Yup. Precisely. And you can expect court costs to continue to rise as we siphon money away from the judiciary, forcing the civil courts to gradually become self-funding. It's easy to snark about legal fees, and certainly, hiring a lawyer ain't cheap. But, while having a lawyer is a major advantage, it isn't a requirement to enter the court system, whereas things like filing fees are. Every person has the right to seek redress before the court on his or her own behalf, period. But when you de-fund the entire court system such that the courts have to require people to pay higher and higher amounts in order to be heard, you create a situation where the only ones who have access to justice are those who can afford to purchase it.
You know, every time two parties go to court having paid "reasonable" legal fees, one party loses. I'm sure they're likely to think that if only they had spent more that they'd have done better.
I've no doubt they think that very thing. Regret is one of the most, er, regrettable human emotions we have. It's utterly useless yet stubbornly persistent. It's easy to tell ourselves that having done something differently would have caused a different outcome, and impossible to prove -- and also, unfortunately, to falsify.
Judging by most investigative journalism I've seen, I'm inclined to agree.
Care to give an example of the investigative journalism you're referring to? While it's certainly true that price can act as a proxy of sorts for quality, it's far from a perfect correlation, and testing those sorts of things is heavily subject to confirmation bias.
That said, just the stories of holiday parties alone gives me plenty of contempt for the entire profession. If my employer did half the nonsense the average law firm does around the holidays, they'd be sued out of existence.
I can't tell if you're talking about the unjustifiably lavish expenditures, the excessive drinking, or the sexual harassment. All exist, certainly (though the first far less so in this economy), but the same kinds of charges could easily and quite rightly be leveled at startup culture -- as well as banking and finance, and, hell, pretty much any industry where loads of money get thrown around. Do you hold the same amount of contempt for technology entrepreneurs as a whole, then?
There are numerous amendments. So the Constitution changes with time. Hence, there is no one Constitution.
An amendment CHANGES the Constitution. It doesn't create a whole new one. There's only one Constitution, and even if the words don't change, the interpretation does. There's no "original" Constitution in the sense of some concrete thing that we can point to and say "it used to be that," except, I guess, to the extent that you're literally only talking about the specific words on the page, which... okay? But... that doesn't really get us anywhere. The Constitution is the Constitution, and no one part of it is somehow more important than another just because the words have been there longer. If anything, the newer parts of it could be considered more important, as the newer parts are the result of added learning and experience beyond what we had, collectively as a country, at the time of first drafting.
You know what you call the party who hires a "lower-cost" lawyer? The LOSER. You may as well not show up and lose by default, at least then you don't have to pay the lawyer.
Ahhhhhhh, now I get it. Here I thought you were just an ill-informed, disgruntled anti-lawyer type, but now I see that you're actually a big firm lawyer trying to justify your ludicrous rates. I used to work in a big law firm with lots of people like you. Even thought I liked it, didn't want to get laid off when the recession hit. Years later and working for a small firm that charges actually affordable rates, pays me a lot less, and lets me have as much of a life as I want, I realize now how completely fucking miserable I was in biglaw, as were the vast majority of the other lawyers I worked with.
If there's any part of you that can still be gotten through to, please listen, friend: it's never too late to get out. I promise you, it's not as scary out here as you think it is. There is life on the other side of the thousand-pound billable hour, and it's pretty goddamned good.
Jesus Christ. Here's how this works: the courts don't have power to issue any orders that are not authorized by law (i.e., the legislature, and as has been pointed out at length in this discussion, the First Amendment applies to state legislatures as well as Congress). If the court is doing something, it's because (1) it's enforcing a law enacted by the legislature (or rule promulgated by an executive agency, subject to the laws enacted by the legislature), or (2) it's overstepping its constitutional authority. Either way, if the court is issuing an order that abridges the freedom of speech, as that term is defined through applicable case law, then the court has violated the First Amendment (and, to be clear, the Supreme Court has consistently held that courts, like legislatures, are bound by the First Amendment). Yes, I used shorthand in my earlier comment. Didn't realize that folks around here needed an explanation of every nitpicky detail of how law works laid out in order to understand broader points. I officially apologize for painting a picture of trees and hoping people would understand that it was a forest.
I'm not even sure what point you're trying to make. Are you saying defamation isn't speech? Why? Acknowledging that it is speech neither means it's protected by the First Amendment nor threatens the First Amendment's effectiveness. Nuance is preferable to absolutism, even though it does result in some measure of imperfection. Clinging to the idea that the Constitution is full of easy-to-understand bright lines is how radical movements are formed. The Constitution is a patchwork of competing ideas and points of view developed primarily by large numbers of rich, straight, Anglo-Saxxon religious white men over the course of a couple hundred years or so. And Constitutional JURISPRUDENCE? The notion that there's something magical about Supreme Court decisions is laughable. Yes, precedent is important, because stability is important. Societies need some basic level of stability to enable growth, which requires calculated risk-taking. But there's nothing magical about the Constitution or its interpretation, and regarding it with the borderline reverence that many do is the path to absurdity and cultural stagnation.
Ex post facto laws are laws that are written to retroactively alter the legal effect of actions that have already occurred -- it's usually used in the criminal context. As you yourself already noted, a court case isn't legislation, so no, a website suing you for not paying an amount you didn't agree to pay isn't an ex post facto issue. The scenario I was discussing was one where the court would have already had the power to order you to pay damages to the website (that's the First Amendment issue -- there's an operation of law that permits you to be sued for having made speech. That's not ex post facto, even though intuitively it might seem that way because we don't live in a society with that law, so it's natural to assume it's a new creation if it happens in a hypothetical world). And I'm not sure what you mean by "original Constitution." There's only one Constitution, unless you're trying to contrast the Articles of Confederation?
