Coyote Blog

From the Daily Dot:

A lawyer for Facebook argued in court Wednesday that the social media site’s users “have no expectation of privacy.”

According to Law360, Facebook attorney Orin Snyder made the comment while defending the company against a class-action lawsuit over the Cambridge Analytica scandal.

“There is no invasion of privacy at all, because there is no privacy,” Snyder said.

In an attempt to have the lawsuit thrown out, Snyder further claimed that Facebook was nothing more than a “digital town square” where users voluntarily give up their private information.

“You have to closely guard something to have a reasonable expectation of privacy,” Snyder added.

Zuckerberg really is one of the most dangerous people on the planet.  He has taken well-founded criticism against his company, its failings, and its past misrepresentations and somehow morphed that into a campaign to gain totalitarian government regulation of online speech.  Incredible.

If you want to see your socialist future, look no further than this mess in Maryland, hat tip to Overlawyered.  Absolutely nothing in this looks like free market capitalism, from the dueling subsidies to the threat by Baltimore to actually seize a business for the crime of trying to move out of their dysfunctional city.

Baltimore Mayor Catherine Pugh sued the owners of Pimlico Race Course in hopes of blocking them from moving the Preakness Stakes or using state bonds to fund improvements at Laurel Park.

In a lawsuit filed Tuesday in Baltimore Circuit Court, Pugh, on behalf of the city, also asks the court to grant ownership of the racetrack and the race to the city through condemnation....

Citing The Baltimore Sun’s reporting, the lawsuit asserts that since 2011, Stronach has “systematically underinvested in Pimlico and invested instead in the Laurel Racetrack.”

Stronach has spent the majority of the state aid it receives for track improvements on Laurel Park for the past several years.

“Through the systemic divestment of Pimlico, Defendants could indeed manufacture an ‘emergency or disaster’ to justify transfer of the Preakness to Laurel, as undermaintained infrastructure begins to fail and crowds attending Pimlico races and the horses racing there are endangered,” the lawsuit states.

Moving the race or shuttering the track would harm the Park Heights and Pimlico neighborhoods around the track, which are significantly poorer than Laurel and Bowie, the lawsuit states.....

Stronach Group officials previously pledged to keep the Preakness at Pimlico through 2020. The 2019 race is planned for May 18.

But they also have made clear that they plan to invest in Laurel Park in Anne Arundel County, in hopes of building a “super track” that could attract a high-profile race such as the Breeders’ Cup.

To accomplish that, Stronach is backing legislation in the General Assembly that would allow the Maryland Economic Development Corp. to issue $80 million worth of bonds to pay for improvements at Laurel and an additional $40 million in bonds for its Bowie Training Center. The bonds would be paid back with money from the state’s Racing Facilities Renewal Fund, which is funded by a portion of slot machine proceeds....

If the court awards ownership of the track and the Preakness to the city, “These properties will be used to continue their historic role in the cultural traditions of Baltimore City, to foster employment and economic development in Baltimore, and in particular in the Park Heights Urban Renewal jurisdiction, as well as to protect the health and safety of the people attending the Preakness and other Pimlico events, as well as the employees and horses working there,” the city wrote in the lawsuit.

All of this is set against the backdrop of horse racing being a dying business.  This almost reminds me of the end days in Atlas Shrugged when rival local governments are fighting over a last, soon-to-close factory.

By the way, the article mentions the poorer Park Heights and Pimlico neighborhoods.  Now, I am not familiar with these parts of Baltimore, but let me venture it is insane to base your local economic development on a business (the Pimlico race course) that has racing just 12 days of the year over a single 3 week period in May (the rest of the time I believe it's just an oversized OTB parlor).  Just about any other business in that space would likely be healthier for Baltimore.

This is a classic case of politicians destroying economic progress by forcing sub-optimal resource investment.  I have observed that politicians love subsidizing the hell out of these high-profile single day businesses.  The Fiesta Bowl in the Phoenix area is another good example.   Look at how much politicians bend over backwards to get a Superbowl, which is at best one day out of every 5 or 6 years.   I am still trying to formulate a theory as to why, but a few elements likely include:

• Local political leaders get treated as a king-for-a-day at these events.  They get interviewed by national media, they hobnob with stars, they get special seats and boxes at the event
• Politicians want bullet points and sound bytes for their elections and these events are more widely visible to and understood by voters than the nuts and bolts of real economic prosperity.  A seen and unseen type thing.  From a politician's point of view, even massive unseen prosperity is useless to them.
• These events act as short-live but meaningful subsidies to a variety of powerful local interests such as hotel owners

From the Chronicle of Higher Education:

Upset and ashamed, my fellow graduate students and I speak with one another cautiously. We heal, or don’t, alone. People I know are afraid to make any public comment, even on Facebook, where they are friends with older, richer scholars who might one day control their fates. Even I, who have by extraordinary luck options outside of academia, fear what being vocal will bring.

A culture of critics in name only, where genuine criticism is undertaken at the risk of ostracism, marginalization, retribution — this is where abuses like Avital’s grow like moss, or mold. Graduate students know this intuitively; it is written on their bones. They’ve watched as their professors play favorites, as their colleagues get punished for citing an adviser’s rival, as funding, jobs, and prestige are doled out to the most obedient and obsequious. The American university knows only the language of extortion. “Tell,” it purrs, curling its fingers around your IV drip, “and we’ll eat you alive.”

Avital conducts herself as if someone somewhere is always persecuting her. She learned this, I imagine, in graduate school. No woman escapes the relentless misogyny of the academy. The humanities are sadistic for most people, especially when you aren’t a white man. This is understood to be normal. When students in my department asked for more advising, we were told we were being needy. “Graduate school should destroy you,” one professor laughed.

