“Good” Victims and Hot Coffee

At this point we have all heard of both James Kirkland Batson and Clarence Earl Gideon and their respective cases. One person’s name you may have not heard of is Stella Liebeck. Her case may not have been criminal in nature, and her case was never going to make it to the Supreme Court, but I think she has something in common with Gideon and Batson.

And in fact, you probably have heard of Stella Liebeck’s case, but you most likely did not associate her name with her case. You already know the story. A woman spills coffee, which of course, is hot, on herself. Then, the woman sues McDonalds for millions of dollars and wins. And now frivolous lawsuits are out of control. 

Stella Liebeck was the plaintiff in the McDonalds hot coffee case, but that story you have heard does not even scratch the surface of the truth. The reason the story above is the one everyone knows is because of corporate smear campaign and the media bought it. We have been tricked, yet we still believe this case is the poster-child for lawsuits run amok.

The fact is McDonalds was serving their coffee at near boiling temperatures. And over the years this practice had burned hundreds of people with seemingly no consequences. Liebeck was hospitalized for eight days and had to undergo skin grafting during that time. She subsequently underwent medical treatment for another two years. (Source)

Liebeck was even unwilling to sue McDonalds initially. All she wanted was McDonalds to cover her actual out-of-pocket medical expenses, which amounted to $20,000. McDonalds offered her $800, and they refused to offer a penny more. Stella had no choice but to take McDonalds to court.

The truth is, Stella Liebeck is a hero. Not only was her claim completely valid, it was her case that brought to light a clearly unsafe business practice and the practice stopped before it killed someone. She was a working-class victim, and she took on a multi-billion-dollar corporation and won.

Stella Liebeck took on seemingly impossible odds and overcame those odds; however, Liebeck never received the acclaim she is due. She passed away in 2004.

What Liebeck has in common with Batson and Gideon is the fact that she was not necessarily a “good” victim. Batson and Gideon were criminals who were being tried for crimes they allegedly committed, and Liebeck through her own fault spilled the hot coffee on herself.

But the facts show Batson, Gideon, and Liebeck were victims who realized they had been wronged. And it was their cases that made the world a better place, even in some small manner, and even if it was not their goal to.

Reading the excerpt from Sally Engle Merry’s Rights Talk and the Experience of Law for class on Monday helped me understand the way society has treated Liebeck, as well as Batson and Gideon. I believe her exploration and explanation of the distinct experience for “good” victims and “bad” victims are part of the reason they are not viewed as heroes. 

I chose to write my last blog post on this subject because I believe it is important to note that the criminal justice system is not perfect. And while change can be achieved through it, you might still get dragged through the mud in the end. Batson and Gideon are not widely considered heroes who took on the criminal justice system, and Liebeck is not considered a hero at all, even though she did what seemed impossible.

However, as we learn about cases like these and these individuals I hope we remember that even if the odds are against us, we should not give up. That is what I believe is the real takeaway from these stories, even if some may never see it that way. 

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How De-Federalizing Government Could End Partisan Gridlock and Save America from the Next Civil War

Americans live in a nation divided along party lines. Political polarization hasn’t been this extreme since the United States broke apart 150 years ago for the Civil War. This chart, drawing from a dataset of Congressional votes, tracks partisan polarization since the Civil War. Higher numbers correspond to greater polarization (source):


A Pew Research Center analysis from 2014 showed that Americans grew dramatically more partisan in their beliefs since 1994 (source):

Finally, the presidential election map tells a similar story of polarization. I’m sure most Americans have heard about the “two Americas” by now: the coastal elite dominated by Democrat politics and the rural heartland dominated by Republican politics.

heres-the-basic-electoral-college-map-with-states-that-clinton-won-in-blue-and-states-that-trump-won-in-red-assuming-that-trumps-narrow-lead-in-michigan-holds.jpg.pngWhen the nation is as divided as during the Civil War, we may need to consider measures to de-escalate this extreme polarization before violence breaks out.

Many scholars have ideas about what causes this growing partisan divide. Geographical concentration of like-minded people is one popular theory backed up by empirical data. Others point to partisan media outlets like The Huffington Post that facilitate confirmation bias by filtering the news through an ideological lens.

Mainstream thinking ignores another significant reason for this polarization. Enabled by population growth and mass media, the U.S. political process plays out at a national level. The federal government is enormous and all-powerful. Because it is the national government, its decisions override local decisions in all 50 states.

Control of the national government alternates between Republicans and Democrats. Approval ratings for modern institutions of national politics (the W. Bush, Obama, and Trump presidencies; and the Congress during those periods) almost always remain below 50 percent. This suggests deep dissatisfaction with our national system of politics that transcends any one party, person, or period of time.

