Rov_Scam
11hr ago
Yes, and that's almost certainly the definition that you operate on, and that Marsha Blackburn operates on, and that Ketanji Brown Jackson operates on, despite her insistence that she doesn't operate on any definition besides perhaps a legal one. We can talk definitions until the end of time, but in the real world, when we have to make a decision whether to call someone sir or ma'am, we aren't asking to see their genitals or for chromosomal testing results and instead make a snap judgment based on their appearance.
I was a history major in college, and one of the biggest problems I have with non-professional pop historians (Howard Zinn, Jared Diamond, etc.) as opposed to academic historians who actually have formal training is that the former tend to invent just-so stories and compile evidence to support them, as though the truth of a thesis is determined by the number of footnotes. Meanwhile, there is so much counter-evidence available to anyone who does even a cursory investigation that the entire thesis can be dismissed entirely. One of the problems I always had with history writing is that every time I thought I had to develop a thesis I'd inevitably have to retool it after finding something that didn't fit, which happened about sixteen times per project. Hell, to give you a sneak preview to the next Pittsburgh series installment, I was researching the City Beautiful movement from the late-19th and early 20th centuries. The classic story is that the movement was inspired by the White City at the 1983 World's Fair in Chicago, but supposedly those in the know know that the real inspiration for the movement was the 1901 McMillan Plan to redesign Washington, D.C. Except a good number of buildings supposedly built as part of the movement predate the plan, and eliminating them seems wrong. Then again, there were antecedents and it only makes sense that they would get merged with the new movement, and now I've spent two hours researching a point from an introductory section that will nonetheless inform how I treat the rest of the piece. This is especially difficult because my normal instinct would be to "teach the controversy", which means writing six paragraphs to go in-depth on the history of a city planning movement because I want to use the movement's precepts as a framing device to describe a neighborhood. It's frustrating as hell, and it happens all the time. It would be a lot easier if I just put blinders on, limited myself to one sentence "The City Beautiful movement started with the White City at the 1893 World's Fair in Chicago" and forgot about it. But then I might just be repeating a myth, and that's the last thing I want to do, put myself in the same league as Jared Diamond even though the stakes are a lot lower.
Rov_Scam
12hr ago
Okay, but I'll ask this question for the millionth time – what is gender identity?
When Marsha Blackburn asked Ketanji Brown Jackson for her definition of a woman during her confirmation hearing, Jackson gave a weasely answer that satisfied nobody and caused a minor kerfuffel over her need to defer to a medical professional a determination that the average person can make in five seconds. If Jackson wanted to turn the tables she should have confidently asserted that a woman was someone, anyone, who made it clear that they wished to be treated as such, whether explicitly or by adopting conventional gender norms. If Blackburn were smart she would leave it right there and change the subject, but she's a senator, and it's unlikely that she'd be able to resist pressing the issue further. Hell, in the real case she could have left it at that but had to press the issue further.
Since we all know that no definition that doesn't involve genetics or genitals is unacceptable to conservatives, there's a strong likelihood that the senator would have prodded in that direction, at which point Jackson could have told Ms. Blackburn that she assumed that she (Marsha Blackburn) was a woman despite never having seen her (Marsha Blackburn's) genitals nor though much about what they might look like. At this point Ms. Blackburn has no choice but to back off and change the subject, leaving Jackson with the last word, as the subject is, for all intents and purposes, now her (Marsha Blackburn's) genitals, unless of course Ms. Blackburn really wants her genitals to be the subject of senate confirmation hearings.
Rov_Scam
18hr ago
It isn't quite analogous since adopted children don't automatically get citizenship. With most same-sex couples this isn't an issue because a typical scenario in e.g. the US would be that both the biological parent and the adoptive parent are US citizens and the child is born in the US. If a man who is a US citizen living in Europe marries an Italian widow and adopts her son, and an amended birth certificate is issued recognizing him as the father, the child will not be considered a native-born US citizen as he would if the man were the actual father. The child could get US citizenship through naturalization, but that would require the family to be living in the US. By the same token, the kid in the case in question could probably get Irish citizenship if they were actually living in Ireland, but they aren't and there's no indication that they ever plan to.
Rov_Scam
20hr ago
That's not the issue here. The child can get citizenship through the biological mother or father, but the trans person doesn't want to register as the baby's father, and Ireland will only recognize the person who gave birth to the child as the mother.
Rov_Scam
1d ago
Do people already forget the impacts of the drive to push more and more people into home borrowership twenty years ago, even resulting in significant impacts to government coffers as they were left picking up the pieces.