This discussion has moved well beyond my interest at this point, but I would like to thank y'all for reminding me that apparently law school had some value, after all. Shit, I wonder if this is how my doctor feels when I self-diagnose on WebMD.
Did you read the entirety of my comment? You seem not to have understood it, given that you apparently think I said the First Amendment protects defamation, which is the opposite of what I said. The First Amendment protects against more than just prior restraint -- and it would be pretty ineffective if that's all it protected against. The First Amendment also protects your right not to be persecuted, injured, or otherwise retaliated against by the government for making protected speech. That's why, even though your employer may be able to fire you for making certain political statements (as long as there is no state law granting such statements affirmative protection even from private actors), the government can't fine you for making them, and your employer has no right to sue you for making them. Defamation is an exception to this rule, but that doesn't mean that defamation is an area of the law that First Amendment jurisprudence doesn't touch on. It means that defamation has been found not to be protected by the First Amendment, meaning that the government CAN make laws restricting it -- because the right to free speech is not absolute. The analogy is not to buying airtime, because it's not a question of having to purchase the right to make damaging statements -- it would be a violation of the First Amendment, for instance, if a website could successfully sue you, after the fact, for posting comments without paying a fee to do so (assuming that there was no valid contract between you and the website requiring such payment). In essence, it's the difference between an affirmative charge/fine for making speech versus paying for a particular means of making that speech.
But maybe downmodding is the punishment I deserve for trying to have a thoughtful and analytical discussion about jurisprudence with internet backseat lawyers...
Because, in the US, you can sue for any reason (even faulty reasoning or unactionable claims) with any stipulation on what you are seeking, generally speaking. Different localities have differing laws to mitigate this type of stupidity, but I guess not that county.
A claim for abuse of process never operates to automatically bar a lawsuit against you before it happens; that would require the law to be omniscient, which it isn't and doesn't purport to be. Abuse of process is a tort claim, and it's fundamental to tort claims that you must be damaged before you can seek recovery for the wrong. As far as I'm aware, every legal jurisdiction in the US recognizes some form of abuse of process tort -- she just wouldn't be able to file a lawsuit against him for it until she has a basis for it, and generally speaking, the basis for the tort doesn't arise until you've won the first lawsuit (thereby evidencing its abusive nature).
Now that's certainly interesting. Claiming that he isn't licensed is susceptible to a defamation claim if false. The other portions of it are a lot fuzzier, and assuming she actually did file a police report, the jewelry stuff is probably not actionable as defamation since she's technically reporting facts, unless he can show that the filing of the report itself was blatantly malicious/completely and utterly baseless. I can't imagine him getting mileage out of anything else written in the review -- it's all close enough to opinion that I don't think it's terribly likely that he'd get very far with it.
Keep in mind that you can claim any amount of damages you want in a lawsuit, and you can sue anyone for anything (subject to possible liability for abuse of process, bad faith, and similar laws designed to curb harassing lawsuits). The numbers look big and scary, but it's very unlikely he'd be able to demonstrate that her review was responsible for that much damage to him, even if he was able to persuade a judge that the review is defamatory (from reading it, I'd say he'd have to make a pretty strong showing -- and who knows what the facts are, maybe everything she wrote really and truly is a lie -- we have no way of knowing). Yes, it certainly is frustrating to be sued and have to deal with big threatening numbers like $750,000, but always remember that the rule of thumb really and truly is that, as long as you're being an overall decent and honest person, it's really really unlikely that you'll wind up having to pay out a huge judgment to some jackhole who decides to sue you without any legitimate basis. I'm not saying it never happens, but I've been a litigator for almost ten years, and I have not once in my career seen someone I believed to be a legitimately innocent/upstanding civil defendant have to pay more than a relatively low sum (nuisance damages -- sucks, but at least it's not almost a million bucks). I have, conversely, seen plaintiffs who were probably wronged in some manner walk away with legal fees that exceed their recovery (or obtain no recovery at all), which also sucks, but in fairness, they picked their lawyers and opted to take the risk. (I've repped both plaintiffs and defendants, and I've had clients who were pristine and clients who frankly fucked up, and my assessment of who "should" have won is presented here independent of which side I was on). The system isn't perfect, but copyright cases aside (because, yeah, that area of the law IS legitimately fucked), on the civil side of things, in my experience it's apocryphal for a plaintiff to get a big win in a case they had no business whatsoever winning.
The courts are part of the government. When you ask a court, i.e., the government, to require someone to pay you money for having said something, you are asking the government to punish someone for having spoken, based on the content of that speech -- in other words, PRECISELY the sort of thing that the First Amendment addresses. So this case actually has a LOT to do with the freedom of speech.
The thing is, even though Americans like to throw around the words "freedom of speech" like they're some kind of talismanic defense to government action, they're not. The First Amendment is not absolute. None of our laws are absolute, including, yes, the part of our laws that comprise the Constitution. There are plenty of kinds of speech that the government can regulate. The meaning of the phrase "abridging the freedom of speech" has been hacked out and analyzed extensively by the federal courts. You could spend an entire career studying First Amendment jurisprudence and still have unexplored permutations. On its face, a successful lawsuit for defamation is the government using its power to inhibit an individual's right to speak, based on the content of that speech. On its face, that's a First Amendment issue. ALL THAT THIS MEANS is that the government must analyze the inhibition of speech within the context of First Amendment jurisprudence to determine whether government action would VIOLATE the First Amendment. That's how this works. A "First Amendment issue" doesn't translate into "free speech, end of story." All it means is that there's an analytical step we need to take to make sure we aren't infringing on important legal rights. Basically, that's how the courts "check" the executive and the legislature.
(1) First Amendment applies to states, too, so if you're focusing on the word "Congress," you're focusing on the wrong part of the Amendment.
