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Noncompetes are "an unfair method of competition" and violate US law, FTC says. //
The US Chamber of Commerce said it is considering a lawsuit against the FTC if the noncompete ban is adopted. "We don't believe they have the statutory authority," Sean Heather, the group's senior VP for international regulatory affairs and antitrust, told The Wall Street Journal. "They know they are on very tenuous ground." //
The FTC also disputed employers' arguments that noncompete clauses are needed to protect trade secrets. The "record to date shows that in California, North Dakota and Oklahoma—three states in which employers can't enforce noncompete clauses—industries that depend on trade secrets and other key investments have still flourished. This shows that employers have other ways of protecting these investments," the FTC said.
Those who favor civil asset forfeiture argue that it helps law enforcement fight crime by depriving criminals of the resources used to perpetrate crimes. But, critics argue, that it is nothing more than a revenue-generating scheme. Many have criticized policing for profit, including Supreme Court Justice Clarence Thomas.
In the case of Leonard v. Texas, he laid out his case when writing his opinion. He noted that “unlike a criminal case in which a prosecutor must prove a defendant’s guilt beyond a reasonable doubt, in a civil forfeiture case, the prosecutor only needs to establish the basis for the forfeiture by a preponderance of the evidence.” //
State governments have raked in tons of cash from civil asset forfeiture. In 2017, Texas’ law enforcement took in about $50 million, which included people who were not charged or convicted of a crime. Since the state’s attorney general does not distinguish between the two when calculating the numbers, it is not known exactly how many were never charged. Since 2000, state and federal governments have taken at least $68.8 billion, according to the Institute for Justice. //
According to the Institute for Justice, the clearance rates for violent crimes tends to drop as the amount of forfeiture revenue increases. This Is largely due to the fact that when police are hunting for cash drug offenders, they are not as focused on addressing violent criminals. Moreover, the practice has not led to a decline in drug use in communities in which it is used. //
C. S. P. Schofield
6 hours ago
“ The rationale behind this practice is the notion that property can be charged with an offense, even if the person who owns it has not been charged or even convicted. Proponents argue that this ability is critical to the efforts of law enforcement to crack down on crime.”
This is the inevitable consequence of the “we gotta get them goddamned drug dealers” mentality that has driven the War On Drugs my whole life. RICO, Asset Forfeiture, no-knock raids, and so on are all justified to ‘get’ drug dealers…and gradually crept into general use on the population.
I like cops, as a rule. I have only had one bad interaction with a policeman (rent-a-cops are another matter), and his own department was trying like hell to get rid of him (thank you, civil service rules). But the War On Drugs has made a LEO culture that has much broken about it.
I don’t think street drugs are a good thing. I’ve known junkies, and they were mostly sad, broken people, and often seriously untrustworthy. But the fallout of the War On Drugs seems to me to be worse than the drugs themselves.
But the current border crisis is not a COVID crisis. And courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency. We are a court of law, not policymakersers of last resort. //
While acknowledging the dire threat to America in the current uncontrolled immigration across our southern border, we should all be opposed to using public health edicts for other policy goals. I thought we all learned that lesson over the last two years, but it may bear repeating. Likewise, we should be horrified that a policy based on an expired emergency is not only being used but is one of the few effective tools in combatting illegal immigration. It really isn’t possible to oppose DACA, which is based on a memorandum from a Secretary of Homeland Security who left office nearly a decade ago, and support Title 42.
I think Justice Gorsuch is correct. The Supreme Court is using this case as a vehicle to define the degree to which states have an interest in immigration law. So to that extent, it may be a victory.
But, as Justice Gorsuch also notes, the courts should not be forced into policymaking roles. As conservatives, we’ve opposed this consistently when the courts get involved in making up voting laws and the boundaries of congressional districts. Keeping Title 42 in place is wrong because the reason for the regulation has expired. It is wrong because it insulates Congress and the Biden White House from their failure to address the illegal immigration crisis. It is wrong to have the courts dragged into doing what the Legislative and Executive Branches will not do.