You don't even have to go back that far. The most recent appreciation in housing prices from the COVID era and renewed discussions on affordability directly stem from the wave of home purchases from the era of rock-bottom interest rates. It's basic supply in demand. Sale prices of homes are more reflective of mortgage payments than they are of the sticker price; it makes more sense to talk about a $1500/month house than a $250,000 house. This difference is especially clear in the Pittsburgh area, where houses just outside of Allegheny County command a price premium due to lower property taxes. If there's a class of people who couldn't afford a particular house at 7% but now can at 3.5%, the house is going to cost more.
Rov_Scam
1d ago
Right, but that equity is only useful if you're going to sell it, or you need to borrow money and can afford to make the payments. If I were to buy a $100,000 house tomorrow, and I make the kind of money for which the loan is comfortably affordable but not so much that I could comforably afford a house worth much more than that, being able to borrow $900,000 isn't much of an advantage. Maybe if circumstances change such that I need to borrow money and I can get a better interest rate on a HELOC than I would on a personal loan, but even then the origination fees combined with the fact that the bank now has a lien on your house makes it a questionable decision unless the circumstances call for it.
Rov_Scam
2d ago
It's common, but I don't think you realize how many motions are filed in a typical case. Not many come with opinions, even the contested ones
Rov_Scam
2d ago
Except no such category of cases exists. There are categories of cases that are more likely to get an opinion, but that's no guarantee that you're going to get one, even if the trial judge really likes to hear himself talk. I have had a few cases where the judge wanted us to provide additional briefs on a relatively new argument we were making and I thought he might issue an opinion but he didn't, even though he seemed interested in the legal basis of a hearsay exception that he made up himself.
Rov_Scam
2d ago
Let me offer a fanciful hypothetical (perhaps not as fanciful as a hypo about the Alien Enemies Act and the British invasion). Imagine that a federal judge decided that he would no longer offer any rationales for his decisions. He would simply invite the parties to court, listen to their arguments, and announce a judgment for the plaintiff or the defendant from the bench, and then adjourn court. Following that oral order, the clerk would enter a judgment for the prevailing party. The judge explains that he only needs to issue an order, and no statute requires him to explain his reasoning. The Circuit Court consistently reverses this judge's rulings, and grants writs of mandamus, but the judge continues his practice.
Sometimes I wish the Volokh conspiracy contributors wouldn't make it so patently obvious that they never practiced law a day in their lives.
Rov_Scam
2d ago
No, one wouldn't expect that. Orders from trial courts seldom come with opinions. I file hundreds of motions per year and exactly zero have ended in a written opinion. If I'm lucky I might get an explanation from the bench. Usually the judge doesn't say anything but that he'll take it under advisement and he signs an order prepared by counsel a week later.
Rov_Scam
2d ago
Orders from trial courts only rarely contain opinions. The judge decided to write a brief opinion critical of the administration from putting him in a position where he had to issue the order. Why? Because he can. Judges make performative comments like this all the time, it just usually happens during motion arguments when nobody is there but the court staff and the attorneys.
Rov_Scam
3d ago
The 1948 Act's original purpose had nothing to do with churches; those attacks didn't start until the 1960s. It was originally passed in 1870 in the wake of the Fifteenth Amendment and was revised in 1948 after renewed intimidation campaigns to prevent blacks from voting. I'm not aware of any cases that don't involve the right to vote, though there may be some. That particular count fails for two reasons. The first is that the statute requires a specific intent to violate a particular right. There's no evidence that the protestors specifically entered the church because they wanted to prevent the congregation from being able to practice their religion. To the contrary, pretty much everyone agrees, and the indictment even admits, that the intent of the disruption was to protest ICE; interfering with a church service was an incidental consequence. If I beat a guy up and he can't vote the next day because he's in the hospital, it certainly interferes with a civil right, but it's a lot different than if I beat him up specifically to prevent him from voting.
The more crucial reason, though, that the statute doesn't apply here, is because it generally doesn't apply to rights where the only constitutional protection is from state action. If a group of people is protesting on the street and counterprotestors show up and disrupt the protest, they're certainly interfering with the first group's First Amendment rights in much the same way that the anti-ICE protestors were interfering with the practice of religion when they disrupted the church service, but there's no civil rights violation there. The same holds true if it were a sanctioned protest on private property (say, in a shopping center parking lot) that was being disrupted.
Rov_Scam
3d ago
I don't know that a trespassing charge would stick here. I can't speak for the particularities of Minnesota law, but PA has three basic categories of trespass:
- Criminal Trespass, the most serious, which involves breaking into buildings.