(2) The pertinent part of the Amendment is "abridging the freedom of speech," and when you give a group of academic nerds like the Supremes an excuse to analyze and pick apart a juicy bit of text like that, you wind up with all kinds of interesting and detailed legal opinions delineating VERY SPECIFICALLY just what those five words mean and what their required effect is -- and you STILL wind up with all kinds of nebulous regions and margins where the application is not wholly clear a priori.
Bottom line is, Constitutional law is not simple, it shouldn't be simple, and anyone who claims it is and/or should be has about as much business writing and interpreting law as a three-year-old has voting for president.
The fact that it isn't IMPLICATED by defamation laws does not mean it doesn't APPLY. The First Amendment most definitely applies to defamation laws; it's simply that defamation laws that fit within certain guidelines of acceptable restrictions on speech have been held not to run afoul of the First Amendment. Same thing with obscenity laws, laws against incitement or fighting words, etc. The First Amendment applies to everything to do with speech -- it's just that it applies differently to different things, because the First Amendment does not actually protect any and all speech.
Lawyers in the UK aren't free, and there are plenty of lower-cost lawyers in the US. It is true that court costs have been going up as government funding for the courts goes down, creating barriers to access to justice for plaintiffs and defendants alike -- perhaps somewhat ironically, this is in part because the courts are an easy target due to the blithely-swallowed meme that America is particularly litigious, and/or that civil litigation is some kind of ticket to easy street. And it is certainly also true that big fish sometimes play dirty tricks like burying the other side in paperwork to strong-arm a settlement, but, again, that's not inherent to the US system, and a clever lawyer can find cost-effective ways to protect his or her client's interests.
But perpetuating the meme that there is no real justice in the US is precisely the sort of thing that allows the politicians to get away with undercutting the justice system. The public doesn't trust judges or lawyers, so the politicians have an easy target when it's time for budget negotiations, and the entire civil justice system suffers for it. So funny enough, by disparaging the US court system (without offering any actual facts, statistics, or comparative surveys of US versus UK litigation, naturally), you're perpetuating the ignorant, unfair stereotypes about it that eventually result in actual harm to overall justice. But hey, what do you care -- not like you're an American who's gonna be hurt by it, right?
Almost. It doesn't have to be malicious unless the person in question is considered a public figure -- I doubt that this contractor would qualify as a public figure. He would, however, have to demonstrate that she knew or should have known it was false (or spoke in reckless disregard of the truthfulness or falsity of the statement). Because she accused him of a crime, it qualifies as defamation per se if it's false. (At least, that's how defamation law works in California -- I assume it's about the same in Virginia, as this isn't one of those torts that tends to work differently from jurisdiction to jurisdiction).
in a single payer system where even the treating physicians are working for the government.
I'm sure there are countries where all of the doctors literally work for the government, but what you're describing is actually socialism, which (Republican lies notwithstanding) is worlds different from single payer. Particularly when we're talking about anything that has a snowball's chance in hell of ever happening in America, this is a critical distinction to keep in mind, and throwaway comments like this suggest either a misunderstanding of important underlying principles or a subtle attempt at intellectual sleight-of-hand.
Cancer drugs are a prime example of this where some drugs, despite their effectiveness on certain patients who may have originally received treatment in the US, are denied as treatments in Canada because they are not on the approved list for that particular type of cancer. This leads to the patients bringing the Province to court in the hopes of overturning their decisions, which may happen but even in the good cases where it does may take years.
It's really no better in the US. It's just that here, to add insult to injury, the people denying the claims are making scads of profit off of it at the same time. Not to mention, there's no presumptive right to review, since it's all contract-based. If you want to challenge an insurance company's decision, you have to pay thousands of dollars in out-of-pocket court costs and lawyer fees just to have the opportunity to make an ARGUMENT that the insurer breached its contract with you. And, before the ACA, as an insured you had virtually no presumptive legal rights -- the insurer was free to write the shittiest, most one-sided contract in the world, and short of lucking out and finding a sympathetic judge*, you'd be SOL if your contract gave them sufficient discretion to deny arguably legitimate payment claims.
*Btw, you need a sympathetic judge to even have a chance to present your case to a jury -- if the judge doesn't like your case, you can get thrown out before trial and your only option is an expensive, years-long appeals process. Oh yeah, and the budgets for the federal court system and pretty much every state judiciary are getting hacked and slashed left and right, since we're in a recession and "you need to pay more in taxes to fund the court system" for some reason doesn't have the same persuasive appeal as "we need to take money from these government departments to give money to firefighters and schools" -- the net effect being that if you're a little guy with a legitimate civil case but no money, you're pretty much fucked. If you're a big corporation that makes a habit of inflicting negative externalities on your customers and/or consumers generally, this is a fantastic development. I was recently at a local bar event and a defense lawyer who represents insurance companies piped up, during a discussion about how California's judiciary is being slowly bled to death by the legislature, suggesting that we make up for the shortfall in court funding by simply raising the initial filing fees from a few hundred to a few thousand. A few thousand, of course, is nothing to an insurance company with a legal budget in the millions (especially since it will likely LOWER costs overall by increasing plaintiffs' barriers to access to the justice system and thereby disincentivizing litigation in the first instance), but it's the difference between being able to pay the bills and defaulting on your credit cards/getting evicted for the average struggling consumer. And... I better stop before I get going on a rant about the bullshit anti-consumer propaganda that is the tort reform movement... (I rep both plaintiffs AND defendants, btw -- I'm by no means an exclusive plaintiff's lawyer, I just know the smell of bullshit when I detect it).
Medicaid is free. Lots of other things are very cheap, or free, if you are at the bottom of the income scale.