The irony is that those who survive this destruction often do so at the cost of inflicting the same trauma on their own students. Avital, now a grande dame of literary studies, who Reitman alleges bragged to him of a “mafia”-like ability to make or break the careers of others, still feels persecuted. She makes it the job of those around her to protect her from that persecution: to fawn, appease, coddle. The lawsuit against her reads as a portrait, not of a macho predator type, but of a desperately lonely person with the power to coerce others, on pain of professional and psychic obliteration, into being her friends, or worse.

Frequent readers will know that I have expressed both admiration and skepticism for Elon Musk's various business ventures.   SpaceX is cool.  I am extremely skeptical of the hyperloop, which looks like the technological equivalent of the emperor's new clothes.  I thought Tesla's acquisition of nearly-bankrupt SolarCity was corrupt insider self-dealing.  I think the initial Tesla cars were terrific products but that Musk's management is likely to kill the company.

Lately, I have tried to avoid discussing Tesla and Musk much because I don't want to turn this into a dedicated blog on those two subjects.  Also, with all the press (positive and negative) that it gets, another article on Tesla is about as necessary as another article on Stormy Daniels.  I even resisted the urge to comment on Musk's childish need to insert himself into the Thai cave rescue story and his subsequent rant on Twitter petulantly calling one member of the rescue team a pedophile because he did not use Musk's submarine.  Lol, a submarine for a rescue where one passage was so narrow a diver wearing tanks could not even squeeze through.

My will to avoid Musk and Tesla on this blog collapsed the other day when Musk personally called the employer of one of Tesla's harshest (and I would add most intelligent) critics pseudonymed Montana Skeptic, and threatened to sue the critic and get him fired unless he shut down his criticism.  He succeeded, as Montana Skeptic was forced to shut down and issue this statement:

Yesterday, July 23, I decided to cease writing about Tesla (TSLA) here at Seeking Alpha web site. I also deactivated my Twitter account, where I was @MontanaSkeptic1. Here is what prompted those decisions.

Yesterday afternoon, the principal of the family office in which I am employed received a communication from someone purporting to be Elon Musk. Doubtful that Elon Musk could actually be attempting to contact him, my employer asked one of my colleagues to investigate and respond.

My colleague then spoke by phone with Elon Musk (it was indeed him). Mr. Musk complained to my colleague about my writing at Seeking Alpha and on Twitter. Mr. Musk said if I continued to write, he would engage counsel and sue me.

My colleague then spoke with me about the phone call. We both agreed that Mr. Musk’s phone call and threatened lawsuit were actions that would tend to involve our employer in matters in which he has had no part. To avoid such a consequence, I offered to immediately cease writing at Seeking Alpha and to deactivate my Twitter account.

How did Mr. Musk learn my identity, and that of my employer? It appears to me his information came thanks to the doxing efforts of some of his followers on Twitter.

Neither Mr. Musk nor Tesla has ever attempted, at any time, to contact me. Instead, Mr. Musk determined to go directly to my employer.

I do not know what Mr. Musk’s precise complaints are about me. I do not believe he has any valid legal claim, and I would have no trepidation in defending myself vigorously were he to bring such a claim. My response to his threats were simply to protect my employer and preserve my employment.

And so, you might say, Elon Musk has won this round. He has silenced a critic. But he has many, many critics, and he cannot silence them all, and the truth will out.

Folks who have read the book "Bad Blood" about Theranos will recognize this behavior immediately.  Musk took advantage of the work of some of his fanboys who bravely doxxed Montana Skeptic and allowed Musk to determine his true identity.   Musk is certainly a child (emphasis on "child") of his age, preferring to force critics to shut up rather than respond to them in a reasoned manner.  And by the way, where the hell is his board of directors?  Just like at Uber, it is time for the grown-ups to come in and take over the visionary but flawed company started by their founder.

If you have a chance, you really should look at at least some of Montana Skeptic's work.  He was fact-based and analytical -- this is not some wild crazy social media guy going off on biased rants.  I would take Musk's action as a ringing endorsement of Montana Skeptic's analysis, most of which you can find here but require a Seeking Alpha membership.  However, if you have time to listen, the Quoth the Raven podcast has two good episodes with Montana Skeptic on Telsa (#23 and #28).

By the way, Elon.  If you wish, you may contact my employer here.

Long time readers will know that several years ago I became convinced that Princeton was discriminating against Asian-Americans in their admissions process, a process I had participated in for over a decade.  Princeton, as far as I am concerned, can bake its academic cake for whoever they want, but I in turn don't have to participate in it so I quit.  I found the disconnect between Princeton's pious words on diversity and the reality of their actions to be distasteful, and I really really did not like having to toe the party line when Asian interviewees asked me if I thought they had an equal chance of admission with other students.

More data on this issue is just becoming public as various briefs that have been filed in a lawsuit representing Asian-American students against Harvard are being released.   I thought this bit from the Wall Street Journal looks pretty ugly.

Asian-American applicants have higher academic and extracurricular scores than any other racial group, as well as the highest overall rating from alumni interviewers, according to the plaintiffs. However, Harvard’s admissions officers assign Asian-Americans the lowest score of any racial group on the personal rating, which includes a subjective assessment of character traits such as whether the student has a “positive personality,” the plaintiffs said.

Do you think they mark them down as "inscrutable?"  Remember, this is from an institution that criticizes pretty much everyone else on the planet for propagating racial stereotypes.

I am not particularly in opposition to or enthusiastic about the current transgender movement.  On one hand, I have no problem with people managing their lives however they wish.  I met Dr. Renee Richards in 1982, for example (she was coaching a Princeton tennis player I knew) and liked her.  Deirdre Mccloskey is freaking brilliant, I wish I had met her.   On the other hand, as with most social movements on the Left nowadays, mere tolerance and live-and-let-live acceptance is not enough -- the movement demands complete conformity, and mercilessly shames anyone even the least bit slow to discard 5000 years of social norms around gender.  And the movement tends to descend into self-parody from time to time, such as demanding that tampons be provided to people who cannot possibly have a menstrual cycle.