- Simple Trespass, the least serious, which involves entering property with the intent of causing damage to the premises
- Defiant trespass, which involves either entering property that you're clearly meant to be kept out of (like if it was posted or there was a fence), or not leaving at the request of the owner
The only category that would apply here would be defiant trespass, since the church was ostensibly open to the public. In the video, the pastor politely asks Lemon to leave and then walks away. Lemon leaves 7 minutes later. Again, I can't speak for Minnesota, but most of the cases where someone is prosecuted for defiant trespass in PA involve someone ignoring repeated demands to leave, and then remaining there until the police show up. Realistically, the police aren't going to prosecute based on video evidence or testimony unless they're in a very small town with nothing else to do. When I had my own practice I would occasionally get calls about people who caught poachers on their property and wanted to sue them. In these cases they always called the police, who weren't about to run plates and arrest people who had already left (they were usually caught coming out of the woods). Lemon might be guilty of defiant trespass withing the strict letter of the law, but he might not, and the case is blurry enough that most police and prosecutors don't think it's worth the hassle. In PA refusing an order to leave is a misdemeanor which will probably get you six months probation. I'd expect that if a prosecutor were willing to push a case like this he'd probably bargain it down to a summary offense, which would be in line with ignoring a posted sign.
Rov_Scam
3d ago
And here they make the same settlement offer. The only difference is that if he declines, the IRS files a pretrial motion that would limit statutory damages and you'd get the same result. The only difference is the matter of attorneys fees, but at that point the IRS wouldn't really have that many because it's a straightforward case without a lot of complicating factors. The only really issue is the statue of limitations, but that's just a couple motions and an argument in front of a judge.
Rov_Scam
3d ago
The amount he collects is likely to be minimal. The statute that he is suing under allows for the greater of statutory damages of $1,000 per disclosure or actual damages. He would have to prove actual damages, which would be complicated, time consuming, and would require him to disclose the details of all of his business wheelings and dealings during the relevant time period, and then prove with a reasonable degree of certainty that he lost a particular sum. It can't be "my reputation was harmed and I recon I would have made billions if not for these disclosures"; it would have to be more like "I had a deal in place that was worth $x and I lost that deal after the inappropriate disclosure". This is made even more difficult by the fact that the tax returns were only disclosed to media outlets, who didn't actually publish the returns but merely reported on their contents. Additionally, Trump is the last person in the world to claim that anything in his tax returns would actually be embarrassing, so he's relying on a theory that he suffered reputational damage by the media outlets mischaracterizing the returns. It should also be noted that in cases where courts have awarded actual damages
So it's no surprise that he isn't going for actual damages here, which is odd if you read the complaint because most of it is a long whinge about how the New York Times unfairly portrayed his financial situation. He's going for statutory damages of "at least ten billion" on the theory that every time somebody read an article about the returns it counted as an unauthorized disclosure. This is almost certain to fail, as courts have consistently ruled that it's based on the number of times the discloser reveals the information and not on how many people see it; if the guy had put the returns on a slide projector in a room of 200 people, it would be one disclosure, not 200. So we have disclosures of tax returns to two outlets. It's unclear how many returns were actually disclosed. If we assume for the sake of argument that he disclosed 20 years of returns to both outlets, that would be $40,000 in statutory damages.
The complaint also asks for punitive damages, and the facts of the case seems to support them. However, Federal courts usually award these as a multiple of compensatory damages, and at a rate of 2/1 this would get an additional $80,000. So $120,000 total, which is money I'd like to have but a far cry from ten billion.
Rov_Scam
4d ago
Both Europeans and Americans who favor tort reform like to point this out all the time, but I honestly don't think it would have too much of an effect on the current system. Yes, defending litigation is expensive. But so is suing people. You have a frivolous lawsuit you want to file? Good luck finding an attorney to take it on contingency. Even if the attorney can minimize the amount of time spent on the case and only file necessary motions, you're going to need at least one deposition and at least one expert if you expect to win through anything other than early settlement (which is usually at enough of a discount that most plaintiff's attorneys aren't interested), you're already looking at close to ten grand just in costs. Since the attorney has to recoup the costs from somewhere, and doesn't like to work on cases and not get paid, the standard 1/3 contingency isn't going to apply unless the lawyer is reasonably confident that the case will settle for more than it costs to pursue. That means that if you want to file a questionable suit you'd better be prepared to pay your attorney by the hour and front the costs of all the expenses.