Our ‘one-size-fits-all’ approach to governance is not working.

Perhaps instead of trying to solve polarization, we should accept it as a reality of modern life and move on. It is still possible to integrate regional differences into our system of government by returning to an earlier form of American democracy.

This involves de-federalizing the American government. Let blue states like California do whatever they want and let red states like Texas do the exact opposite. Over time, individual U.S. states could become a laboratory for ideas.

Governor Greg Abbott’s proposed Constitutional amendments offer a preliminary blueprint for de-federalizing the United States government. At first glance, this looks like a Republican dream, but it also gives liberal states a lot of room to pursue their agenda.

Posted in Antifederalists, Democracy, Uncategorized | 2 Comments

Net (Profit) Neutrality

As has been the trend since the advent of the Trump administration in January, we’ve had an eventful week in American politics. Most notable, of course, was the failure of the American Healthcare Act, which resulted in the continued health coverage of 24 million Americans. However, with the secured protection of our health many may not have noticed that we are on our way to potentially losing some of the privacy benefits the Obama administration’s Federal Communications Commission worked to protect via the Broadband Consumer Privacy Proposal.

The Broadband Consumer Privacy Proposal established online privacy rules that essentially ensured that companies could only receive information about consumer browsing given permission from the user. Now that Ajit Pai (a former lawyer for Verizon) is in control of the FCC he’s bent on taking away these protections in favor of the companies who could benefit from knowing consumer browsing habits. With this information, these companies could then monitor people’s online activities as well as manipulate the content that these people will see. On Thursday, the Senate voted in favor of a bill that claims that since the Internet is technically considered a utility like electricity, the government has a right to collect information such as individual search history and then sell it to the company willing to pay the most for the information.

All of this should be pretty concerning to just about everyone who uses the Internet. In order to increase public awareness that the loss of this privacy is even at stake Private Internet Access, a company that provides virtual private networks bought out an entire page in the New York Times:0kc4jJDVgLGbOI0TSY8hwQfcCPoY6ADX-MtA2vilf2s

What is especially important to note here is that only members of the Republican Party are supporting this bill. Granted this isn’t terribly surprising since it puts more power into the hands of businesses, but it does seem surprising in the sense that it guarantees a “big government” presence in the homes of the American people. However, given the amount of money that Internet Service Providers have invested towards getting rid of Internet privacy restrictions it makes a bit more sense.2017_03_20-ISPs-Senators-table.r43799959460

Critics of this bill argue that it violates the Fourth Amendment which protects “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” and can only be violated given “probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” But here’s where it gets even trickier. Some claim that the Internet is within the public domain and so even though we may access it within the privacy of our own home the Fourth Amendment doesn’t really apply here. It’s a concept we discussed a bit more towards the beginning of the semester especially in respect to the Lawrence v. Texas case. How far can we stretch the Fourth Amendment? Is the Internet too broad and accessible to be considered someone’s private property? Do we value capitalist gain over consumer rights and privacy? I like to think that we should put the privacy and protection of the American people above potential profit, but there are 50 senators who don’t seem to share that mentality.


Senate Roll Call

Trump’s FCC Pick Quickly Targets Net Neutrality Rules 

Privacy News Online March 23 

Privacy News Online October 2016


Fourth Amendment 

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Of the Electors, by the Electors, for the Electors

It is strange to at least some, and ostensibly many, how a process invested with such immense power could be surrounded by so much controversy. Deviating from my usual commentary, I wanted to use this week’s post to weigh the Electoral College’s pros and the cons, the good and the bad, and the smart and the dumb.

The purpose of the Electoral College, as well as the justification for its existence, has been explained in each classroom to every student across the country. As the legend goes: the delegates of the constitutional convention were conflicted over how to best elect the president. Some proposed to elect the president through congressional election, and others opposed that method due to its inherent susceptibility to corruption and lack of independence. Some, such as James Madison, believed that the president should be elected by a majority mandate, although even he acknowledged the issues that would ensue: a lack of consensus due to the northern and southern states being deeply divided over slavery. And lastly, as well all know, the “founders” of the Constitution shared a profound apprehension of “mob-rule” or “tyranny of the majority,” fearing that an unqualified, potentially dangerous populist could rise to the most powerful position in the nation. The concerns were valid at the time, and I admit that perhaps there was an era when the Electoral College was a necessary and even competent method used to elect presidents. In the modern era, though, there is no rational reason for why unknown electors through an antiquated and arcane process should determine a president.