Alito said the unprecedented leak of the Supreme Court’s draft opinion overturning Roe v. Wade earlier this year made the right-leaning justices on the nation’s highest court “targets for assassination.”
“The leak also made those of us who were thought to be in the majority and (in) support of overruling Roe and Casey targets for assassination because it gave people a rational reason to think they could prevent that from happening by killing one of us,” he said in remarks Tuesday at the Heritage Foundation. //
Actually, the court’s legitimacy depends not on its ideological majority nor public opinion but rather adherence to fīat jūstitia ruat cælum (“let justice be done though the heavens fall.”) If there is no obeisance to law, there is inevitable chaos.
Alito’s expressed views sharply contrast with recent comments by fellow Justice Elena Kagan, whose liberal views are no secret. It doesn’t help matters when the person in a black robe sitting next to you passive-aggressively undermines court authority with insinuations.
Kagan said that on the question of legitimacy, the popularity of the court’s rulings is not the issue. Instead, she added, a “court is legitimate when it’s acting like a court,” by respecting past precedents and not asserting authority to make political or policy decisions.
“When courts become extensions of the political process, when people see them as extensions of the political process, once people see them as trying just to impose personal preferences on a society, irrespective of the law, that’s when there’s a problem,” Kagan said.
One assumes that by respecting past precedents, Kagan isn’t referring to Dred Scott v. Sanford. This means “past precedents” translates into “earlier rulings I like regardless of their legal soundness,” which means you’re judging on emotions and not law, which is not precisely what the Supreme Court is supposed to be doing. But I digress.
This is the sad yet natural outgrowth of embracing feelings over facts; a view and implementation of government based on emotion and not law.
The recent Ig Nobel Prize Winning work "Poor writing, not specialized concepts, drives processing difficulty in legal language" by Martínez, Mollica, and Gibson demonstrates that contracts are written in language that is harder to understand than other genres such as academic or media writing. In particular, center-embedded clauses are used at more than twice the rate in contracts than in other professional writing except newspapers, lead to long-distance syntactic dependencies and are recalled and comprehended at lower rates than excerpts without these clauses.
Why is this? One would have thought that making contracts understandable to the parties would generally be in everyone best interest, but it is possible to imagine situations where this is not the case.
Abstract of the paper: //
Contract drafting is highly decentralized and change happens only when there is a powerful impetus for change.
Does this mean that legal writing can't be improved?
No.
Some lawyers are excellent writers in both contract drafting and in court documents.
A well drafted contact can reduce litigation costs when there are disputes. It can also increase compliance with the intent of the parties by preventing disputes over what the contract means from arising in the first place.
But most lawyers are mediocre contract drafters, and there is little selective pressure in transactional legal work to weed out their sub-optimal writing styles.
Bryan A. Garner, who among other things is the editor of Black's Law Dictionary, is pretty much the leading figure in the United States pushing for a more modern, more readable, less flabby legal writing style. This is exemplified, for example, in his book "Legal Writing in Plain English" (2d ed. 2013).
But even then, a lot of the impetus for his stylistic decisions was primarily driven by the need to get across ideas clearly, in a minimum of words, when writing appellate briefs with word limits. This is also the main context in which legal writing is taught in law school and continuing education classes.
In contracts, in contrast, in our current era of the word processor, long documents are easy to deliver, and long passages of writing can be cut and pasted. So, the same outside pressures to limit word counts and persuade judges who will read legal briefs cover to cover in order, are not present when drafting contracts. So, the pressure to have a succinct plain language writing style in contracts is less strong.
This said, when there has been regulatory pressure to write consumer contracts in a way that an average consumer can understand, it can be done.
For example, most credit card agreements are written in very clear plain English with a very low reading level compared to other contracts.
But those easy to read credit card agreements are drafted by committees of many lawyers and senior executives, each charging hundreds of dollars an hour, over many meetings over a period of weeks of debate and refinement, and a cost of many tens of thousands of dollars each to draft.