Anyway, most of that is beside the point and is just background to an issue I was reminded of this weekend when I was visiting San Diego.  As many of you know, my company operates public parks and campgrounds for the government.  As such, we were largely subject to Obama-era orders that in Federally-owned bathrooms, people had to be allowed to use the bathroom that matched whichever gender they self-identified as (not necessarily the one matching their birth sex).  Unlike in past rules, there was no requirement that the person had taken any surgical or hormonal steps to transition -- only a self-declaration was required.

I will have to admit that the most entertaining part of this new requirement was explaining modern gender theory to my employees and managers, who tend on average to be over 65-years-old and without a college degree.  There were a lot of wide eyes and "wtf' expressions in the room.  Their main concern seemed to be potentially allowing male sexual predators into the women's room.  I explain to my employees that the extra risk here is trivial for a variety of reasons, but mainly because in practice this comes up vanishingly few times.  There just are not that many transgender people in the world, and campground bathrooms have never been targets for a lot of sexual predation.  Every single time I can remember our employees even being asked about our policy it turned out to be an activist testing us, probably to see if they could create grounds for a lawsuit.

From my experience, then, most public fears about transgender bathroom rules have turned out to be overblown. But, it turns out there is one issue that no one is talking about that could be a real, though not particularly serious, downside for women.  Let me explain.

The one major change in the public bathroom world as a result of the transgender movement is the accelerating shift from having multi-stall female and male bathrooms to having single-stall, gender-neutral bathrooms.  If bathrooms are all single-stall, then all the culture wars over gender and bathrooms are completely sidestepped.   Every public bathroom I have seen a government agency build over the last 5 years has been of this new design, and our company's policy is only to build this sort of facility rather than the old two-sided male/female bathrooms.  Here is an example from new construction at the children's pool in La Jolla:

OK, I am going to have to criticize one gender here but since I am going to criticize males, I will be OK.  Men's bathroom habits are terrible -- we tend to pee all over the place.  Even if the median guy is careful, the marginal guy is not and makes a total mess.  We had this problem when my kids were young -- my wife would ask me to take our toddler daughter to the men's room with me and I would tell her that was impossible, that the men's toilets were likely awful.   I can say from experience from cleaning over 1000 public bathrooms a day that men's rooms take way more cleaning than women's rooms.

So if one has these single stall bathrooms, they have to be cleaned a lot.  On busy days, our staff cleans ours 4,5,6 or even more times a day.  But there are many public agencies that apparently do not have the focus or resources to clean on this kind of frequency.  The City of San Diego, or whoever cleans these bathrooms in La Jolla, clearly does not clean enough, because these bathrooms were disgusting.  I did not really want to go in there and I could stand and do my business.  My wife would never have gone in there.

So there you have it women -- something else to look forward to.   That irritating long women's room line may become a thing of the past, but it could be replaced with much dirtier bathrooms.

Back in November of 2015 I wrote:

I would be stunned if the Volkswagen emissions cheating is limited to Volkswagen.  Volkswagen is not unique -- Cat and I think Cummins were busted a while back for the same thing.  US automakers don't have a lot of exposure to diesels (except for pickup trucks) but my guess is that something similar was ubiquitous.

My thinking was that the Cat, Cummins, and VW cheating incidents all demonstrated that automakers had hit a wall on diesel emissions compliance -- the regulations had gone beyond what automakers could comply with and still provide consumers with an acceptable level of performance.

Since then Fiat-Chrysler has been accused of the same behavior, and now GM is accused as well, though only in  a civil suit.

A class-action lawsuit accuses General Motors of rigging emission-control systems on 2011–2016 Chevrolet Silverado HD and GMC Sierra HD pickups with GM’s Duramax turbo-diesel 6.6-liter V-8 engine. If the allegations are proved true, the environmental damage from these 705,000 trucks, which the lawsuit said emit two to five times the legal limit of nitrogen oxides (NOx) in typical driving conditions, could easily exceed that of Volkswagen’s emission-test-cheating TDI engines.

Of course, people can say any thing they want in a civil suit, so this needs to be proved, but I think it probably is true.

A while back a reader with some inside knowledge explained what was going on.

If you don't believe me, check out the NLRB's essentially no-show status in this case.  Had the employer engaged in even 1% of the practices the union had, the NLRB would have intervened in a second

In 2005, the SEIU decided to try to break into Houston by pushing “justice for janitors.” It began persuading the biggest janitorial companies in town to accept Local 5 as the representative for their workers. Five firms agreed. The sixth was Professional Janitorial Services.

The union wanted to organize workers through “card check,” which allows it to pressure workers one by one to sign an “authorization for representation.” But PJS insisted on a vote by secret ballot, as is its right.

The union responded with a campaign whose goals, according to internal emails entered into evidence, were to “cost PJS money” and “cost PJS accounts.” It accused the company of withholding workers’ pay, forcing them to work off the clock, and firing those involved with the union—none of which was substantiated.

The union filed “unfair practices” complaints against the company to the National Labor Relations Board, then withdrew some of them before they could be disproved. It filed a lawsuit against PJS that was dismissed. Mr. Zavitsanos argued to the jury that the union was trying to use these processes to libel-proof itself, since it cited the legal actions to substantiate its attacks on PJS.

The union sent letters to the building-management companies that contracted with PJS, spreading accusations. It circulated vicious fliers at disruptive demonstrations. One building manager said in a deposition that she fired PJS after protesters stormed her conference rooms while tenants were using them. PJS lost a dozen contracts. Usually somebody from Local 5 would email a colleague to take credit, which made damages easy to prove once the emails were discovered. In 2007, PJS announced in a press release that it would sue the union for “harassing and intimidating our customers along with companies and individuals that may be contemplating doing business with us.”

Mr. Zavitsanos argued to the jury that the Local 5 was operating out of an official SEIU playbook. This document, called the “Contract Campaign Manual,” surfaced five years ago in a different case, a racketeering lawsuit brought against the union by the food-services company Sodexo, which ultimately was settled. The manual advised union workers to “disobey laws which are used to enforce injustice against working people” and to threaten managers with accusations of racism or sexism.

