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InūüÖĪÔłŹ4 wage gap

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InūüÖĪÔłŹ4 wage gap submitted by /u/flyistnihilist to r/dankmemes
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Oklahoma Accidentally Makes All Civil Litigation “Loser Pays”

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Courts and lawyers frequently¬†try to ferret out the “intent of the legislature” when trying to understand a statute that’s not very clear. That project assumes, of course, that the legislature actually¬†had an “intent” to begin with. Legislatures frequently do, at least in a sense. But sometimes they do not.

That seems to be the case with the Oklahoma Legislature’s recent decision (if you can call it that) to break with almost 300 years of U.S. legal precedent and declare that in a civil case, the losing party has to pay both side’s legal fees. That was (and still is) the rule in Britain and most other countries, and many believe it’s the best rule¬†because it tends to deter people from filing lawsuits. Many others¬†believe it’s¬†not¬†the best rule, because it tends to deter people from filing lawsuits. Your approach to that likely¬†depends on your attitude toward litigation in general, or maybe just your attitude toward plaintiffs.¬†Regardless, the rule throughout¬†the U.S. has long been that each party pays its own¬†legal fees, win or lose, though there are statutory exceptions. This is sometimes called “the American Rule,” in fact, highlighting the fact that most other countries do it differently.

Usually, if¬†you’re planning¬†to toss a legal rule that’s been around for centuries, you discuss that with other people first. But it is¬†still unclear whether there was any “planning” involved in the amendment to House Bill 1470.¬†See, e.g., “Massive shift in Oklahoma legal law is a mistake, author says,”¬†The Oklahoman (May 16, 2017). The “author” there is state Sen. David Holt, who was a co-author of the bill¬†but not the amendment that created the “massive shift.” It gives you some idea of how the process worked that a co-author of the bill is just as puzzled as everyone else about what happened.

House Bill 1470 originally was meant only to extend the statute of limitations for lawsuits alleging sexual abuse during childhood. It amended section 12-95(A)(6) of the Civil Procedure Code, which was set up like this:

Section 95.

A. ¬†Civil actions other than for the recovery of real property can only be brought within the following periods …

1. ¬†Within five (5) years: An action upon any contract … in writing;

2. ¬†Within three (3) years: An action upon a contract … not in writing;

* * *

6.  An action based on [childhood sexual abuse] [can be brought as follows:]

* * *

B.  Collection of debts owed by inmates who have received damage awards pursuant to Section 566.1 of Title 57 of the Oklahoma Statutes shall be governed by the time limitations imposed by that section.

At the time HB 1470 passed the Oklahoma House, it only amended subsection (A)(6). But when it went to the Senate, the Judiciary Committee proposed this amendment:

C. In any action brought pursuant to the provisions of subsection A of this section, the court shall award court costs and reasonable attorney fees to the prevailing party.

That was adopted, the amended bill passed the Senate, and the governor has since signed it. So Section 95 now says this:

A. ¬†Civil actions other than for the recovery of real property can only be brought within the following periods …

B.  [the inmate thing]

C.  In any action brought pursuant to the provisions of subsection A of this section, the court shall award court costs and reasonable attorney fees to the prevailing party.

Emphasis added. So in virtually all civil actions in Oklahoma, the losing party now pays the winner’s attorney(s), as well as his or her own.¬†That’s a big deal. And it’s not clear¬†anyone¬†actually meant to do it.

Obviously this¬†was not in the original House bill. Holt, the Senate sponsor, admitted he didn’t intend this result and said he didn’t think anyone else did, either. He thought the intent was only to shift fees in cases involving childhood sexual abuse, the cases for which they were changing the limitations rules. But “[u]pon a closer reading of the amendment,” he admitted‚ÄĒthe kind of reading they¬†apparently didn’t do before voting‚ÄĒ”it seems evident that it makes all civil cases [not involving property] loser-pays. But nobody caught that.”