The most prevalent and seemingly eternal argument used to defend the Electoral College is the notion that “small states” or “rural citizens” will be underrepresented in a popular vote system. Now, aside from the fact that it is bizarre for anyone to posit that giving every citizen one, equal vote would somehow oppress rural farmers in Idaho, it is simply either dishonest or ignorant to claim that the current electoral system. Truthfully, a person’s vote in Wyoming is worth nearly four times more than the vote of someone in California. Additionally, a vote is worth exponentially more if the voter resides in a highly contested “swing-state.” Why should a person living in Florida or Ohio have more of say in the electoral process than a person from Massachusetts or Alabama? Until every person has a full and equal vote, it can be hard to explain how we live in a fair and effective democracy.


The only plausible reason for the Electoral College that I view as somewhat serious is the fact that it leaves states in charge of elections, which makes it harder for any faction to achieve massive election fraud; however, and obviously so, there is no justification for why states cannot still be responsible for recording the total number votes within their state, as they already do, and have those votes added to a national sum to decide the presidency.

Although it is not on its own a complete indictment on the insufficiencies of the system, the election of Donald Trump ironically devastates the last valid “argument” there was to defend the Electoral College; instead of preventing an unqualified, unstable and unpredictable tyrant from ascending to the nation’s highest office, the Electoral college ensured that it would come to be. Now, if anyone thinks that such a perspective is partisan or somehow impartial, I would implore them to look at the Hayes vs. Tilden election in 1876, which proves exactly how partisan and impartial the electoral system naturally is. When 20 electoral votes were in dispute across four states, the Republicans and Democrats came to a “behind the curtain” compromise that would elect Hayes as president while withdrawing federal troops from the South and, furthermore, ending the era of Reconstruction.


Regardless of my strong feelings against the Electoral College, I concede that the system does and has had its relatively few merits; however, after over two centuries of use and a less than 90 success rate, in terms of aligning with the popular vote winner, it is time we allow our electoral process to truly represent the will of the electorate.

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Trump’s Relationship with the Judicial System

Over the past week, President Trump’s travel ban was blocked by a federal court in Hawaii. It was also struck down by a federal court in Maryland around the same time. The travel ban was designed by the Trump administration to stop people from Libya, Iran, Syria, Somalia, Sudan, and Yemen from entering the United States for 90 days, as well as stop the influx of refugees for 120 days. The ban was struck down on the basis that it was unconstitutional. The responses to this made by President Trump bring up many questions about his relationship to the Judicial System in the United States. This post will examine this relationship as well as address how it could affect law and the political order.

President Trump responded to the block by stating that the travel ban is “unprecedented judicial overreach.” This statement must be examined. It is within the rights of the Judicial System to check the Executive Branch on the constitutionality of its decisions. He is incorrect in his statement that what occurred was “unprecedented” because it simply was not. Even if the circumstances regarding the ban were unique, it does not take away from the fact that the Judicial System was acting within its rights. The Hawaiian attorney general, Doug Chin, was quoted agreeing with the decision on the basis that what is going on “behind the curtain” is reason to strike down the ban. This means that Trump’s racist remarks in the past and general dislike for Muslims have had an effect in the decision.

President Trump’s reaction towards the ban makes me question his relationship with the legal system. It seems as if he has an “us and them” mentality. This is something that should not occur with a President. He should not be creating a divide among the various branches of the federal government but rather strengthening the bonds between them. It is also rather disturbing how he sees the decision of the Hawaiian court as “unprecedented” when it is not. It reflects his understanding of the Judicial System and his inability to understand the validity of the decision.

How will this effect law and the political order in the United States? A divide between the Executive and Judicial Branches can be dangerous. A President who does not understand the abilities of the court is also dangerous. However, this also brings in the question of the intentions of the judges blocking the ban. Are they simply making a political statement? That was one of the concerns of President Trump, that the judges were simply ruling in this way to make a point of stopping one of his actions. If this is the case, then the judge is not doing his job correctly. There are many questions brought up by this decision and by President Trump’s reaction. Time will tell the effects.

Posted in Constitutional Interpretation, Uncategorized | Tagged , , , | 2 Comments

Thoughts on Jury Nullification

Since our class discussion on jury nullification I have had numerous conversations with my peers on the topic. Before reading Paul Butler I knew very little about the practice and have since looked into it further. The majority of the people I have explained the process to tend to like the concept of it. They have said that it “gives a voice to the average citizen” and “gives someone the ability to make a difference.” Despite their opinion’s I tend to disagree with the process and think that it is very undemocratic.