Note that the Left came within an ace several years ago of eliminating secret ballots in union authorization votes.  The Left argued that card check was functionally equivalent to a secret ballot, but if this is true, why is the union going through so much trouble to avoid a confidential vote?

Perhaps this has been going on for a while but it is the first I have had it happen to me.  Over the last two days I have had robocalls from two numbers - 626-265-4560 and 413-356-4173.  The robot says in a menacing way that this is the final call I am going to get and that the IRS is about to file a lawsuit against me.  I knew better than to believe this and did not call back, but several websites report that if you call these numbers, you get an operator who demands personal information without giving out any explanation.  Beware.  This is obvious phishing and should be avoided.

Update:  Add 213-447-4831 and 802-673-0582 to the list.

NY state attorney general (and others) pursuing potential criminal and civil charges against ExxonMobil for its climate change advocacy

US Virgin Islands AG (really) going after non-profit CEI for its climate change advocacy

Elizabeth Warren wants the SEC to ban companies from "saying whatever they want about Washington policy debates," a demand inspired by her frustration that financial firms are publicly disagreeing with her on the impact of her desired regulations

California AG Kamala Harris demanding non-profit donor lists, presumably so she can harass and intimidate the ones she does not like

California AG Kamala Harris has raided the home and seized video footage of an independent advocated/journalist  who did secret sting videos of Planned Parenthood, the exact same sort of advocacy journalism pursued legally (without legal harassment) by any number of Leftish groups in California and elsewhere  (I doubt Ms Harris plans to raid the home of PETA activists who trespass on farms to secretly film chicken and pig breeding).

It turns out there are strong speech protections in this country, except when you are a professional, and then there are none.

And of course, I still am fighting against a libel lawsuit meant to force me to remove this product review.

Update, add this one:  Tenured Marquette professor faces termination based on blog post with which University disagrees

When the student replied that he has a right to argue his opinion, Ms. Abbate responded that “you can have whatever opinions you want but I can tell you right now, in this class homophobic comments, racist comments and sexist comments will not be tolerated. If you don’t like that you are more than free to drop this class.” The student reported the exchange to Marquette professor John McAdams, who teaches political science. Mr. McAdams also writes a blog called the Marquette Warrior, which often criticizes the Milwaukee school for failing to act in accordance with its Catholic mission.

Mr. McAdams wrote on his blog that Ms. Abbate was “using a tactic typical among liberals now. Opinions with which they disagree are not merely wrong, and are not to be argued against on their merits, but are deemed ‘offensive’ and need to be shut up.” His blog went viral, and Ms. Abbate received vicious emails. She has since left Marquette.

But now Marquette is going after Mr. McAdams. In December 2014, the school sent him a letter suspending his teaching duties and banning him from campus while it reviewed his “conduct” related to the blog post. “You are to remain off campus during this time, and should you need to come to campus, you are to contact me in writing beforehand to explain the purpose of your visit, to obtain my consent and to make appropriate arrangements for that visit,” Dean Richard Holz wrote.

Lol, the university is going to prove he was wrong to write that universities avoid dialog in favor of saying "shut up" by telling him to  ...  shut up or be fired.

By the way, since nowadays it seems that supporting someone's free speech rights is treated the same as agreeing with that person, I will remind folks that having led a pro gay marriage ballot initiative briefly in Arizona, I am unlikely to agree with someone who thinks it should be banned.  But so what?  I would have absolutely no problem arguing with such a person in a rational way, something that faculty member Ms. Abbate seemed incapable of doing.  While I might disagree with him on any number of issues, Professor McAdams was totally right to call her out.  Besides, is the Left's goal really to take all opinion with which they disagree and drive it underground?  Force folks underground and you never know what will emerge some day.  Things like.... Trump supporters.

It is amazing to me that universities have become the least viable place in the US to raise and discuss controversial issues in the light of day.

If your business is like mine, a lot of folks to whom I owe money are insisting on the ability to automatically remove the money I owe them each month from our checking account (via an electronic process known as ACH, which is slower but much cheaper and easier to use than the old wire transfer method).  At first, any loan I took out insisted that the lender be able to automatically withdraw my payments.  Then my workers compensation company.  Then certain vendor accounts.  And of course my merchant processing companies are constantly shoving money in and out of my bank accounts.

In retrospect, I was far too sanguine about this situation.  What finally caused me to abandon my sense of security was a libel lawsuit filed by one of my vendors over a bad review I wrote of their product [I won't mention the name here but I am sure anyone can figure it out with a simple search].  Anyway, I realized that this company, who was suing me for untold bazillions of dollars, actually had the right to freely jack whatever they wanted out of my checking account.  What is worse, this same company is being sued by many companies for trying to take an arbitrarily high final payment out of their accounts at contract termination.  Eeek!  And this does not even include the possibility of outright fraud.  I have ACH tools where if I have your bank's name and your account number, I could pull out money from your account without your ever knowing about it until you see it missing.  I presume criminals could do the same thing.

Something had to be done, and it turned out that my bank, Bank of America, has something called ACH positive pay wherein nothing gets ACH'ed out of my accounts without my first approving the payments.   I check a screen each morning and in 60 seconds can do the approvals for the day.  They also have a very easy to use rules system where one can set up rules such that payments to certain vendors or for certain amounts don't need further daily approvals.

I presume most major banks have a similar product.  It cost me some money but I feel way safer and encourage you to look into it if you are in the same situation.

The vast majority of so-called consumer or employee protection laws in California appear to be written with one purpose in mind -- to create more rent-seeking opportunity for lawyers.  While more expensive to comply with than laws in any other state, most of these laws do little to actually make the life of consumers or employers easier.  Are consumers really better off for the myriad of carcinogen warnings one sees in California, or is it just white noise?  Are employees better off because they can sue over having to work through lunch?  In most cases, the answer is "no" or only trivially at best.