The flabby and clunky character of legal writing also reflects client imposed budgetary constraints. It takes much more time and effort, with multiple rounds of rewriting and editing, to write a clean, easy to read contract than it does to write a kludgy one.
Lawyers bill by the hour and clients want the job done at a price that they can afford. There is little incentive in contracts that will not be used many times as forms, to take the effort to produce a clean, easy to read final product. This kind of beautifully drafted contract costs much more to draft for the client, but provides little additional legal benefit to the client.
Few contracts are ever litigated at all, and when they are, the legal drafting tends to focus on only a handful of key provisions that are carefully drafted. Boilerplate language, which is often less carefully drafted, is very rarely litigated, so the quality of that writing doesn't matter much. ///
And the answer is a perfect example of lengthy writing, although very clearly presented!
The Thomas More Society has filed a complaint with Michigan’s Bureau of Elections against Secretary of State Jocelyn Benson for violating federal law in contracting with the Electronic Registration Information Center (ERIC) to clean her state’s voter rolls.
The complaint — filed on behalf of Pure Integrity Michigan Elections — argues that Benson violated the Help America Vote Act (HAVA) by giving ERIC access to Michigan’s Qualified Voter File, a secure voter list used by the bureau of elections and more than 1,500 election clerks. HAVA requires each secretary of state to maintain and clean voter rolls without outside assistance. //
HAVA does not allow states to share voter data with third parties, but Benson’s agreement with ERIC requires her to do so.
The Washington Post is reporting that the US Customs and Border Protection agency is seizing and copying cell phone, tablet, and computer data from “as many as” 10,000 phones per year, including an unspecified number of American citizens. This is done without a warrant, because “…courts have long granted an exception to border authorities, allowing them to search people’s devices without a warrant or suspicion of a crime.”
CBP’s inspection of people’s phones, laptops, tablets and other electronic devices as they enter the country has long been a controversial practice that the agency has defended as a low-impact way to pursue possible security threats and determine an individual’s “intentions upon entry” into the U.S. But the revelation that thousands of agents have access to a searchable database without public oversight is a new development in what privacy advocates and some lawmakers warn could be an infringement of Americans’ Fourth Amendment rights against unreasonable searches and seizures.Oberlin College “has initiated payment in full of the $36.59 million judgment in the Gibson’s Bakery case”
Finally, Oberlin College stops fighting, and the future of Gibson’s Bakery looks brighter after six years of darkness.
Posted by William A. Jacobson
Thursday, September 8, 2022 at 01:56pm
NARA told Trump it would proceed with “providing the FBI access to the records in question, as requested by the incumbent President, beginning as early as May 12, 2022,” according to the order.
Contrary to Biden’s claims, per the order, it was Biden who requested that the documents that had been turned over to NARA be provided to the FBI.
While Biden might not have known of the moment of the raid, he knew of the involvement of the FBI because he had requested the documents be turned over to them. He was directly involved in the FBI action. //
Robert A Hahn
3 hours ago
I wish someone could explain to me why every judge involved in this case prefers to ignore the existence of the Presidential Records Act, which would appear to render moot the issue of whether any of these documents were classified. That law, on its face, anticipates that some of the records taken by an outgoing president will be classified. Yet the law contains no penalties or even restrictions on taking them. This would appear to make it impossible to charge a former president -- as the Democrats and their blue media insist must happen -- with "possession of classified documents." Given that, what possible legal reason could there be for even asking for a search warrant, let alone conducting a raid on someone's home? And now here we are again with the "review which ones were classified" nonsense, when the law draws no distinction in that area?
Rooker-Feldman doctrine bars any effort to relitigate what was decided against a litigant in state court. No federal jurisdiction in a lower federal court for what is effectively a collateral attack on a state judgment. Only exception is federal habeas corpus.
Where does your state fall? The Heritage Foundation's Election Integrity Scorecard ranks the 50 states and the District of Columbia based on the strength of their election laws.