Actually, it's the other way around. People who have more money and can afford to buy things in bulk, for instance, get better prices on virtually everything. People who have economic mobility also have better bargaining power and are better positioned to negotiate down prices. People with sufficiently high liquid assets have access to free banking and cheap credit -- whereas poor people, when they're lucky enough to find jobs that pay a reasonable amount, often find themselves unable to so much as CASH THEIR PAYCHECKS without getting charged for it (and you just try going to your employer and asking to be paid in cash instead of by check. I'm sure that'll work out real well for you). Not to mention, when you have liquid assets/a rainy day fund/etc., you're more likely to be able to float unanticipated expenses without subjecting yourself to extortionate interest rates. And even if the expenses are high enough that you have to borrow to pay them, as noted, you have much better access to cheap credit. Try being poor and getting a loan to pay for your brake replacement. These days, you'll be LUCKY to get approved at 25% APR on a low-limit credit card if your credit score is below, say, 700.
And Medicaid? Oh man. Have you ever tried to qualify for government aid? Fuck, have you ever even filled out a government form other than a driver's license application? Guess who has an easier time proving that they qualify for government aid? Oh, yeah, the people who've had access to sufficient educational resources to understand the legal requirements for qualifying, and to actually, you know, know what their damn rights even ARE. I've met many people on various forms of government aid. Almost to a person, the ones getting any government money worth talking about are people who are educated and financially stable -- and white, by the way.
I'm beginning to wonder if you've ever even MET a legitimately poor person if you actually seriously think that **anything** is cheaper/easier for poor people.
Wish I could mod up your comment. This is exactly the problem. If they do anything other than follow the compliance/response procedures outlined by the DMCA and applicable case law, they're at risk of facing liability for copyright infringement.
Lawyer here. This isn't my practice area but my understanding is that the relative handful of abuse of process suits that have been filed for bogus takedown notices have resulted in a mixed bag, and the Supremes haven't ruled yet on whether faulty notices can serve as the basis for an abuse of process lawsuit.
Assuming that the takedown notices identified some illegal sites mixed in with legal ones, there's an argument to be made that Google had a legal obligation to comply. It may have simply been acting on the advice of its lawyers. Acting in one's own self-interest isn't the same as caving.
I don't like what they're doing any more than you do, but we need to be more thoughtful than this. This is much bigger and much more important than just greedy movie studios. They're asking Google to give them total information control -- if they were asking the government to do it, it would be a laughably obvious violation of the First Amendment. But because it's Google, magically there are no free speech implications because, hey, private industries can do whatever they want, because Amurica.
We're lucky -- Google won't do it. But what about whoever eventually replaces Google?
Don't be naive. The movie studios (like every powerful organization) understand EXACTLY what the internet's about, and EXACTLY how much potential it has for gain, both good and ill. The problem is that what they want for the internet doesn't line up with what the average consumer wants for the internet -- and, hey, how about that, it's the age-old tale of big guy versus little guy with new toys and tools.
The movie studios aren't stupid. Laughing at them over this is exactly the wrong response. And, by the way, every time this discussion gets reduced into "piracy" and "DRM," the entire world suffers for it, because it allows the incredible power and importance of instant, uninhibited worldwide communication to be boiled down to nothing more important than "free movies," which allows the big players (not just the movie studios, obv) to cheapen the discussion and gain control.
Let me guess American I presume, because talking of simplistic rhetoric there seems to be only one nationality that you can pick based on the same arguments from miles away. To be honest as an non Arab European guy it really sometimes doesn't surprise me that the US is such a hatred country in those parts of the world.
... from the guy who just pointed out that it isn't fair to paint all members of some given sociopolitical group with the same broad brush. Yeah...
As a secular, non-Arab, non-Jewish American who finds religious faith and ethnic tolerance in general pretty distasteful, I'm usually among the first to criticize my fellow citizens for ignorance and simplistic thinking. But Americans are hardly the only nationality guilty of overly-simplistic thinking -- let's not forget that a good chunk of the western world, which includes numerous non-American countries, gets its news from media sources controlled by a relatively small number of moguls who have an interest in keeping ALL of us ignorant, fat, and bored.
Most PEOPLE are pretty ignorant of what goes on in the Middle East, in no small part because most of the news coming out of the region is pretty badly skewed before it gets to anyone outside of the region. For that matter, from what I understand from the family I have living in Israel, even plenty of the news INSIDE the region is skewed, same as anywhere, really:-P
Like you, I condemn terrorism of any kind, and I suspect we're in agreement that the conflict is a lot more complicated than most people acknowledge in these sorts of discussions. From where I sit, I see bad acts by both sides, not that any one side's bad attacks automatically justify whatever the other side does as retaliation, etc. And, of course, talking about "who started it" is both counterproductive and, funny enough, almost never addresses things like the British conquest of Palestine that preceded the creation of the state of Israel by the UN. I suspect that embarrassment over western Europe's role in the conflict is part of why many liberals in western Europe trend pro-Palestinian these days -- which, hey, how about that, brings my comment full circle.
They had a serious head start on us as late as around, say, 1400.
"They"? "Us"? Are you even Israeli? And, even if you are, how, exactly, is it that you, personally, have been at war for over 600 years? Do you have a picture of a decrepit skeleton hiding in your attic?
Yes, I'm obviously being snarkily melodramatic, but seriously, this shit right here is EXACTLY how fuckbeds of crazy devolve into permanent warzones. What are you, the fucking Capulets and Montagues?? Jesus Christ, humanity.
Because, whatever else you can say about Israel, they aren't completely fucking stupid (as their resistance to Anonymous, who's taken down their share of powerful folks, tends to demonstrate), and they know that using nukes would piss off the United States. Even dogs know better than to bite the hand that feeds (simmer down, I'm not saying Israelis are dogs -- they're infinitely smarter than the US, quite frankly).
"this infringing conduct has outraged Tolkien's devoted fan base, causing irreparable harm to Tolkien's legacy and reputation and the valuable goodwill generated by his works."