But what all these laws have in common is that they give attorneys incredible power to extract money from businesses via any number of extortion techniques.  For example, my company has never lost an employee lawsuit in California, but I have spent hundreds of thousands of dollars of my money to successfully defend such claims (no insurer will cover you for such employee suits without a deductible of at least $25-50 thousand per claim in CA).  How can anyone call this justice?

The only defense we have is to try to take claims to arbitration.  I have no problem paying a thousand dollars of back wages if we made a mistake, but I don't want to pay $50,000 in legal fees reaching that conclusion.  That is the point of arbitration, to pay off employee claims without the long hassle of litigation.  It offers the bonus of paying employees quickly, rather than forcing them to wait through years of legal procedures.

The only folks hurt by arbitration are the attorneys, and of course since they virtually control the California State Legislature, CA attorneys are urging their government lapdogs to ban arbitration of employment issues

When you take a job, should you be required to waive your right to have a future employment dispute adjudicated by the state labor commissioner or in civil court?

That has increasingly become the case for job applicants. Forty-three percent of companies nationwide now require employees to sign arbitration clauses precluding class-action suits, according to the Wall Street Journal. That’s an increase from 16 percent of companies in 2012. It’s paid off for businesses – employee class-action lawsuits have declined 5 percentage points since 2011, saving employers $136 million.

Assemblyman Roger Hernández, D-West Covina, believes mandatory employee arbitration agreements provide California businesses with an unfair advantage in employee disputes. He authored Assembly Bill 465, which would make it illegal to require such agreements as a condition of employment.

The bill passed the Senate Labor and Industrial Relations Committee along party lines on June 10 after a debate over the pros and cons of arbitration.

It is telling that even the supporters cannot point to any study or evidence that employees do worse with their claims in arbitration vs. in the court system.   The only real claim they make is this one, which is hilarious:

“The harm from these kinds of agreements goes beyond the impact on the individual worker. Obviously, no workers should be required to give up such core protections when it’s not knowing or voluntary. But beyond that, this takes away the ability to the state labor commissioner to even know what is happening in these work sites. These arbitration agreements are private, they are individual.

“They do not provide a forum for the state labor commissioner or anyone else to know what is happening and try to find a more systemic solution or to say, ‘Wow, there’s a lot of violation coming out of this one site or employer. Maybe we should consider a more efficient enforcement plan than just each individual worker having to take their claim separately to an arbitrator.’

This is stupid.  First, there is nothing in an arbitration agreement that prevents an employee from reporting his or her issue to the state labor commissioner.  Second, if this really were an issue, a simple reporting requirement of the basic facts of arbitration cases to the state labor commissioner would suffice to solve the problem.

Here is how you should think about this proposed law:  Attorneys are the taxi cartels, and arbitration is Uber.  And the incumbents want their competitor banned.

A few years ago I had a woman file a discrimination case against me, saying her supervisor discriminated against her.  This person did not even attempt to lay out a factual basis for the claim, just said essentially she was dissed.  What made the case a total joke is that the person who was her supervisor was her sister (no more making exceptions to nepotism rules after that one).  The claim went nowhere, but it still cost be $20,000 to make go away.  And the real kicker was the employee's attorney.  This person came to me (actually my attorney) and he said he would drop the case with no payment to the plaintiff if we agreed to give him $X thousand dollars personally.  Basically, the attorney said that if he got paid, but his client did not, he would be satisfied and get her to drop the suit.  This is the racket attorneys have created for themselves in California.

Folks often use the abuses in the prostitution industry as evidence of why it should be illegal.  But these abuses are actually a result of the illegality.  Sex workers in illicit industries cannot use the police and legal system to address abuses without risking arrest.  Essentially, they are cut off from access to the legal system and its protections that we take for granted.

People act like the abuses are inherent to the fact that prostitution is a sex work industry, but here is an example of (legal) sex workers protecting themselves and addressing abuses through the legal system, just like all the rest of us do.  If prostitution were legal, then prostitutes could do the same.

Three Valley strip clubs are being sued by exotic dancers with the help of a Texas law firm over alleged unpaid tips and wages....

Hodges' firm and the strippers are suing to make the strippers official employees. Their new system would be similar to that of restaurant wait staff, who typically earn a sub-minimum salary (Arizona allows as low as $3 an hour for tipped employees) while pooling tips among their fellow workers. If no customers come in, the staff is still guaranteed to make at least minimum wage, plus time-and-a-half for any overtime worked.

I'm not a big fan of the premise of the lawsuit (trying to force businesses to change their employment model from dancers as independent contractors to dancers as employees) but it is their free access to the legal system that is the point here.  One could never imagine such a lawsuit with a group of prostitutes arguing that the people they worked for were not paying them fairly.

First, we got FCC title II regulation of the Internet because a lot of people hate Comcast and saw net neutering as the perfect way to stick it to Comcast.  Now, we get a terrible copyright precedent because people don't like Pharrell Williams and Robin Thicke.

The Internet appeared to rejoice that Pharrell Williams and Robin Thicke lost their lawsuit to the estate of Marvin Gaye over alleged copyright infringements in their mega hit song "Blurred Lines." It's not that the notoriously copyright-unfriendly Internet culture found religion on intellectual property privileges but that the Internet doesn't seem to like Robin Thicke. Fair enough. But as a number of commentators have noted, it's a silly reason to support such an awful ruling. And that ruling is awful even if you believe in relatively expansive intellectual property rights because it wasn't based on any copyright Marvin Gaye's estate owns on paper....

As the author notes, are we going to soon have competing claims (and lawsuits) claiming origination of the four chord progression?