David Rivkin and Lee Casey in WSJ: “if the Justice Department’s sole complaint is that Mr. Trump had in his possession presidential records he took with him from the White House, he should be in the clear, even if some of those records are classified.” //
Someone whose legal analysis I would credit is David Rivkin. I’ve seen him and his team in action, and they are really good. He’s been involved in the notorious Wisconsin John Doe cases representing the conservative victims of the prosecutorial misconduct.
Rivkin and his law partner Lee Casey, had an Op-ed in The Wall Street Journal on August 22, 2022, that confirms my gut instinct that the search warrant was rotten from the get-go, The Trump Warrant Had No Legal Basis. Here’s an excerpt, but read the whole thing at the link:
The materials to be seized included “any government and/or Presidential Records created between January 20, 2017, and January 20, 2021”—i.e., during Mr. Trump’s term of office. Virtually all the materials at Mar-a-Lago are likely to fall within this category. Federal law gives Mr. Trump a right of access to them. His possession of them is entirely consistent with that right, and therefore lawful, regardless of the statutes the FBI cites in its warrant.
Those statutes are general in their text and application. But Mr. Trump’s documents are covered by a specific statute, the Presidential Records Act of 1978. It has long been the Supreme Court position, as stated in Morton v. Mancari (1974), that “where there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment.” The former president’s rights under the PRA trump any application of the laws the FBI warrant cites.
Willis’s disregard for the Speech or Debate Clause represents the least offensive part of the Fulton County prosecutor’s witch hunt. By targeting political opponents with a sham investigation that promises a fishing expedition inquiring into legal and legitimate Republican strategies, the Democrat district attorney runs headlong into the First Amendment. However, because pre-Trump our country has never seen such a blatant abuse of power and weaponizing of the grand jury system, precedent provides scant support to stop Willis and other Democrats. //
As I detailed earlier this month, “Willis told a Georgia federal court that ‘a central focus’ of her investigation into the 2020 election ‘is former President Donald Trump’s January 2, 2021, telephone call to Georgia Secretary of State Brad Raffensperger requesting that the Secretary “find 11,780 votes” in the former President’s favor.’” And “with that opening paragraph, the Fulton County Democrat revealed the hoax of an investigation she is running,” because “Trump did not request that Raffensperger ‘find 11,780 votes.’ Period. It never happened.”
Because Willis continues to push a grand jury investigation premised on a provable lie, the courts should force Willis to justify the grand jury proceedings in total. //
While the Speech or Debate Clause provides—or should provide—some protection against a prosecutor running rogue, the weaponizing of the grand jury by state-level Democrats presents no less of a breach of the Rubicon than the Trump Mar-a-Lago raid. But because our country has never seen this scenario before, it is unclear whether First Amendment jurisprudence will be up to the task of countering the continuing abuse justified by a desire to destroy political enemy No. 1.
Fani Willis’s own court filings against President Trump, Sen. Lindsey Graham, and other Republicans reveal her investigation is a sham because its ‘central focus’ rests on a lie.
If spreading lies is a punishable act, President Donald Trump has more than met the factual threshold necessary to hold everyone who pimped the Russia Hoax financially liable for their actions. Well, not quite, because the Jones lawsuit has never been about punishing reckless and obviously false speech. It is about punishing someone who is outside the mainstream.
Using the Jones case as a model, all the plaintiff needs to prove to prevail is a) the person making the statement is unpopular, 2) the statement made is not within the conventional wisdom, and 3) the plaintiff’s feelings were hurt.
Jones may be an unsavory character, he might even deserve punishment, but the principle established by the success of this lawsuit and the damages awarded is profoundly dangerous. The lawsuit should have been summarily dismissed as a blatant violation of the First Amendment.
But beyond the textual argument, which the federal court will likely consider in the next week or so on an expedited time frame, the underlying rationale for the Speech or Debate Clause should provide a stark warning to Democrats that what Willis is doing is destructive to our democratic republic and should be denounced.