Slashdot Mirror
Yup. Precisely. And you can expect court costs to continue to rise as we siphon money away from the judiciary, forcing the civil courts to gradually become self-funding. It's easy to snark about legal fees, and certainly, hiring a lawyer ain't cheap. But, while having a lawyer is a major advantage, it isn't a requirement to enter the court system, whereas things like filing fees are. Every person has the right to seek redress before the court on his or her own behalf, period. But when you de-fund the entire court system such that the courts have to require people to pay higher and higher amounts in order to be heard, you create a situation where the only ones who have access to justice are those who can afford to purchase it.
You know, every time two parties go to court having paid "reasonable" legal fees, one party loses. I'm sure they're likely to think that if only they had spent more that they'd have done better.
I've no doubt they think that very thing. Regret is one of the most, er, regrettable human emotions we have. It's utterly useless yet stubbornly persistent. It's easy to tell ourselves that having done something differently would have caused a different outcome, and impossible to prove -- and also, unfortunately, to falsify.
Judging by most investigative journalism I've seen, I'm inclined to agree.
Care to give an example of the investigative journalism you're referring to? While it's certainly true that price can act as a proxy of sorts for quality, it's far from a perfect correlation, and testing those sorts of things is heavily subject to confirmation bias.
That said, just the stories of holiday parties alone gives me plenty of contempt for the entire profession. If my employer did half the nonsense the average law firm does around the holidays, they'd be sued out of existence.
I can't tell if you're talking about the unjustifiably lavish expenditures, the excessive drinking, or the sexual harassment. All exist, certainly (though the first far less so in this economy), but the same kinds of charges could easily and quite rightly be leveled at startup culture -- as well as banking and finance, and, hell, pretty much any industry where loads of money get thrown around. Do you hold the same amount of contempt for technology entrepreneurs as a whole, then?
There are numerous amendments. So the Constitution changes with time. Hence, there is no one Constitution.
An amendment CHANGES the Constitution. It doesn't create a whole new one. There's only one Constitution, and even if the words don't change, the interpretation does. There's no "original" Constitution in the sense of some concrete thing that we can point to and say "it used to be that," except, I guess, to the extent that you're literally only talking about the specific words on the page, which... okay? But... that doesn't really get us anywhere. The Constitution is the Constitution, and no one part of it is somehow more important than another just because the words have been there longer. If anything, the newer parts of it could be considered more important, as the newer parts are the result of added learning and experience beyond what we had, collectively as a country, at the time of first drafting.
You know what you call the party who hires a "lower-cost" lawyer? The LOSER. You may as well not show up and lose by default, at least then you don't have to pay the lawyer.
Ahhhhhhh, now I get it. Here I thought you were just an ill-informed, disgruntled anti-lawyer type, but now I see that you're actually a big firm lawyer trying to justify your ludicrous rates. I used to work in a big law firm with lots of people like you. Even thought I liked it, didn't want to get laid off when the recession hit. Years later and working for a small firm that charges actually affordable rates, pays me a lot less, and lets me have as much of a life as I want, I realize now how completely fucking miserable I was in biglaw, as were the vast majority of the other lawyers I worked with.
If there's any part of you that can still be gotten through to, please listen, friend: it's never too late to get out. I promise you, it's not as scary out here as you think it is. There is life on the other side of the thousand-pound billable hour, and it's pretty goddamned good.
Jesus Christ. Here's how this works: the courts don't have power to issue any orders that are not authorized by law (i.e., the legislature, and as has been pointed out at length in this discussion, the First Amendment applies to state legislatures as well as Congress). If the court is doing something, it's because (1) it's enforcing a law enacted by the legislature (or rule promulgated by an executive agency, subject to the laws enacted by the legislature), or (2) it's overstepping its constitutional authority. Either way, if the court is issuing an order that abridges the freedom of speech, as that term is defined through applicable case law, then the court has violated the First Amendment (and, to be clear, the Supreme Court has consistently held that courts, like legislatures, are bound by the First Amendment). Yes, I used shorthand in my earlier comment. Didn't realize that folks around here needed an explanation of every nitpicky detail of how law works laid out in order to understand broader points. I officially apologize for painting a picture of trees and hoping people would understand that it was a forest.
I'm not even sure what point you're trying to make. Are you saying defamation isn't speech? Why? Acknowledging that it is speech neither means it's protected by the First Amendment nor threatens the First Amendment's effectiveness. Nuance is preferable to absolutism, even though it does result in some measure of imperfection. Clinging to the idea that the Constitution is full of easy-to-understand bright lines is how radical movements are formed. The Constitution is a patchwork of competing ideas and points of view developed primarily by large numbers of rich, straight, Anglo-Saxxon religious white men over the course of a couple hundred years or so. And Constitutional JURISPRUDENCE? The notion that there's something magical about Supreme Court decisions is laughable. Yes, precedent is important, because stability is important. Societies need some basic level of stability to enable growth, which requires calculated risk-taking. But there's nothing magical about the Constitution or its interpretation, and regarding it with the borderline reverence that many do is the path to absurdity and cultural stagnation.
Ex post facto laws are laws that are written to retroactively alter the legal effect of actions that have already occurred -- it's usually used in the criminal context. As you yourself already noted, a court case isn't legislation, so no, a website suing you for not paying an amount you didn't agree to pay isn't an ex post facto issue. The scenario I was discussing was one where the court would have already had the power to order you to pay damages to the website (that's the First Amendment issue -- there's an operation of law that permits you to be sued for having made speech. That's not ex post facto, even though intuitively it might seem that way because we don't live in a society with that law, so it's natural to assume it's a new creation if it happens in a hypothetical world). And I'm not sure what you mean by "original Constitution." There's only one Constitution, unless you're trying to contrast the Articles of Confederation?
This discussion has moved well beyond my interest at this point, but I would like to thank y'all for reminding me that apparently law school had some value, after all. Shit, I wonder if this is how my doctor feels when I self-diagnose on WebMD.
