Category Archives: Courts

Naked Threats of Vengeance

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This is what the leftist American Bar Association is tolerating in its midst—intolerance to the point of seeking destruction of those who don’t kowtow to their ideology.

[A] group called “The 65 Project” has taken to social media vowing to go after the licenses of attorneys who chose to work for former President Donald Trump.

Apparently, only the Precious Left and a section of the ABA guild are allowed to use the courts to seek election integrity.

The 65 Project isn’t troubling itself with facts in their attacks, either. Here’s Managing Director Michael Teter:

Across the country, lawyers who lent their credibility as officers of the court to Donald Trump to file factually and legally baseless claims to overturn legitimate election results have been investigated by state bar associations, been fined, had their licenses suspended, and even disbarred[.]

Not so much. The vast majority of the cases brought over election results never got to the merits, legitimate or baseless; they were dismissed on procedural or other grounds. Further, “across the country” is a cynical exaggeration. Only a very few lawyers have been sanctioned over the cases they brought.

Alan Dershowitz, still a staunch Democrat and Harvard Law School Professor Emeritus, has the correct characterization of the project’s shenanigans:

It’s pure McCarthyism. And unethical. And it’s scaring some lawyers away.

This is what wants to rule over us. Keep it in mind next month.

Intolerance and Frivolous Lawsuits

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Jack Phillips, owner/operator of Masterpiece Cakeshop, had yet another lawsuit against him dismissed, this one by the Colorado Supreme Court. Unfortunately, it was dismissed on the trivial technicality that it wasn’t filed correctly.

The Wall Street Journal editors ask the question

[W]hen will the progressive cultural police finally leave him alone?

As long as the courts—which includes our Supreme Court, whose ruling in Phillips’ favor in an earlier lawsuit was based narrowly on the animus of the Colorado Civil Rights Commission—continue rule to timidly, the intolerant progressives will continue to persecute Phillips and the rest of us Americans who won’t bow and scrape at their intolerant feet.

What’s necessary to put an end to progressive bigotry, at least in our courts, is to sanction such legally frivolous, but morally bigoted, lawsuits. The plaintiffs in such cases should be required to pay their persecution target all legal costs, which often is already the case, and they should be required to pay the damages identified by the plaintiff. Further, the lawyers and their employing law firms—which do not have to be a party to such…frivolity—need themselves to be heavily sanctioned: the lawyer(s) fined steeply, beginning with 10% of their top line income and moving up for each subsequent frivolous suit in which they might participate, and the law firms employing them fined similarly steeply.

Courts are justifiably reluctant to find against plaintiffs and plaintiff lawyers on the basis of their frivolous cases, but it’s been made crystalline by the persecution of Phillips that courts are being too timid here.

Disingenuous TikTok Arguments

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The law requiring ByteDance to divest TikTok entirely or have TikTok banned from the US is in front of the DC Circuit Court, and there are at least two arguments that TikTok is making that are…misleading.

The first is this one:

Never before has Congress silenced so much speech in a single act.

No speech is being silenced. Only a particular outlet—TikTok—used by the People’s Republic of China intelligence community is being acted against. That outlet would remain available were ByteDance to wholly divest TikTok, which ByteDance and the PRC, on their own initiative, refuse to do. There also are a plethora of speech pathways for precisely the same speech desires besides TikTok. ByteDance’s/PRC’s decision to let TikTok be closed will have no impact on speech.

The second is this one:

Our constitutional tradition leaves no room for the government to stop Petitioners from expressing their ideas through the editor and publisher they have chosen. The government could no more prohibit a freelance journalist from publishing in a magazine of her choice; forbid an actor from working with a particular director; or tell a musician what studio he can record in.

Of course, no one is making any prohibition of this. The decision to leave TikTok available to the freelancer (or any other journalist), the actor, or the musician is entirely in the hands of ByteDance and the PRC government. It’s their decision to refuse to let TikTok be divested that would deny access to TikTok.

Misunderstanding

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It’s surprising that so many so-called journalists misunderstand, but it’s a widespread failure, and it includes too many economists, as well. For good or ill, there is a loophole in the 2018 tax law that’s providing windfalls for American companies.

The loophole is a mismatch of critical dates between that law’s Section 245A and Section 78. The former lets US companies bring home their foreign profits without paying US taxes, with an effective date of 1 January 2018; the latter was intended to prevent inappropriate tax breaks in the old international tax system, with an effective date of 31 December 2017. Those 24 hours are a loophole far beyond the size of a single day. Three companies, for instance, are claiming—and one has already won in court—tax refunds:

[Varian Medical Systems won its case for] $150 million in deductions. The electronics manufacturer Kyocera and the food distributor Sysco have similar court cases pending, each involving more than $100 million in deductions.

Others are putting together their own refund filings that, in their aggregate will be worth several tens if not hundreds of millions of dollars more.

The misunderstanding is not about the Congressional gridlock blocking reconciliation of those two dates, as the writer of the Wall Street Journal article went on about, even though she got it right in her lede.

That [loophole] is now allowing big companies to save tens or hundreds of millions of dollars that otherwise would have gone to the government.

The misunderstanding—an understanding which goes to the core of our tax system and its and its constitutionally mandated purpose—is this:

The Varian case highlights how gridlock in Congress can cost the public….

No. Leaving money in the hands of our private economy, or returning money to those hands, is not a cost to the public—we American citizens and our enterprises are that public—but a benefit to the public, to us. Leaving the money or refunding it does reduce the amount of money accruing to Government, but that also could be a benefit to the public by restricting the money available to government to misspend. That latter, though, puts the onus on us in the public to elect politicians who will honor that restriction by not borrowing to spend more than government takes in and by not raising taxes to match excess spending.

Then there’s this:

A recent ruling by the Supreme Court will put more emphasis on the literal text of laws….

Literal text of the laws: the text of a law is what Congress intended the law to say, else Congress would have passed a different law saying something different.

And that’s as it should be, since the American system of governance restricts legislation to Congress and judicial action to the limits of those laws’ text. Judge Emin Toro, writing in his ruling on the Varian case, was quite clear on this:

Congress “spoke clearly” when it selected the mismatched effective dates. “Appeals to policy and Congress’s overarching purpose cannot overcome these choices[.]”

Activist judges—and that’s the only kind that presumes to legislate from the bench, that presumes to Know Better than the rest of us what a law should be—are broadly held as Truth Sayers by the Left and its Progressive-Democratic Party. These unelected representatives judges writing law rather than ruling within it are the bane of American liberty.

“Conservative Leanings”

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In a Wall Street Journal article centered on a Federal judge’s ruling against the FTC’s rule presuming to ban noncompete agreements between employers and employees, the author quoted Mark Goldstein of ReedSmith LLP who characterized the Supreme Court as having conservative leanings.

This is a misapprehension that’s all too widespread among both conservatives and liberals.

In fact, the Supreme Court does have, currently, a strong originalist/textualist bent. There’s nothing particularly conservative, or liberal, in originalism/textualism, though; there is only rule of law.

This core tenet of our republican democracy runs contra activist judges’ and today’s political liberals’ demand for rule by law. That demand is epitomized by the late Justice Thurgood Marshall’s proudly self-important statement that he rules and expects the law to catch up and by today’s Progressive-Democrat administration’s repeated attempts to cancel student debt after each of our courts’ repeated strikes of prior attempts as contrary to existing law.