Well, where’d the amendment come from? According to¬†The Oklahoman, “Senate Judiciary Committee Chair Anthony Sykes brought the amendment to the April 11 meeting [on the bill], and staff typed it during the meeting.” Did he know what he was doing? Good question. Holt thinks he didn’t. “I was there when the news was broken to him that this amendment went far beyond what we thought it did,” Holt said, “and he seemed genuinely surprised by it.” Hey,¬†Oklahoman, was¬†he actually surprised? “Sykes could not be reached for comment; he typically does not respond to media requests.” He’s sticking to that policy, it appears.

Oh, how about the governor?

Gov. Mary Fallin’s attorneys caught [the error, if it was one]¬†during a review. By that time, the bill had passed both the House and Senate and was just a day away from the signing deadline.¬†Even though her staff knew about the mistake, Fallin signed the bill.

So the governor knew about the issue, believed it was a “mistake” and made¬†a change nobody in the legislature had intended to make,¬†but signed it anyway. Her press secretary said she thought the¬†other provisions were too¬†important to scrap.

That’s understandable‚ÄĒthe bill was intended to help survivors of childhood sexual assault, and certainly no politician wants to be seen vetoing a bill like that‚ÄĒbut the upshot is that Oklahoma has largely discarded a significant legal rule that’s been around for centuries, and as far as we know, not a single person in state government intended for that to happen.

It is possible that a court would look at this evidence and uphold a challenge to the new law, but most courts would be very reluctant to rewrite a statute to that extent. The governor’s office noted that the measure doesn’t take effect until November 1, and suggested the legislature might want to consider something called a “trailer bill” to fix the problem in the meantime. But a spokesman for the Speaker of the House (should a¬†Speaker have a spokesman? I don’t think so)¬†said they had to focus on the budget between now and May 26, when the legislature adjourns. “That might be something the House looks at next session,” the Speaker’s spokesman said. So, whatever.

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gordonrussell
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Interesting OKLA has adopted the British Rule - the loser pays attorney's fees for both parties.

“Naked American Hero” Loses Challenge to TSA Fine

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Just over five years after John Brennan‘s¬†heroic (and heroically naked) stand against TSA oppression, the Ninth Circuit has rejected his appeal.

As you may recall, Brennan was arrested in April 2012 after he got fed up with TSA screening nonsense in¬†Portland¬†and decided to strip naked as a form of protest. Although obviously this greatly simplified the screening process‚ÄĒor it would have,¬†if the¬†goal were¬†actually to determine whether a¬†traveler is carrying anything dangerous‚ÄĒthe TSA acted like¬†it didn’t, and shut down the checkpoint.¬†See¬†TSA: Wants to See You Naked, Complains When You Get That Way,”¬†Lowering the Bar (Apr. 18, 2012).

Brennan¬†was charged with indecent exposure, and¬†promptly acquitted, because in Oregon “symbolic nudity” is considered free speech that is protected under the state constitution. But if it occurs to you that there’s¬†a similar sort of “free speech” protection in the federal constitution, like maybe in one of those¬†amendments or something, then you must not work for the TSA. It separately charged Brennan with violating the regulation saying¬†you can’t “interfere with, assault, or intimidate screening personnel in the performance of their screening duties,” and fined him $1,000 (later reduced to $500). Its argument, of course, was that he had “interfered with” the screeners even though they made the decision to close the checkpoint instead of conceding he wasn’t a threat and letting him travel.

I think¬†I made my position on this matter relatively¬†clear.¬†SeeTSA Fines ‘Naked American Hero’ $500” (Apr. 8, 2014) (opining that “[t]his sort of argument is what we lawyers refer to as ‘bullshit.'”). But in rulings that surprised no one, TSA administrative-law judges upheld the fine. Brennan’s constitutional challenge could not be raised there, because a handy TSA regulation specifically forbids its ALJs from even considering the validity of any TSA requirement “under the U.S. Constitution, … or other law.” And¬†Congress stripped district courts of jurisdiction to consider TSA rulings, so appeals go directly to the circuit court. “[P]lease hope along with me that the Ninth Circuit will reverse,” I hoped in 2014, but if you actually hoped that hope, it turned out to be hopeless.

