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PaperclipPerfector  1yr ago (text post)   36339 thread views

Culture War Roundup for the week of April 10, 2023

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Don't sleep on this excellent Caplan piece. The man is a national treasure.

In "Lawsuits are the Hitman of the State," Caplan makes the case that the Texas "Heartbeat Act" is functionally equivalent to workplace discrimination laws that punish racist or sexist remarks.

(One thing I would be interested to see further discussion from Caplan on is the development of the idea that having a "job" is a "right," but he doesn't go into that in this piece. Basically, the Constitution is a document of enumerated powers, meaning the federal government can't--in theory--do anything the Constitution doesn't explicitly allow it to do. But the judicially-crafted breadth of the Fourteenth Amendment, combined with loose interpretation of the Commerce and Tax-and-Spend clauses, metastasized through the 20th century into today's rather grabby American legal system. This has given rise to the idea that you haven't just got a right to your own labor, but that you have a right to personally profit from other people's capital, at their expense, even if you contribute nothing of value to the enterprise.)

Something I really like about Caplan is how concise he manages to be while making absolutely cutting points:

The government starts with the blatantly illegal goal of banning “bigots from expressing their opinions in a way that abuses or offends their co-workers.” Then instead of respecting those limits, the government’s judicial branch gets creative: “Murder’s illegal? Fine, we’ll hire hitmen instead.” By affirming liability, it dangles piles of cash in front of potential plaintiffs to terrorize employers into banning what the government, legally, must allow.

Precedent on what counts as "government action" is remarkably unhelpful in understanding these things. Georgia v. McCollum (1992) is all about how a defendant in voir dire acts as an organ of the state when they select their own jury, and therefore are forbidden from considering race when seeking to exclude potential jurors. This, even though in virtually every other regard, as Justice O'Connor then noted, "our [past] decisions specifically establish that criminal defendants and their lawyers are not government actors when they perform traditional trial functions." Whether any particular action counts as "government action" proscribed by the Fourteenth Amendment does not seem to depend at all on who actually took the action, in other words, but only on how the Court wants the case to come out.

So I think Caplan is dead on, here--the Civil Rights movement basically shredded any kind of principled interpretation of the Fourteenth Amendment, in pursuit of socially-engineered results.

Georgia v. McCollum (1992) is all about how a defendant in voir dire acts as an organ of the state when they select their own jury, and therefore are forbidden from considering race when seeking to exclude potential jurors.

Every time that I think I've read the most tortured, dishonest bullshit from a legal expert seeking to arrive at whatever conclusion that they wanted based on their personal feelings, someone calls to attention an even more ridiculous example. This decision really is breathtaking in its utter mendacity and inclination to oppress people that are on trial. I knew that racial discrimination in voir dire had become illegal at some point, but I didn't realize that it was by declaring that the person who is under attack by the state is conscripted into being an arm of the state themselves! The reasoning for granting the state standing is also remarkable:

(d) The State has third-party standing to challenge a defendant's discriminatory use of peremptory challenges, since it suffers a concrete injury when the fairness and the integrity of its own judicial process is undermined; since, as the representative of all its citizens, it has a close relation to potential jurors; and since the barriers to suit by an excluded juror are daunting. See Powers, 499 U. S., at 411, 413, 414. Pp. 55-56.

Frankly, if this constitutes a basis for standing, I have to say that any claims that a litigant ever lacks standing are bullshit, always and forever. If a defendant selecting a jury that is more racially favorable to them constitutes a "concrete injury" to the state on the basis that the state represents all citizens, this is a fully general argument for state standing in every possible example I can think of. I'm sure some brilliant legal mind can explain why that's definitely not the case and my blunt response is that they're simply lying.

My state's supreme court has held that invocation of racist stereotypes, such as suggesting that a person is looking for a windfall, or that a person's employer may not be an unbiased witness, is always grounds for a hearing for a new trial, and at the hearing the burden is on the other party to prove that race was not a factor in the jury's decision.

There are no bounds on this, so if the matter in question happens to be whether a Chinese man peed in your Coke, he'll always be entitled to a new trial based on descriptions of his actual behavior.

https://www.courts.wa.gov/opinions/pdf/976724.pdf

Henderson moved for a new trial or additur on the ground that the repeated appeals to racial bias affected the verdict, yet the trial court did not even grant an evidentiary hearing on that motion. The court instead stated it could not “require attorneys to refrain from using language that is tied to the evidence in the case, even if in some contexts the language has racial overtones.” 1 Clerk’s Papers (CP) at 180-81.

That reasoning gets it exactly backward. In ruling on a motion for a new civil trial, “[t]he ultimate question for the court is whether an objective observer (one who is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have influenced jury verdicts in Washington State) could view race as a factor in the verdict.” State v. Berhe, 193 Wn.2d 657, 665, 444 P.3d 1172 (2019). A trial court must hold a hearing on a new trial motion when the proponent makes a prima facie showing that this objective observer could view race as a factor in the verdict, regardless of whether intentional misconduct has been shown or the court believes there is another explanation. At that hearing, the party seeking to preserve the verdict bears the burden to prove that race was not a factor.

...

During closing arguments, Thompson’s counsel alluded to racist stereotypes about Black women as untrustworthy and motivated by the desire to acquire an unearned financial windfall. Defense counsel argued that Henderson’s injuries were minimal and intimated that the sole reason she had proceeded to trial was that she saw the collision as an opportunity for financial gain. Id. at 1195 (“And it seems pretty evident that the reason we’re going through this exercise is because the ask is for three and a half million dollars.”), 1198 (arguing that Henderson did not inform one of her doctors about the collision soon enough “because $3.5 million hadn’t coalesced in her mind yet”). Defense counsel’s argument that Henderson was exaggerating or fabricating her injuries appealed to these negative and false stereotypes about Black women being untrustworthy, lazy, deceptive, and greedy.

...defense counsel argued that Henderson’s chiropractor was likely to lie for her because they had more than just a doctor-patient relationship, implying that hiring her to work in his office demonstrated impropriety in their relationship. This strategy could open the door to speculation that plays directly on prejudice or biases about race and sexuality.

Minor note: for me "to go Dutch" means to split the bill, not to avoid paying. I guess in the sense of date your phrasing fits too.

I am guessing you are quite tall and like bicycling and ice skating on canals. In many parts of the world, the expectation is that one party pays for entertainment. Only in the Netherlands, and among horrible people elsewhere, is there an expectation that a bill will be split. This seems weird, but it possibly dates back to gift culture. I know that staying for dinner is a horrible faux pas in the Netherlands while it is utterly expected in other places. Many cultures make a huge effort to be hospitable to others, with crazy gift cultures, always bringing food to an event, always buying rounds of drinks, and other patterns like this. The Dutch really are out of step with most places, especially outside Hajnal line North Western Europe.

Bill splitting is quite common in the US (and the phrase "going dutch" obsolete).

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