Did you read the entirety of my comment? You seem not to have understood it, given that you apparently think I said the First Amendment protects defamation, which is the opposite of what I said. The First Amendment protects against more than just prior restraint -- and it would be pretty ineffective if that's all it protected against. The First Amendment also protects your right not to be persecuted, injured, or otherwise retaliated against by the government for making protected speech. That's why, even though your employer may be able to fire you for making certain political statements (as long as there is no state law granting such statements affirmative protection even from private actors), the government can't fine you for making them, and your employer has no right to sue you for making them. Defamation is an exception to this rule, but that doesn't mean that defamation is an area of the law that First Amendment jurisprudence doesn't touch on. It means that defamation has been found not to be protected by the First Amendment, meaning that the government CAN make laws restricting it -- because the right to free speech is not absolute. The analogy is not to buying airtime, because it's not a question of having to purchase the right to make damaging statements -- it would be a violation of the First Amendment, for instance, if a website could successfully sue you, after the fact, for posting comments without paying a fee to do so (assuming that there was no valid contract between you and the website requiring such payment). In essence, it's the difference between an affirmative charge/fine for making speech versus paying for a particular means of making that speech.
But maybe downmodding is the punishment I deserve for trying to have a thoughtful and analytical discussion about jurisprudence with internet backseat lawyers...
Because, in the US, you can sue for any reason (even faulty reasoning or unactionable claims) with any stipulation on what you are seeking, generally speaking. Different localities have differing laws to mitigate this type of stupidity, but I guess not that county.
A claim for abuse of process never operates to automatically bar a lawsuit against you before it happens; that would require the law to be omniscient, which it isn't and doesn't purport to be. Abuse of process is a tort claim, and it's fundamental to tort claims that you must be damaged before you can seek recovery for the wrong. As far as I'm aware, every legal jurisdiction in the US recognizes some form of abuse of process tort -- she just wouldn't be able to file a lawsuit against him for it until she has a basis for it, and generally speaking, the basis for the tort doesn't arise until you've won the first lawsuit (thereby evidencing its abusive nature).
Now that's certainly interesting. Claiming that he isn't licensed is susceptible to a defamation claim if false. The other portions of it are a lot fuzzier, and assuming she actually did file a police report, the jewelry stuff is probably not actionable as defamation since she's technically reporting facts, unless he can show that the filing of the report itself was blatantly malicious/completely and utterly baseless. I can't imagine him getting mileage out of anything else written in the review -- it's all close enough to opinion that I don't think it's terribly likely that he'd get very far with it.
Keep in mind that you can claim any amount of damages you want in a lawsuit, and you can sue anyone for anything (subject to possible liability for abuse of process, bad faith, and similar laws designed to curb harassing lawsuits). The numbers look big and scary, but it's very unlikely he'd be able to demonstrate that her review was responsible for that much damage to him, even if he was able to persuade a judge that the review is defamatory (from reading it, I'd say he'd have to make a pretty strong showing -- and who knows what the facts are, maybe everything she wrote really and truly is a lie -- we have no way of knowing). Yes, it certainly is frustrating to be sued and have to deal with big threatening numbers like $750,000, but always remember that the rule of thumb really and truly is that, as long as you're being an overall decent and honest person, it's really really unlikely that you'll wind up having to pay out a huge judgment to some jackhole who decides to sue you without any legitimate basis. I'm not saying it never happens, but I've been a litigator for almost ten years, and I have not once in my career seen someone I believed to be a legitimately innocent/upstanding civil defendant have to pay more than a relatively low sum (nuisance damages -- sucks, but at least it's not almost a million bucks). I have, conversely, seen plaintiffs who were probably wronged in some manner walk away with legal fees that exceed their recovery (or obtain no recovery at all), which also sucks, but in fairness, they picked their lawyers and opted to take the risk. (I've repped both plaintiffs and defendants, and I've had clients who were pristine and clients who frankly fucked up, and my assessment of who "should" have won is presented here independent of which side I was on). The system isn't perfect, but copyright cases aside (because, yeah, that area of the law IS legitimately fucked), on the civil side of things, in my experience it's apocryphal for a plaintiff to get a big win in a case they had no business whatsoever winning.
The courts are part of the government. When you ask a court, i.e., the government, to require someone to pay you money for having said something, you are asking the government to punish someone for having spoken, based on the content of that speech -- in other words, PRECISELY the sort of thing that the First Amendment addresses. So this case actually has a LOT to do with the freedom of speech.
The thing is, even though Americans like to throw around the words "freedom of speech" like they're some kind of talismanic defense to government action, they're not. The First Amendment is not absolute. None of our laws are absolute, including, yes, the part of our laws that comprise the Constitution. There are plenty of kinds of speech that the government can regulate. The meaning of the phrase "abridging the freedom of speech" has been hacked out and analyzed extensively by the federal courts. You could spend an entire career studying First Amendment jurisprudence and still have unexplored permutations. On its face, a successful lawsuit for defamation is the government using its power to inhibit an individual's right to speak, based on the content of that speech. On its face, that's a First Amendment issue. ALL THAT THIS MEANS is that the government must analyze the inhibition of speech within the context of First Amendment jurisprudence to determine whether government action would VIOLATE the First Amendment. That's how this works. A "First Amendment issue" doesn't translate into "free speech, end of story." All it means is that there's an analytical step we need to take to make sure we aren't infringing on important legal rights. Basically, that's how the courts "check" the executive and the legislature.
(1) First Amendment applies to states, too, so if you're focusing on the word "Congress," you're focusing on the wrong part of the Amendment.
(2) The pertinent part of the Amendment is "abridging the freedom of speech," and when you give a group of academic nerds like the Supremes an excuse to analyze and pick apart a juicy bit of text like that, you wind up with all kinds of interesting and detailed legal opinions delineating VERY SPECIFICALLY just what those five words mean and what their required effect is -- and you STILL wind up with all kinds of nebulous regions and margins where the application is not wholly clear a priori.