Not only did the Ninth Circuit panel uphold the fine, it did so unanimously, without oral argument, and in a brief and dismissive two-page opinion. So either I, or three federal judges,  got this one completely wrong. And it is unusual for three federal judges to get things so completely and unanimously wrong, but, as you can see, it does happen.

Brennan made two arguments: first, that what he did was expressive conduct protected by the First Amendment; and second, that either he didn’t violate the¬†“interference” regulation or it’s¬†unconstitutionally vague.

The panel dealt with the first one in a single conclusory sentence: “Brennan fails to carry his burden of showing that a viewer would have understood his stripping naked to be communicative.” But under the circumstances, it’s hard to see what a viewer might have thought Brennan¬†was doing if not¬†sending a message that he thought the security procedures were unnecessary. He didn’t just strip in the middle of the airport, he stripped in the checkpoint line while being delayed by the TSA. The panel doesn’t explain what it thinks viewers might have believed was going on if not some sort of protest.

The second argument doesn’t get much more than a sentence. A rule¬†is unconstitutionally vague if it “fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes seriously discriminatory enforcement.” The term¬†“interfere” isn’t vague, the court points out, and then just says that courts have often applied the term, “but never in a way that would lead a person of ordinary intelligence to think that he or she could strip naked at a TSA checkpoint and refuse to get dressed, leading to the closure of the checkpoint.” There’s no authority or analysis supporting this, which seems to accept without question the TSA’s position that Brennan, not the TSA, was necessarily responsible for closing the checkpoint.¬†If they said, “okay, you can go,” and he still refused, that’d be different, but I don’t think that’s what happened.

I guess reasonable people can disagree on these points, but it’s disappointing that the court plainly didn’t take the case seriously enough to analyze them. I realize it involved a guy getting butt-naked at the airport, but the¬†state judge was able to see past that to get to the issues. This panel doesn’t seem to have really tried.

One¬†member of the panel, Judge Jay Bybee, is best known for signing the memos drafted by John Yoo that justified the torture of prisoners as part of the “War on Terror,” back when they were working in the DOJ’s Office of Legal Counsel. I’m not saying that the legal opinions Yoo expressed in those¬†memos were so biased and¬†poorly reasoned¬†that just rendering them was an act of¬†professional misconduct, although¬†the¬†DOJ’s own Office of Professional Responsibility did later say¬†that. Nor am I saying that Bybee’s presence on Brennan’s panel was necessarily a bad sign, given his history of extreme deference on “security” issues, but‚ÄĒwell, actually, I am¬†saying that. One¬†of the other judges was also appointed by George W. Bush, but the third was appointed by Obama, and the decision was¬†unanimous, so politics alone doesn’t seem to¬†explain the outcome.

I have some concern that the¬†Obama appointee¬†might have been subjected to some sort of¬†enhanced negotiation techniques to get him to agree, but I’m probably wrong about that.

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This light switch...

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This light switch... submitted by /u/generalecchi to r/CrappyDesign
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Court: Lawyer Who Gave Himself Award Can’t Sue People Who Reported He Did That

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Prof. Eugene Volokh reports today on¬†Levitt v. Digital First Media, decided this week by the Michigan Court of Appeals. Now I’m also reporting on that, and on Prof. Volokh’s¬†report, reasonably secure in the knowledge that Levitt can’t sue either one of us for these¬†reports, because that’s what the court¬†just held.

I guess he could sue us, but he wouldn’t win.

According to the opinion, Todd Levitt is an attorney and was an adjunct professor at Central Michigan University. In 2014, Levitt sued a CMU student who¬†had created a Twitter account making fun of him. It wasn’t active for long, but Levitt sued the student for libel, business defamation, and tortious interference, among other things. But the account¬†was an obvious parody, the courts later held, and therefore protected by the First Amendment.