When people talk about frivolous lawsuits, they're often talking about lawsuits where they didn't like how much the plaintiff was awarded, like the McDonald's coffee suit. But these aren't frivolous by definition; the plaintiff won, so there wouldn't be any compensation for attorney's fees in any event. Cases like these would actually be more expensive for the defendants, as the plaintiffs could then go to the court with their hours and rates and bills from all the experts and depositions and such and tacked on a few tens of thousands to the verdict that wouldn't go away on appeal.
Further complicating this is that most normal people who get sued will be sued in situations where either auto or homeowner's liability insurance will cover the costs of both the attorney and the settlement, so they aren't directly impacted by any reforms. The same is true of most businesses; if you slip and fall in the Wal-Mart parking lot, the settlement isn't coming out of the corporate checking account except to the extent that it might have an effect on their premiums. The primary beneficiaries of such a system are insurance companies, who absolutely despise having to pay settlements and legal fees. But general liability insurance is already cheap enough that most companies wouldn't see their premiums appreciably lowered by that kind of reform (medical malpractice is the exception, though plaintiff-side claims are expensive enough that there's very little frivolity to be found here). The tradeoff is that normal people will find it even harder to get compensation than it already is, as it just raises the already high bar for how much a case needs to be worth for an attorney to take it. And I say all this as someone who does civil defense work.
The only instance I see where the process can seriously be abused is when wealthy people like Trump use their ability to pay to bully normal people into settling rather than fighting. But this doesn't happen very often, and when it does happen it's usually in a few select areas that can be addressed through more targeted legislation, like anti-SLAPP statutes. I wouldn't even be opposed to a wider procedural change that required you to show evidence that a case wasn't frivolous, or gave defendants a mechanism to require such a showing, and to award attorney's fees if evidence is lacking. But it's probably better to leave this for specific situations, since it most cases it would simply be a waste of time.
Rov_Scam
4d ago
I haven't seen the video so I'll take you're word on what's in it. That being said, the SAFE Act would only seem to apply if he is doing something to threaten people or restrict egress from the building. He's certainly guilty of whatever the Minnesota equivalent of what would be Defiant Trespass in Pennsylvania, but that's a state level charge, and as far as I can tell there aren't any Federal trespass laws that don't involve Federal property or otherwise apply in very specific situations.
Rov_Scam
4d ago
I think it comes more down to whether he was engaging in activity that is objectively illegal, since an observer would presumably be less likely to actively obstruct or threaten someone. If he were simply standing there quietly it could even be argued that any requests to vacate the premises were not directed to him, insofar as he was not acting any more disruptive than any member of the congregation. It all depends on the specifics of what they can prove that he actually did, not that he was just present while other people were breaking the law.
Rov_Scam
4d ago
Not really since it isn't some general law that's being applied in a novel way; there are specific provisions for houses of worship, presumably added to attract support from Republicans and conservative Democrats.
Rov_Scam
4d ago
At first I thought you were being sarcastic, because by your logic ICE should just get M-16s and spray crowds of protestors. Or for that matter anyone who does anything to openly oppose or disagree with any government policy you personally agree with deserves to be shot. You may wholeheartedly agree with me, in which case, to paraphrase Lincoln, you should consider moving to a place like Russia or Iran, where they don't even pretend that the citizens have any rights.
Rov_Scam
5d ago
Yeah, they can do that, but it's an argument and it might not win. The issue is that if he wanted to make that argument he'd have to surrender to Minnesota authorities and potentially spend a long time in prison while he waits for a hearing, at which point the judge might reject the argument. If he wants to remove the case to Federal court he'd have to file that motion and wait for the case to get on a trial calendar before he could even file the immunity motion.
Rov_Scam
5d ago
The state can still charge. The defendant can remove the case to Federal court, but the state would still be prosecuting,. just with a Federal judge and Federal jury. The advantage is that the judge would theoretically be more neutral and the jury would be drawn from a larger geographic area, but this is more of a consolation prize than anything . For instance, there would be a better argument for change of venire with a Hennepin County jury than with a jury that would be drawn from the entire district.
The thing about expressing a desire to be treated as such was more to account for people with an unintentionally androgynous appearance who are women under anyone's definition but for whom you wouldn't necessarily know it unless you were told. I wasn't referring to trans people who make no effort to appear as women. But when someone has a stereotypically feminine appearance, one generally assumes they are female and treats them as a woman, no? I know you probably think you can spot trannies a mile away, but I've known enough women who have a mannish appearance that I'm hesitant to start making assumptions about the shape of their genitalia. I'm guessing that for north of 99% of the women you actually deal with you don't give the matter a second thought.
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