Today Apple Computer won the class-action anti-trust case filed against them.  The plaintiffs were seeking a billion dollars in damages (after tripling) for a DRM system (Fairplay) that does not exist any more used on a device (the iPod) that Apple has pretty much phased out.  These products were such a threat to the survival of competitors that they don't even exist any more.  This is not atypical of how anti-trust often plays out in the marketplace, particularly in the technology sphere.  Any day now I will be filing my lawsuit against Commodore for suppressing competition in the home computer market.

As I wrote last week, one encountered a terrible problem when switching from iPhone to Android -- your phone number remained registered with the Apple iMessage servers as an iPhone and so that Apple tries to deliver texts from other iPhones to your new Android phone via their iMessage servers.  That does not work, and so the text just disappears into the ether, with the sender thinking it went through fine but the new Android user never seeing it.

After months and months of problems, and at least one class action lawsuit, Apple now offers a fix.  You can now de-register your phone number in the iMessage system by going to this link.  I don't know if it works and I don't know if there is any time delay.  I suddenly started receiving my texts from iPhones this weekend, about a week after I made the switch and called Apple to de-list me in their servers.

By the way, I tried to use the de-listing link.  The process involves a text back.  I never got a text back, lol.  So I am not positive the de-listing link is actually working, but since I was successful (apparently) with it last week doing it using the old method, I am not worried. I was successful using the method at the bottom of this page.

Well, I just switched from my old iPhone 4 to a Droid Turbo**, a Motorola phone that runs Android rather than iOS.

Here is what they never tell you -- Apple has devised a very clever way to make leaving the iOS world really, really painful.  Specifically, when you send a text message on an iPhone, unless you fiddled with the default settings, it gets sent through iMessage and the Apple servers.  If it is going to another iPhone, it can actually bypass the carrier text messaging system altogether, a nice perk back when texts were not unlimited but useful today mainly for international travel.

But here is the rub -- when you switch you phone line away from an iPhone to an Android device, the Apple servers refuse to recognize this.  They will think you still have an iPhone and will still try to send you messages via the iMessage servers.  What this means in practice is that you can send messages from the new phone to other iPhones, but their texts back to you will not reach you.  They just sort of disappear into the ether, and will try forever to be delivered to your now non-existent iPhone.

This is as good a guide as I can find for the problem, and better than what any Apple employee will tell you.  There are two solutions for this.  Apparently, you can go to every one of your friends and tell them to delete every text they ever sent you and delete you from their phone books and apparently new texts they send you will then skip the iMessage system and get to your phone.  The only problem is that I can't replicate this.  I spent hours with my family's iPhones today removing every text message from my number and every reference to me in their phone books.  But no dice.  Their texts still do not reach me.  Sigh.

The second solution is to call Apple and ask to have your number removed from the iMessage servers.  This was not possible even a few months ago, but there is a large class action lawsuit against Apple on this topic so they seem to at least have trained their customer service staff on this issue, finally.  I called and they readily removed me from the server, but with this caveat -- it wouldn't take effect for 30 days.  I told the rep that this was patently absurd, and she agreed.  But 30 days it will be.  So no matter what I do, every single person in my contact list who has ever texted me from an iPhone is going to think they are texting me but in fact have their texts fly off into the ether.  For 30 days.

This is clearly absurd, and folks thinking of switching to Apple should understand just how hard it is to reverse that decision.

PS-  I have always been amazed at all the goodwill Apple gets for being somehow friendlier and more open to creative individuals than Microsoft.  To me, Apple's philosophy is to host a closed totalitarian world, while Microsoft and Google (admittedly full of foibles and their own issues) have far more open platforms.  Linux guys will laugh at that, but compared to Apple, Microsoft is free love in the park.

** reasons why:  I live in the Google world of Google Drive and Apps, so the OS choice is a natural.  I have never figured out iCloud.  I don't care about design elegance, which is good because this phone is as elegant as a brick.  It has a stupid large battery (it may be a tad heavy but it is way lighter than with all you guys that have mophie battery cases on your iphones).  It has fast-charging as well as wireless charging, a good screen, a decent camera, and a fast processor.  It also has a light touch on OS add-ons so it is close to stock android without all the overhead of custom skins and it will be among the first phones to get Android updates (solving the #1 problem of Android over iOS, which is the proliferation of versions across handsets and carriers that slows upgrades).  The only thing it is missing is a memory expansion card port, though you can get it in 64GB which always has been plenty for me.  The only question left is why carriers have to design their phones, these $600 devices that can't be dropped, with super-slick back covers.  The new HTC One M8 is like holding a bar of wet soap.  They all do this, except the Moto X which has a bamboo back that is awesome to hold.

New York City has instituted a draconian "ban the box" law that makes it extremely difficult for employers to avoid hiring people with criminal records  (via Overlawyered)

The bill, which is likely to become law in some form, would prohibit the commonly used "check boxes" on job applications that ask about past convictions. It also would forbid employers from asking questions about an applicant's criminal history until a conditional job offer has been tendered....

The bigger concern is lawsuits from job seekers. To be able to reject an applicant because of a past conviction, employers would have to go through a rigorous process that, if not followed, would result in the presumption that a business owner engaged in unlawful discrimination, Mr. Goldstein said.

“I think you’d see some increases in litigation, and this is not exactly a well-settled area of law,” he said.

Proponents say the bill would simply offer a clearer way for businesses to follow state law requiring employers to go through a multistep test to determine if an applicant's past criminal behavior correlates with the position being sought.

Additionally, the City Council bill would allow an applicant rejected because of a past crime seven days to respond. The job would have to be held open during that time.

An employer's failure to adhere to the process could lead to a fine of at least $1,000. In the bill's current form, the business would bear the burden of proof in any resulting lawsuit by the job applicant, Mr. Goldstein said.

“Rather than the normal context, we have the burden here shifting,” he said. “It would be on the employer to present clear and convincing evidence that it had not engaged in unlawful discrimination.”

Given that the burden of proof seems to be on businesses in employee lawsuits even when the playing field is supposed to be level, I shudder to think what a statutory burden of proof would mean.  Likely an automatic win for any employee.

