Saturday, October 06, 2018

Kavanaugh Lied In Seaworld Too

1. We all saw Kavanaugh lie under oath about the contents of his yearbook, which was relevant to the issue of his conduct in high school. The GOP voted for him anyway and that's a scandal but not surprising; women are second-class citizens to the Republican party and Kavanaugh will keep them that way.

But one thing I don't see emphasized enough is that the absurdity of the claim that Kavanaugh faithfully follows the original intent of the law as written.

This is a common claim of the modern corporatist conservative jurist: that they just apply the law as written and if it means workers die on the job, well that's just the way it goes sometimes.

The claim is false. Corporatist conservatives do not follow the plain text of the law when it interferes with their agenda. Kavanaugh gives us an especially clear example in "Seaworld v. Perez".

2. The FACTS of the case are simple: a young worker was torn apart and drowned by an orca at Seaworld, in front of a horrified crowd of spectators. Since this was the third time orcas killed trainers (not all at Seaworld, but it's a small industry) OSHA issued some rules:  People working with orcas had to have some protections.

Seaworld didn't like that. It sued, lost, appealed, and lost again 2-1, with Kavanaugh being the lone opponent of worker safety.

3. The TEXT of the law is clear:  OSHA has the right and the duty to tell employers to take precautions against known hazards to their employees.

Kavanaugh ignored the text. He wrote an elegant but perverse essay outlining his personal political philosophy about how if workers choose to labor under dangerous conditions that's ok, because many people get satisfaction from facing danger. In Kavanaugh's view, workers are supposed to be experts on the hazards of the job from the moment they're hired and if it turns out they didn't know about a hazard (e.g. "operant conditioning" of an orca doesn't actually work sometimes) well that's too bad; their survivors can always sue in state court (which is certainly a boon to the legal industry, and if a worker doesn't have a survivor with the money to take on Seaworld then the company gets a bonus: no lawsuit!)

4. Kavanaugh's little essay ignores the entire history of worker safety: OSHA and worker compensation systems were created under law because it's better to proactively stop workers from getting killed on the job than to rely on a flood of litigation after the fact. The law is quite clear on this, and Kavanaugh's sophomoric philosophical essay has no place in a courtroom.

Kavanaugh and his ilk wave away the plain text and original intent of the law because they are not originalists or textualists or anything like that. They just put on the disguise to justify their conclusions.

5. In support of his philosophy, Kavanaugh tells a lie in Seaworld: he supports his argument by inventing a fact that is simply not true, and that he knows is not true. Kavanaugh claims that OSHA has not previously regulated entertainment venues (... and from this concludes OSHA can't, which is of course a non sequitur).

How does we know that Kavanaugh knows it's a falsehood? The majority opinion includes a helpful footnote giving  a dozen examples of OSHA doing exactly what Kavanaugh says it never has. We know Kavanagh read that footnote because it's his job to read the entire opinion before signing it.  He had the duty to read that footnote and therefore knew or should have known that his factual claim was false. He then signed his name to the lie.

That's all you need to know about his judicial philosophy: he lies easily.

6. Reading cases can look hard. They're not short like twitter and they don't have pictures and they too often have long run-on sentences because jurists don't like Strunk and White.

But have you ever debugged software?

 Legal logic while esoteric usually pretty simple; you just have to track down the source of every claim, see if the opinion accurately characterizes it (often it doesn't) and then check whether the logical propositions follow (often they don't).

You then study the veneer of policy that covers up the logical flaws and ha-ha! you have understanding.

Whatever you do, don't take seriously the claim that anyone is a textualist, faithfully applying the law as written to the facts as presented and creating a dispassionate result. As Kavanaugh so well shows in his Seaworld dissent, that is simply not so.

Cat Night Haiku

Halfway to the dawn,
A crunchy sound waking me,
The cats are snacking

Friday, October 05, 2018

The Kiss

Outside my doctor's office

More fun than the elevator

After hosting a webcast for WPTL, I visited my dentist on the 15th floor of the Medical-Dental building. Of course I take the elevator up, but the way down is more fun by the stairs

Wednesday, October 03, 2018

What Sky Truth Found


While searching for "before" imagery in Google Earth, we spotted this happy fellow in North Carolina. Let us know in the comments if you can find it! https://www.facebook.com/SkyTruth/photos/a.181263551914679/2246869498687397/?type=3&theater

He Mocked ...

"He mocked Dr. Ford
to distract from the NYT tax fraud story
to distract from Kavanaugh
to distract from Stormy
to distract from Manafort
to distract from the jailed children
to distract from Putin.

He's the living embodiment of the Old Lady Who Swallowed a Fly."

---Randi Mayem Singer

Tuesday, October 02, 2018

Lamb's Ear

Calling all shepherds: does this really look like a lamb's ear? It's a nice bit of contrast in my parking strip, but the name? Bah!

Sunday, September 30, 2018

He saved this poor pelican with his BARE HANDS!

Just across the street

My neighbors have a tree we all enjoy!

Movie Challenge

The Facebook movies challenge is to post a daily image of a movie that affected your life (up to 10 movies) without commentary. I'll put them here as well but with my comments too.

Day 10
"Casablanca" needs no introduction

Day 9
"Wild America" is a fun road trip. To be sure, it was put forth as a vehicle for teenage heartthrobs but seriously, the story is fun!



Day 8
"Hidden Figures" made me look at the Space Race and also computer programming in a whole new way. I had an educated layman's knowledge of both and (apart from Ada Forsyth) had not really thought of the role of race and gender. It struck me that these smart ladies had their career advancement blocked so the space program benefitted from their expertise that in a more free society might have gone elsewhere. They paid the price to get us into space.


Day 7 
"The Producers (2005)" is just pure fun. Or maybe not so pure.
I liked the original very much but this is the rare remake that goes beyond.


Day 6
"Blade Runner" is both the best SF and one of the best film noir ever. Why? It's character-driven.
Not until the climax do we realize that we have been cheering for the bad guy all along.
Roy Batty is an escaped slave fighting for his life, and Decker is just a g0d-d@mned slave catcher.
"Tears In Rain" is also awesome poetry.
My law school friend Shiela Kaufold pointed out Hauer also starred in another fantasy involving a bird: "Lady Hawke". 

Day 5
"All About Eve" is witty and fun and a little bit nasty. What people tend to focus on in this film is the crazy witty dialogue ... which is great stuff ... and the main story ... which is a fine story ... but what makes this special to me is Margo Channing thinking it over and deciding that, what the heck, she's in her 40s, no longer the ingenue, and that is o.k. She is going to have a good time being middle aged, and not pretending to be anything else.
That's a lesson we can all use.

Day 4
"Monty Python and the Holy Grail" - I recall the first time I saw this in an East Lansing theater as clearly as yesterday. I changed the way I saw comedy forever.

Day 3
"Apollo 13" is a great movie in its own right, but I especially loved the charge of the engineers: to the rescue! Sometimes you just have to solve a puzzle, no excuses.

Day 2
"The Seven Samurai" - it was hard choosing between this and "The Hidden Fortress" and "Ran", but I went with the one I saw first.

Day 1

"Singing In The Rain" is worth re-watching annually. It just makes you happy. "Make Them Laugh" might be my motto.