Bottom line is, Constitutional law is not simple, it shouldn't be simple, and anyone who claims it is and/or should be has about as much business writing and interpreting law as a three-year-old has voting for president.
The fact that it isn't IMPLICATED by defamation laws does not mean it doesn't APPLY. The First Amendment most definitely applies to defamation laws; it's simply that defamation laws that fit within certain guidelines of acceptable restrictions on speech have been held not to run afoul of the First Amendment. Same thing with obscenity laws, laws against incitement or fighting words, etc. The First Amendment applies to everything to do with speech -- it's just that it applies differently to different things, because the First Amendment does not actually protect any and all speech.
Lawyers in the UK aren't free, and there are plenty of lower-cost lawyers in the US. It is true that court costs have been going up as government funding for the courts goes down, creating barriers to access to justice for plaintiffs and defendants alike -- perhaps somewhat ironically, this is in part because the courts are an easy target due to the blithely-swallowed meme that America is particularly litigious, and/or that civil litigation is some kind of ticket to easy street. And it is certainly also true that big fish sometimes play dirty tricks like burying the other side in paperwork to strong-arm a settlement, but, again, that's not inherent to the US system, and a clever lawyer can find cost-effective ways to protect his or her client's interests.
But perpetuating the meme that there is no real justice in the US is precisely the sort of thing that allows the politicians to get away with undercutting the justice system. The public doesn't trust judges or lawyers, so the politicians have an easy target when it's time for budget negotiations, and the entire civil justice system suffers for it. So funny enough, by disparaging the US court system (without offering any actual facts, statistics, or comparative surveys of US versus UK litigation, naturally), you're perpetuating the ignorant, unfair stereotypes about it that eventually result in actual harm to overall justice. But hey, what do you care -- not like you're an American who's gonna be hurt by it, right?
Almost. It doesn't have to be malicious unless the person in question is considered a public figure -- I doubt that this contractor would qualify as a public figure. He would, however, have to demonstrate that she knew or should have known it was false (or spoke in reckless disregard of the truthfulness or falsity of the statement). Because she accused him of a crime, it qualifies as defamation per se if it's false. (At least, that's how defamation law works in California -- I assume it's about the same in Virginia, as this isn't one of those torts that tends to work differently from jurisdiction to jurisdiction).
in a single payer system where even the treating physicians are working for the government.
I'm sure there are countries where all of the doctors literally work for the government, but what you're describing is actually socialism, which (Republican lies notwithstanding) is worlds different from single payer. Particularly when we're talking about anything that has a snowball's chance in hell of ever happening in America, this is a critical distinction to keep in mind, and throwaway comments like this suggest either a misunderstanding of important underlying principles or a subtle attempt at intellectual sleight-of-hand.
Cancer drugs are a prime example of this where some drugs, despite their effectiveness on certain patients who may have originally received treatment in the US, are denied as treatments in Canada because they are not on the approved list for that particular type of cancer. This leads to the patients bringing the Province to court in the hopes of overturning their decisions, which may happen but even in the good cases where it does may take years.
It's really no better in the US. It's just that here, to add insult to injury, the people denying the claims are making scads of profit off of it at the same time. Not to mention, there's no presumptive right to review, since it's all contract-based. If you want to challenge an insurance company's decision, you have to pay thousands of dollars in out-of-pocket court costs and lawyer fees just to have the opportunity to make an ARGUMENT that the insurer breached its contract with you. And, before the ACA, as an insured you had virtually no presumptive legal rights -- the insurer was free to write the shittiest, most one-sided contract in the world, and short of lucking out and finding a sympathetic judge*, you'd be SOL if your contract gave them sufficient discretion to deny arguably legitimate payment claims.
*Btw, you need a sympathetic judge to even have a chance to present your case to a jury -- if the judge doesn't like your case, you can get thrown out before trial and your only option is an expensive, years-long appeals process. Oh yeah, and the budgets for the federal court system and pretty much every state judiciary are getting hacked and slashed left and right, since we're in a recession and "you need to pay more in taxes to fund the court system" for some reason doesn't have the same persuasive appeal as "we need to take money from these government departments to give money to firefighters and schools" -- the net effect being that if you're a little guy with a legitimate civil case but no money, you're pretty much fucked. If you're a big corporation that makes a habit of inflicting negative externalities on your customers and/or consumers generally, this is a fantastic development. I was recently at a local bar event and a defense lawyer who represents insurance companies piped up, during a discussion about how California's judiciary is being slowly bled to death by the legislature, suggesting that we make up for the shortfall in court funding by simply raising the initial filing fees from a few hundred to a few thousand. A few thousand, of course, is nothing to an insurance company with a legal budget in the millions (especially since it will likely LOWER costs overall by increasing plaintiffs' barriers to access to the justice system and thereby disincentivizing litigation in the first instance), but it's the difference between being able to pay the bills and defaulting on your credit cards/getting evicted for the average struggling consumer. And... I better stop before I get going on a rant about the bullshit anti-consumer propaganda that is the tort reform movement... (I rep both plaintiffs AND defendants, btw -- I'm by no means an exclusive plaintiff's lawyer, I just know the smell of bullshit when I detect it).
Medicaid is free. Lots of other things are very cheap, or free, if you are at the bottom of the income scale.