Given this, here is a question for you:  Imagine that I hired a convicted felon who then committed a crime against one of my customers.    Would I be shielded from liability because I had limited ability to screen out candidates who posed dangers to customers?  HA!  No way.  The plaintiff's attorney for the customer would be in front of the jury making me look like Attila the Hun for not screening felons from my applicant pool, even as the government made that task effectively impossible.

That is the key to this law -- that proponents can claim that one can screen out felons "if appropriate to the job" but in fact the law makes it effectively impossible to do so without imposing staggering litigation costs on me.  So we get the Leftist ideal - I can be sued by employees for screening out felons and I can simultaneously be sued by customers for not screening out felons.

Congress has ceded far, far too much legislative power to Administration agencies like the EPA.  The only check that exists for that power is process -- regulators have to go through fairly elaborate and lengthy steps, including several full stops to publish draft rules and collect public comment.  A lot of garbage gets through this process, but at least the worst can be halted by a public or Congressional outcry to draft rules.

But like most government officials, regulators resent having any kind of check on their power.  Just like police look for ways to conduct searches without warrants, and even the President looks for ways to rule without Congress, the EPA wants to regulate unfettered by public comment process.

The EPA has found a clever and totally scary way around this.  In short, they collude with a friendly environmental group which sues the EPA seeking certain rules that the EPA believes to be too controversial to survive the regulatory process.  The EPA settles with the friendly group, and a consent decree is issued imposing the new rules, entirely bypassing any rules-making or public comment process.  The EPA then pretends that they were "forced" into these new rules, and as a kicker, the taxpayer funds the whole thing by making large payoffs to the environmental group who initiated the suit part of the settlement.  Larry Bell describes the process:

“Sue and settle “ practices, sometimes referred to as “friendly lawsuits”, are cozy deals through which far-left radical environmental groups file lawsuits against federal agencies wherein  court-ordered “consent decrees” are issued based upon a prearranged settlement agreement they collaboratively craft together in advance behind closed doors. Then, rather than allowing the entire process to play out, the agency being sued settles the lawsuit by agreeing to move forward with the requested action both they and the litigants want.

And who pays for this litigation? All-too-often we taxpayers are put on the hook for legal fees of both colluding parties. According to a 2011 GAO report, this amounted to millions of dollars awarded to environmental organizations for EPA litigations between 1995 and 2010. Three “Big Green” groups received 41% of this payback, with Earthjustice accounting for 30 percent ($4,655,425).  Two other organizations with histories of lobbying for regulations EPA wants while also receiving agency funding are the American Lung Association (ALA) and the Sierra Club.

In addition, the Department of Justice forked over at least $43 million of our money defending EPA in court between 1998 and 2010. This didn’t include money spent by EPA for their legal costs in connection with those rip-offs because EPA doesn’t keep track of their attorney’s time on a case-by-case basis.

The U.S. Chamber of Commerce has concluded that Sue and Settle rulemaking is responsible for many of EPA’s “most controversial, economically significant regulations that have plagued the business community for the past few years”. Included are regulations on power plants, refineries, mining operations, cement plants, chemical manufacturers, and a host of other industries. Such consent decree-based rulemaking enables EPA to argue to Congress: “The court made us do it.”

One of my favorites writers Megan McArdle comments on my post about the regulatory excess in California.  The same post was linked by Reason as well.  The Reason post got the attention of Ron Paul, who will be interviewing me for his radio show next week.

I posted a few updates on the article today:

Wow, reading this again, I left out so much!  An employee once sued us at this location for harassment and intimidation by her manager -- when the manager was her sister!  It cost me over $20,000 in legal expenses to get the case dismissed.  I had an older couple file a state complaint for age discrimination when they were terminated -- despite the fact that our entire business model is to hire retired people and the vast majority of our employees are 70 and older.  And how could I have forgotten the process of getting a liquor license?  I suppose I left it out because while tedious (my wife and I had to fly to California to get fingerprinted, for example), it is not really worse than in other places -- liquor license processes are universally bad, a feature and not a bug for the established businesses one is trying to compete with.   We gave the license up pretty quickly, when we saw how crazy and irresponsible much of the customer base was.  Trying to make the place safer and more family friendly, we banned alcohol from the lake area, and faced a series of lawsuit threats over that.

Congress is considering adding gays and lesbians to the list of protected groups covered by the EEOC.  As former chairman of a group that tried to get gay marriage legalized in Arizona (at least until we were shot down by gay rights groups that did not want libertarians or Republicans  helping to lead the effort), I hope I don't have to prove that I have no problem with differences in sexual orientation.  But I have a big problem with Federal employment discrimination law.

If you are unfamiliar with how it works, this is perhaps how you THINK it works:  An employee, who has been mistreated in a company based on clear prejudice for his or her race / gender / sexual orientation, etc. has tried to bring the problem to management's attention.  With no success via internal grievance processes, the employee turns finally to the government for help.

Ha!  If this were how it worked, I would have no problem with the law.  In reality, this is how it works:  Suddenly, as owner of the company, one finds a lawsuit or EEOC complain in his lap, generally with absolutely no warning.  In the few cases we have seen in our company, the employee never told anyone in the company about the alleged harassment, never gave me or management a chance to fix it, despite very clear policies in our employee's manuals that we don't tolerate such behavior and outlining methods for getting help.  There is nothing in EEO law that requires an employee to try to get the problem fixed via internal processes.

As a result, our company can be financially liable for allowing a discriminatory situation to exist that we could not have known about, because it happened in a one-on-one conversations and the alleged victim never reported it.

What I want is a reasonable chance to fix problems, get rid of bad supervisors, etc.  A reasonable anti-discrimination law would say that companies have to have a grievance process with such and such specifications, and that no one may sue until they have exhausted the grievance process or when there is no conforming grievance process.  If I don't fix the problem and give the employee a safe work environment, then a suit is appropriate.  The difference between this reasonable goal and the system we actually have is lawyers.  Lawyers do not want the problem to be fixed.  Lawyers want the problem to be as bad as possible and completely hidden from management so there is no chance it can be fixed before they can file a lucrative lawsuit.

