection on my part. Having my beliefs scrutinized is something I genuinely wish happened to me more often. You never responded to that post (and I didn't necessarily expect you to) but I thought my responses to your questions were thorough, and I would be curious to know what your opinion on that effort is. You are also more than welcome to call me out on any other specific examples you have about me either disregarding or inaccurately reflecting on any engagements.
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Yes, but I am not going to call them out by name. Also, there are several people who rarely or never post top-level threads but will regularly go off in a subthread about their hobby horse.
Other than being slightly patronizing and snarky at times, I do not think @ymeskhout shows poor conduct. And while we discourage snarkiness and sarcasm, even from mods, it's a flaw most of us fall prey to occasionally, and piling on him for "poor conduct" because he was a little snide in responding to someone who constantly engages in bad faith partisan sniping does not move me to demand an apology.
People always think they know what I think based on my modding, and they're usually wrong.
FWIW (and @ymeskhout can confirm this) I have privately voiced my objection to this kind of "calling out" of people just because you've had an argument with them in the past. But a lot of people seem to interpret "criticizing Trump"/otherwise expressing a partisan viewpoint as "picking fights."
As a top-level post, it's not that common. As petty sniping in the threads, or in reports - it's constant.
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If Janny Duty is any indication, I'd say this is false. Most "reporting for disagreement" posts I've seen where targeted against people expressing right-wing viewpoints. Maybe if we divided each by the number of right/left leaning posters the results would come out different, but I have a hard time estimating the denominator here.
Are you talking about somewhere else where you are a mod? On a typical reddit sub, I can easily believe that's the case, but I'm talking about here.
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I asked before but I'll try again and hopefully get a more helpful answer: what information, context, link, source, claim, assertion, citation, whatever, etc. do you believe is missing from my post above?
This would be an example of you not accurately reflecting previous engagements, as the previous engagements precede your post above, and so obviously and temporally did not address it, and insinuating they did is the sort of mis-representation you stand accused of conducting on a regular basis.
I'm trying to read and understand what you're writing to the best of my abilities. I'm just asking "what am I missing?" and it's not helpful for you to play a game of riddles. It doesn't make sense why you'd waste so much time and energy evading questions with purportedly trivially obvious answers.
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I honestly don't see where ymeshkout would be representing falsely or correctly any previous discussion in this forum in his top-level post, which appears to me to simply report on recent law- and culture war related news, concerning a person of obvious political and cultural interest.
I believe furthermore that the trigger warning does accomplish the contrary of what ymeshkout states it is aiming at, and that it should go.
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Thank you for the thoughtful feedback. What do you think the post above is missing?
It's absence. Not liking Trump is fine. Regularly and consistently making top-level comments about it with poor conduct towards the posters you are a moderator for is not. The dead horse doesn't become less dead if there's more of it to beat, especially when the complaint is about the stench.
He doesn’t “regularly” make these posts. Going off memory it’s once every 2-4 weeks. The post is high quality in every way I can think of. It’s informative, relevant to the news du jour, written well and gratuitously sourced. I’m saying that as someone who would vote for Trump again (if I thought he had a chance of winning).
The nitpicking that some replies do is so annoying. I don’t see why someone would presume the right to call a consistently good contributor “beating a dead horse”. Trump is a relevant and divisive figure and so criticism of him is expected for purposes of culture war discussion. This particular avenue of criticism is novel and interesting.
It's context for the complaints that I see sometimes about egregiously bad solicitations from Trump organizations.
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Do you like my writing when I don't criticize Trump?
Not particularly, but it's considerably less one-note and lacking. Your posting is unexceptional, but you intend to insult fewer people and ignore fewer prior discussions than when you fixate on Trump unprompted.
If you meant your writing on a technical level, I find it generally poorly structured and lacking in content, conflating a lot of words with good word choice and links for sufficient sourcing. The arguments are often too reliant on insinuation by word connotation in lieu of supporting arguments, and generally lacking in the ability to anticipate or address counter arguments completely or factor in contextually relevant history while relying on narrative momentum for an emotional climax. It's passable verboseness, and I am certainly a sucker for long-winded arguments, but also leads to basic failures like overly long intros that fail the principles of effective written communication, or speaking around past and still standing counter-arguments.
And I say this as someone who is naturally prone to comma splicing and writing essays on my hobbies, and who writes more the groggier she is.
I didn't notice your edit until now, and so I'll repeat this request:
I have trouble parsing your feedback because it reads as conclusory and is lacking in specifics. If you say poor structure, poor structure how? If you say links to court documents are not sufficient sourcing, then what is? If you say arguments are too often reliant on insinuation by word connotation, what's an example of where I did that? If you say I'm lacking the ability to address or anticipate counter arguments, where did I do that? If I'm speaking around past and still standing counter-arguments, which ones? And so on. I concede that I can be verbose, but that should only make it that much easier to point out the many many flaws you claim to have identified.
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Thank you for the thoughtful and actionable feedback, you've given me a lot of useful pointers to think about and implement.
Recently my girlfriend and I took an online BDSM test and it told me that I was only 32% on the sadistic scale while my girlfriend was 76% on the masochism scale. There's a disconnect in that I'm very uncomfortable with inflicting pain on others, even though my girlfriend is actively inviting me to hurt her. I would feel a similar discomfort about someone who does not like my writing yet actively continues to subject themselves to it. I don't want to want to continue hurting you Dean. If Trump criticism upsets you and you dislike my writing so much, you might experience an increase in your quality of life with some blocking tools or word filters. All the best my friend. I love you.
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I only like it when you flatter us endlessly, like in your article about TheMotte.
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