My first problem with it is that I feel it blatantly disregards our government and how it works. We popularly elect congressmen and women as well as senators to create legislation for our country. We are democratic in the sense that everyone that is a citizen has the opportunity to vote for their representative. Because of this we trust these individuals to produce legislation that is fair and just as they represent us. For an average citizen to have the ability to disregard the legislation passed by these individuals is ludicrous to me. A juror’s job is to interpret the law and based on the facts provided by the case come to a verdict. When this process is ignored and a juror disregards the law because they don’t agree with it that isn’t democracy, it’s anarchy.

To me if their is a law that is unjust it should be congress’s job to fix it. The courts job is to interpret what their given, not rewrite it. I think the perfect example of this is the Lilly Ledbetter case. Ledbetter was an employer at a Goodyear in Gadsen, Alabama where she was discriminated against because she was female. She was given documents that showed she was getting paid less than her male co-workers so she sued and the case went all the way up to the supreme court. They ruled that employers cannot be sued under Title VII of the Civil Rights Act of 1964 over race or gender pay discrimination if the claims are based on decisions made by the employer 180 days ago or more.

Now before I go any further I wanna clarify that I think this is bullsh*it. Ledbetter in my opinion, should have been compensated the raises she was unfairly denied. But the supreme court did their job and interpreted the law how it was written. At this point it was up to the executive and legislative branches of government to solve this injustice. President Obama later signed a bill called the Lilly Ledbetter Fair Pay Act of 2009 that amended the Civil Rights Act of 1964.

To me this is the most democratic  way to fight injustice in America. I think the court should be used to bring attention to an injustice in society but I don’t believe the burden of changing it should be on the court since their job is simply to interpret each situation. Basically I believe that if congress simply did their job we wouldn’t have as much burden on the court.

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Healthcare and the Law: it’s pretty complicated

While healthcare is the titular issue of this post, and much of it will be spent discussing the newly unveiled American Health Care Act (a.k.a. Trumpcare)  it’s also going to delve into some ideological views about law and legislation. Over the past couple of weeks the Trump Administration has been in the process of publicly unveiling and trying to rally support for its long awaited plan to replace Obamacare. Similarly to President Obama before him President Trump set some pretty high expectations for this plan saying that everyone should be covered and that he would unveil “something terrific“. As of now we can’t really say if the AHCA  is going to be terrific, but we do know some of its major pros and cons.

The non-partisan Congressional Budget Office released its report on the AHCA earlier this week (the full text can be found here, and decent summary here). The basic gist of that report goes something like this: if implemented the new healthcare law would save $300 billion over the next ten years,a little less than 10% of the annual federal budget. However the CBO also estimated that about 14 million people (less than .5% of the population) would lose health insurance, with that number possibly rising to 24 million by 2026. While the CBO is not perfect, its far from being an overtly partisan organization, and its report on Obamacare from all the way back in 2008 turned out to be pretty acurate.

So Trumpcare might be terrific and it might be terrible, depending largely on your own political views and what you believe about access to healthcare. What worries me most about the AHCA though, and many of our conversations about law/legislation in general is just how lazy the public discourse surrounding it is. Especially on the issue of healthcare I feel that people simply lean on their ideology to provide a blanket solution to problems. For example a typical liberal might say that more government  and/or regulation is the solution, while a typical conservative might follow the line that government is the problem and less of it is the solution. While I openly admit that I fall on the liberal side of a lot of issues, and especially healthcare, it bothers me that our conversations about highly complex problems devolve into vague platitudes about the value of government.

Perhaps nothing illustrated this better than when White House Press Secretary Sean Spicer insinuated that the AHCA was somehow better than Obamacare only because the text of the bill was literally smaller. Despite my political stances I understand that large government can sometimes be overreaching, interfering with markets, crowding out the public, and decreasing overall welfare. However smaller government should not be an ends unto itself. If less government is better for the public I’m all for it, but you need to prove it on a case-by-case basis with an argument more substantive than government=bad. While its very hard to predict the impact of substantive legislation like the AHCA I wish that public discussion would lean more on its effects, not generalities about government and if there should be a right to healthcare.

Fixing our national dialogue isn’t easy. Things like health care are pretty obviously complex, and people only have a finite amount of time and interest to dedicate to public policy. One of the things that’s helped me most in having productive dialogues with people of all views is knowing when to step back, listen, and admit that you don’t know enough about a problem to form an educated opinion. This isn’t a perfect solution, people dislike looking uninformed, and even if we listen to the best experts they can be wrong. But I think that more often knowing (and acknowledging) what we don’t know would be a step in the right direction.

Side Note: I mainly focused on a conservative instance of gross oversimplification, so I’d love to see some examples of liberal oversimplification in the comments.

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