Actually, it's the other way around. People who have more money and can afford to buy things in bulk, for instance, get better prices on virtually everything. People who have economic mobility also have better bargaining power and are better positioned to negotiate down prices. People with sufficiently high liquid assets have access to free banking and cheap credit -- whereas poor people, when they're lucky enough to find jobs that pay a reasonable amount, often find themselves unable to so much as CASH THEIR PAYCHECKS without getting charged for it (and you just try going to your employer and asking to be paid in cash instead of by check. I'm sure that'll work out real well for you). Not to mention, when you have liquid assets/a rainy day fund/etc., you're more likely to be able to float unanticipated expenses without subjecting yourself to extortionate interest rates. And even if the expenses are high enough that you have to borrow to pay them, as noted, you have much better access to cheap credit. Try being poor and getting a loan to pay for your brake replacement. These days, you'll be LUCKY to get approved at 25% APR on a low-limit credit card if your credit score is below, say, 700.
And Medicaid? Oh man. Have you ever tried to qualify for government aid? Fuck, have you ever even filled out a government form other than a driver's license application? Guess who has an easier time proving that they qualify for government aid? Oh, yeah, the people who've had access to sufficient educational resources to understand the legal requirements for qualifying, and to actually, you know, know what their damn rights even ARE. I've met many people on various forms of government aid. Almost to a person, the ones getting any government money worth talking about are people who are educated and financially stable -- and white, by the way.
I'm beginning to wonder if you've ever even MET a legitimately poor person if you actually seriously think that **anything** is cheaper/easier for poor people.
Wish I could mod up your comment. This is exactly the problem. If they do anything other than follow the compliance/response procedures outlined by the DMCA and applicable case law, they're at risk of facing liability for copyright infringement.
Lawyer here. This isn't my practice area but my understanding is that the relative handful of abuse of process suits that have been filed for bogus takedown notices have resulted in a mixed bag, and the Supremes haven't ruled yet on whether faulty notices can serve as the basis for an abuse of process lawsuit.
Assuming that the takedown notices identified some illegal sites mixed in with legal ones, there's an argument to be made that Google had a legal obligation to comply. It may have simply been acting on the advice of its lawyers. Acting in one's own self-interest isn't the same as caving.
How much should bloggers have to pay, then?
I don't like what they're doing any more than you do, but we need to be more thoughtful than this. This is much bigger and much more important than just greedy movie studios. They're asking Google to give them total information control -- if they were asking the government to do it, it would be a laughably obvious violation of the First Amendment. But because it's Google, magically there are no free speech implications because, hey, private industries can do whatever they want, because Amurica.
We're lucky -- Google won't do it. But what about whoever eventually replaces Google?
Don't be naive. The movie studios (like every powerful organization) understand EXACTLY what the internet's about, and EXACTLY how much potential it has for gain, both good and ill. The problem is that what they want for the internet doesn't line up with what the average consumer wants for the internet -- and, hey, how about that, it's the age-old tale of big guy versus little guy with new toys and tools.
The movie studios aren't stupid. Laughing at them over this is exactly the wrong response. And, by the way, every time this discussion gets reduced into "piracy" and "DRM," the entire world suffers for it, because it allows the incredible power and importance of instant, uninhibited worldwide communication to be boiled down to nothing more important than "free movies," which allows the big players (not just the movie studios, obv) to cheapen the discussion and gain control.
Gah... proofread four times and still wrote "tolerance" where I meant to write "INtolerance." Dammit.
Let me guess American I presume, because talking of simplistic rhetoric there seems to be only one nationality that you can pick based on the same arguments from miles away. To be honest as an non Arab European guy it really sometimes doesn't surprise me that the US is such a hatred country in those parts of the world.
... from the guy who just pointed out that it isn't fair to paint all members of some given sociopolitical group with the same broad brush. Yeah...
As a secular, non-Arab, non-Jewish American who finds religious faith and ethnic tolerance in general pretty distasteful, I'm usually among the first to criticize my fellow citizens for ignorance and simplistic thinking. But Americans are hardly the only nationality guilty of overly-simplistic thinking -- let's not forget that a good chunk of the western world, which includes numerous non-American countries, gets its news from media sources controlled by a relatively small number of moguls who have an interest in keeping ALL of us ignorant, fat, and bored.
Most PEOPLE are pretty ignorant of what goes on in the Middle East, in no small part because most of the news coming out of the region is pretty badly skewed before it gets to anyone outside of the region. For that matter, from what I understand from the family I have living in Israel, even plenty of the news INSIDE the region is skewed, same as anywhere, really :-P
Like you, I condemn terrorism of any kind, and I suspect we're in agreement that the conflict is a lot more complicated than most people acknowledge in these sorts of discussions. From where I sit, I see bad acts by both sides, not that any one side's bad attacks automatically justify whatever the other side does as retaliation, etc. And, of course, talking about "who started it" is both counterproductive and, funny enough, almost never addresses things like the British conquest of Palestine that preceded the creation of the state of Israel by the UN. I suspect that embarrassment over western Europe's role in the conflict is part of why many liberals in western Europe trend pro-Palestinian these days -- which, hey, how about that, brings my comment full circle.
They had a serious head start on us as late as around, say, 1400.
"They"? "Us"? Are you even Israeli? And, even if you are, how, exactly, is it that you, personally, have been at war for over 600 years? Do you have a picture of a decrepit skeleton hiding in your attic?
Yes, I'm obviously being snarkily melodramatic, but seriously, this shit right here is EXACTLY how fuckbeds of crazy devolve into permanent warzones. What are you, the fucking Capulets and Montagues?? Jesus Christ, humanity.
How do you know that?
Because, whatever else you can say about Israel, they aren't completely fucking stupid (as their resistance to Anonymous, who's taken down their share of powerful folks, tends to demonstrate), and they know that using nukes would piss off the United States. Even dogs know better than to bite the hand that feeds (simmer down, I'm not saying Israelis are dogs -- they're infinitely smarter than the US, quite frankly).
"this infringing conduct has outraged Tolkien's devoted fan base, causing irreparable harm to Tolkien's legacy and reputation and the valuable goodwill generated by his works."
"... unlike the highly-tasteful and not-at-all-kitschy official licensed merchandise we already signed off on!"