While that case (Levitt v. Felton)¬†was still pending in the trial court,¬†The Morning Sun¬†newspaper ran an article on it describing the allegations and discovery responses. In particular, the article said¬†Levitt had “admitted in court documents” that he had created a “top college lawyer” award and then “awarded it to himself” so he could say he had won an award. Presumably, that was one of the things Felton¬†was mocking him for, and Felton¬†had served discovery on Levitt to get him to admit it was true. The article was headlined “Attorney suing student admits to fake award.”

Levitt then sued¬†the newspaper, its parent company, and the reporter who wrote the story, again claiming libel and so forth. Defendants moved to dismiss on the grounds that the article was a fair and substantially true account of the case. Levitt disputed that, emphasizing (in the court’s words) “that the headline stating that he¬†admitted¬†to a¬†fake¬†award was false.”

Had he created a website called¬†topcollegelawyers.com? Yes. Did that website declare¬†that Levitt¬†had been named the first¬†“College Lawyer of the Year”? Yes. Had he personally selected the members of the “independent search committee” that ultimately selected him as the¬†winner? Well, yes. But Levitt submitted affidavits from both of those people (apparently there were only two) who testified under oath that they had, in fact, chosen¬†Levitt to receive the award¬†“on the basis of the website’s criteria.” I presume those criteria included something other than “the winner shall be Todd Levitt,”¬†so they could truthfully testify under oath that it was just¬†a remarkable coincidence that they had, in fact, chosen Todd Levitt to receive the award Todd Levitt had created and asked them to award.

In other words, Levitt’s argument was that he did not technically admit¬†he had awarded a “fake” award “to himself,” for the reasons above.

Incredibly, the trial court bought this, at least for purposes of summary judgment. It concluded that defendants hadn’t met their burden to show the article was substantially true (plaintiff would’ve had the burden at trial, but defendants have the burden to show trial isn’t necessary) because the “gist” of the article, basically as set forth in the headline, “produced a different effect on the reader than the literal truth.”¬†The Court of Appeals’ decision this week corrects that mistake.

That court agreed Levitt was not a “public figure” for this purpose, but noted that the case involved media defendants and a “matter of public interest,” namely a court case¬†involving allegations of improper marketing of legal services. It’s not clear to me whether that means Levitt would have had to prove “actual malice,” but it didn’t matter because the court held the report was in fact “substantially true,” which was¬†an absolute defense to all of his claims here (emphasis added below):

Articles with ‚Äúminor inaccuracies‚ÄĚ that do ‚Äúnot alter the complexion of the affair and would have no different effect on the reader than that which the literal truth would produce‚ÄĚ are substantially true.

***

In this case, although it is technically true that plaintiff did not ‚Äúadmit‚ÄĚ that the College Lawyer of the Year award was ‚Äúfake‚ÄĚ or admit in a court document that he ‚Äúawarded‚ÄĚ the ‚Äú ‚Äėtop college lawyer‚Äô recognition . . . to himself,‚ÄĚ we conclude that these inaccuracies [aren’t “substantial”]….¬†[P]laintiff admitted that he commissioned the topcollegelawyers.com website and created the College Lawyer of the Year award to generate profits. He further conceded that he established the criteria for the award, chose the persons who comprised the committee that selected the award recipient, won the award, and then broadcast this as an accomplishment on a marketing website. Although the article contained slight inaccuracies, we conclude that the sting of the article‚Äôs headline would not have a different effect on a reader than the literal truth.

No kidding.

Note: Michigan apparently does not have an “anti-SLAPP” statute, which makes lawsuits like this one easier to get rid of. As I think I’ve mentioned before, California does. As I also think I’ve mentioned before, that’s where I live.

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Without action on antibiotics, medicine will return to the dark ages - Continued overprescribing and abuse could lead to more people dying of resistant infections than cancer. Only global cooperation can solve the problem

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Without action on antibiotics, medicine will return to the dark ages - Continued overprescribing and abuse could lead to more people dying of resistant infections than cancer. Only global cooperation can solve the problem submitted by /u/mvea to r/Futurology
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