As Graham’s attorneys stressed in his motion, the framers believed the Speech or Debate Clause was “‘indispensably necessary’ for the independence of the legislature, and ultimately for the ‘rights of the people.’” Only by protecting members of Congress from being questioned about their legislative activity could the integrity of the legislative process be assured. “By ‘enabling these representatives to execute the functions of their office without fear’ of interference from prosecutors, grand juries, or courts, the Framers understood that the ‘rights of the people’ would, in turn, be protected.”
But here, we don’t truly have a “prosecutor” or a “grand jury”; we have an inquisitor and her trial of Republicans by publicity. And the Fulton County court seems but a rubber stamp for the subpoenas Willis seeks.
And Willis is but one county D.A. Imagine the mischief if every prosecutor with political ambitions followed her lead.
If you are a Common Sense reader, you are by now highly aware of the phenomenon of institutional capture. From the start, we have covered the ongoing saga of how America’s most important institutions have been transformed by an illiberal ideology—and have come to betray their own missions.
Medicine. Hollywood. Education. The reason we exist is because of the takeover of newspapers like The New York Times.
Ok, so we’ve lost a lot. A whole lot. But at least we haven’t lost the law. That’s how we comforted ourselves. The law would be the bulwark against this nonsense. The rest we could work on building anew.
But what if the country’s legal system was changing just like everything else?
Today, Aaron Sibarium, a reporter who has consistently been ahead of the pack on this beat, offers a groundbreaking piece on how the legal system in America, as one prominent liberal scholar put it, is at risk of becoming “a totalitarian nightmare.”
This is a long feature on a subject we think deserves your time. //
That lawyers could be tainted by representing unpopular clients was hardly news. But in times past, lawyers worried about the public—not other lawyers. Defending communists, terrorists, and cop killers had never been a crowd pleaser, but that’s what lawyers had to do sometimes: Defend people who were hated.
When congressional Republicans attacked attorneys for representing Guantanamo detainees, for example, the entire profession rallied around them. The American Civil Liberties Union noted that John Adams took pride in representing British soldiers accused of taking part in the Boston Massacre, calling it “one of the best pieces of service I ever rendered to my country.”
But that’s not how the new associates saw Boies’s choice to represent Weinstein. They thought there were certain people you just did not represent—people so hateful and reprehensible that helping them made you complicit. The partners, the old-timers—pretty much everyone over 50—found this unbelievable. That wasn’t the law as they had known it. That wasn’t America.
“The idea that guilty people shouldn’t get lawyers attacks the legal system at its root,” Andrew Koppelman, a prominent liberal scholar of constitutional law at Northwestern University, said. “People will ask: ‘How can you represent someone who’s guilty?’ The answer is that a society where accused people don’t get a defense as a matter of course is a society you don’t want to live in. It’s a totalitarian nightmare.” //
All of sudden, critical race theory was more than mainstream in America’s law schools. It was mandatory.
Starting this Fall, Georgetown Law School will require all students to take a class “on the importance of questioning the law’s neutrality” and assessing its “differential effects on subordinated groups,” according to university documents obtained by Common Sense. //
As of last month, the American Bar Association is requiring all accredited law schools to “provide education to law students on bias, cross-cultural competency, and racism,” both at the start of law school and “at least once again before graduation.” That’s in addition to a mandatory legal ethics class, which must now instruct students that they have a duty as lawyers to “eliminate racism.” (The American Bar Association, which accredits almost every law school in the United States, voted 348 to 17 to adopt the new standard.) //
Stith, the professor who was lambasted for telling students to “grow up,” doesn’t see the pile-on as an isolated incident.