I worry in particular about how this will play out with a new gay/lesbian discrimination law.  We have employed a number of gay couples over the years, and never had any particular internal issue  (I had to defend one couple in Florida from a set of customers who thought that it was inherently dangerous to employ gay people around children camping, but I did so gladly).  But I know I have employees who have religious beliefs different form my own such that they think gay people are damned, evil, whatever.  So now what do I do when I have one of these religious folks in conflict with an employee who is gay?  If I don't separate them, I am going to get sued by the gay person for a hostile work environment.  If I move the gay person, I will get sued for gay discrimination.  If I move or fire the religious person, I will get sued for religious discrimination.

I am happy to work hard to build a respectful, safe work environment, but such laws put me as a business owner in no-win situations.  And the lawyers who craft this stuff consider this a feature, not a bug.  Heads I sue you, tails I sue you.

The Competitive Enterprise Institute has been all over the shutdown of private businesses that take no money from the Federal government, but have been closed by the Administration none-the-less.  The Daily Caller has an article up that includes some quotes from yours truly

During the government shutdown, the Obama administration has forced the closure of privately owned parks, stoking calls from lawyers for park owners to take legal action against the federal government.

“As a lawyer who once worked for the government, I assume there is no legal authority for this because these private tourist attractions were not shut down in prior ‘government shutdowns,’ even under Bill Clinton, who understood how to play political hardball,” Hans Bader, senior attorney at the Competitive Enterprise Institute wrote in an email.

A lawyer with the conservative Heritage Foundation said that the Obama administration’s actions were likely illegal and that business owners forced to close shop should sue.

“They should immediately file a lawsuit and seek a temporary injunction against the government,” said Former Justice Department lawyer Hans Von Spakovsky.

Which is what we are doing right at this moment.  Several other groups are winning similar suits.

Another example (though I am told the Cliff House case was greatly aided by connections they had with Nancy Pelosi).

You may be wondering under what authority the government is taking actions during the government shutdown.  We had a meeting with the Chief of the US Forest Service on Friday.  This is the specific text the Administration is using to justify all of its shutdown actions

(a)(1) An officer or employee of the United States Government or of the District of Columbia government may not—

(A) make or authorize an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation;

(B) involve either government in a contract or obligation for the payment of money before an appropriation is made unless authorized by law;

(C) make or authorize an expenditure or obligation of funds required to be sequestered under section 252 of the Balanced Budget and Emergency Deficit Control Act of 1985; or

(D) involve either government in a contract or obligation for the payment of money required to be sequestered under section 252 of the Balanced Budget and Emergency Deficit Control Act of 1985.

I will leave it as an extra credit exercise for the reader to explain how this text justifies either a) spending extra money to barricade war memorials on the Washington Mall or b) closing privately-funded parks that take not a single dime of government money.    All these tests have everything to do with limiting government expenditures, not limiting citizen access to public lands.

We had some delays (in part because the government is taking a holiday from the shutdown today, so everything is REALLY closed) but we file our lawsuit seeking a temporary restraining order on the US Forest Service in the morning.

Walter Olson has an article on three recent 5-4 decisions where we narrowly avoided Supreme Court rulings that would have further separated liability as a business owner from actual bad actions.  This one in particular resonates with me:

Vance raised the question of who counts as a “supervisor” for purposes of harassment liability. Under existing Court precedent, employers are more or less automatically liable when a “supervisor” engages in harassment. When it’s a co-worker, they are still frequently liable – e.g., if they have received a complaint about it but not fixed things, or if they have negligently allowed the situation to develop – but liability isn’t as close to automatic. As all Justices recognized, however, the old model of a workplace with a military-like chain of command is fast giving way to newer models in which it is extremely hard to tell who is supervising whom, and in particular work orders (“Here, do this for me.”) can issue in multiple directions, not just from “up” to “down.” The four liberal justices were happy to blur the lines by saying that the more people are doing supervisor-like things, the more employees’ misconduct will be imputed automatically to the employer with no chance for it to raise counterarguments that it had acted properly. The majority led by Justice Alito more reasonably recognized that the ability to take tangible employment actions against a co-worker is a better test of “supervisor” than the ability to ask them to undertake some work responsibility.

Last year I got sucked into a lawsuit where an ex-employee, after her termination, sued our company for allegedly racist remarks another employee made about her husband.  The lawsuit was the first we ever heard about the alleged incident -- it was never reported to me or any other manager or employee, it was behavior that was banned by our policies and training, and we never (obviously) had a chance to make any corrections.  The litigant tried to argue that the person who made the alleged remarks was "supervisory" because she had sometimes been asked to draft a shift schedule for the manager.

We eventually had this dismissed, but it cost us $25,000 in legal fees to make it go away.   It was particularly frustrating given that if this had ever been raised as an issue to me, it would have been investigated and heads would have rolled if necessary.  This whole notion of having liability even when operating to the highest standards is just terrifying.  And four Supreme Court justices tried to make all this irrelevant, essentially linking my liability to the standards and intelligence of whoever is my weakest employee.

Death by tort lawyer in 3...2...1

A Colorado jury has awarded $11.5 million in a lawsuit originally brought against helmet maker Riddell and several high school administrators and football coaches over brain injuries suffered by a teenager in 2008.” While the jury rejected the plaintiff’s claim of design defect, it accepted the theory that the helmet maker should have done more to warn of concussions.

If the helmet makers are getting nailed, wait until every high school and college in the country is sued, not to mention the massive suit looming against the NFL.  Expect to see a debate soon, beginning in state legislatures, over tort protection for football.  Texas, for example, has several of the country's tort hellholes but if Friday night high school football is threatened, you can bet that the legislature will be moved to action.