“Law schools are in crisis,” she told me. “The truth doesn’t matter much. The game is to signal one’s virtue.” //
“That’s hugely corrosive,” said a corporate lawyer in Virginia, who, like most attorneys contacted for this article, would not go on the record for fear of losing his job. “You see it in all of the worst things we see in Donald Trump. ‘The law means what I say it means. The election was stolen because I lost.’ Once you depart from the idea that we’re all people under the law, it really matters who is in power. That starts to feel like the rule of man, not the rule of law.” //
The problem, Strossen said, is that rights mean nothing without representation. “ANYONE who doesn’t have access to counsel in defending a right, as a practical matter, doesn’t have a meaningful opportunity to exercise that right,” the former ACLU chief told me in an email. “Hence, undermining representation for any unpopular speaker or idea endangers freedom for ANY speaker or idea, because the tides of popularity are constantly shifting.”
Ken Starr, the former solicitor general who led the 1998 investigation of Bill Clinton, agreed. “At a time when fundamental freedoms are under assault around the globe, it is all the more imperative that American lawyers boldly stand up for the rule of law,” Starr said. “In our country, that includes—especially now—the representation of controversial causes and unpopular clients //
Then there’s the erosion of the principle that one is innocent until proven guilty beyond a reasonable doubt. “The Anti-Innocence Project,” one criminal-defense attorney in San Francisco joked.
Progressive lawyers have become more determined to turn a blind eye to certain defendants while cracking down with even greater than usual fervor on certain crimes. “The same people who are anti-incarceration for some defendants will support life plus cancer for others,” said Scott Greenfield, a criminal-defense attorney in New York. “Good people—which in practice means blacks and Hispanics, regardless of what they did—should be free. Bad people—which in practice means sex offenders and financial criminals—should go to jail.”
In 2019, for example, the American Bar Association nearly passed a motion urging state legislatures and courts to adopt a new definition of “consent” in cases of sexual misconduct that would flip the burden of proof from the accuser to the accused—despite fierce criticism of the standard from legal scholars, and despite some evidence that it has unfairly hurt black, male students on college campuses
Instead of free speech, the lawsuit is about TikTok product liabilities, negligence, and infringement of the California Consumer Legal Remedies Act by addicting users, compelling them to spend as much time as possible on TikTok, prompting them to engage in risky behaviors. TikTok fails to disclose that participating in challenges could cause death, the lawsuit alleges, and rewards engagement with dangerous videos.
The only motive given to justify TikTok's design: It's just not as profitable to design the product any other way. Parents in mourning claim its business model depends on addicting kids.
"TikTok spends millions researching, analyzing, and experimenting with young children to find ways to make its product more appealing and addictive to these age groups, as these age groups are seen as the key to TikTok's long-term profitability and market dominance," the complaint says.
The film, Created Equal: Clarence Thomas In His Own Words was released in 2020, and offered a unique glimpse into Justice Clarence Thomas’ life and judicial philosophy. Since his 1991 confirmation hearings, the legacy media has delighted in poisoning the well with lies, smears, and racist tropes about the Justice. With the assistance of documentary filmmaker Michael Pack, Mark Paoletta decided to dig a new well, one that allowed people to draw their conclusions from Justice Thomas’ own life, words, and writings.
Pack spent 25 hours filming Justice Thomas, and six additional hours with his wife Ginni — a voluminous amount of discourse that was reduced to a two-hour documentary. Sadly, this left a prodigious amount of information on who the Justice is as a person, as well as his writings and viewpoints, unexplored. So, Paoletta decided that a book of the same name was in order. //
I sat down with Paoletta for an hour, and he stated that he is making it his life’s mission to present a true, candid, and unadorned portrait of this consequential jurist.
It’s a fascinating conversation that gives a glimpse not only into Clarence Thomas the United States Supreme Court Justice, but into Clarence Thomas the man and the humanitarian.
The same points keep getting made in the debate on abortion. Here are the many reasons the usual points in favor of abortion are wrong. //
Abortion is a deeply divisive issue, and about half of Americans consider themselves pro-life and half call themselves pro-choice. Overturning Roe will not end abortion rights but return the issue to the states, allowing for a more democratic process — the debate will continue, but the truth remains the same.