Transgender Children...

California Governor Gerry “Moonbeam” Brown has signed into law a bill (AB-1266) protecting transgender children enrolled in public schools.  Provisions in the bill allow transgender children to choose which gender's restrooms and locker rooms they will use, and choose which gender sports teams they'll participate in.

What does this actually mean?

The bill uses the term “gender identity”, which I found several definitions for out on the web – similar, but not identical.  The basic notion is that your gender identity is that gender that you deeply feel you are – even if that's different than your physical gender.  I couldn't find anything that defined (under California law) how one gets a particular gender identity under the law.  It could be that you simply declare it, or it could be that you have to have a psychiatric professional certify it.  I have no idea.

There really are people out there whose gender identity is different than their actual physical gender – transgendered people.  I've known two in my life.  The first was born a man (and that's how I first new him), but who thought of himself as a woman.  “Robert” became “Robin” while (s)he was an employee of mine.  That was quite an experience, on many levels.  The other was a person born as a woman (coincidentally, “Robin”) who thought of herself as a man.  She became “Al” several years before I first met him.  In this case, Al was an employee of the company I was CEO of, and I had another male employee who complained about Al's inappropriate advances.  Yes, transgender people can also be gay, as I got a quick education on.

I relate the preceding mainly to illustrate through my own experience that transgender people exist.  I have no doubt, personally, of the reality of this condition.  I also have no doubt that some transgender children exist, and in this day and age, they might well be recognized at a young age. 

So I don't doubt the sincerity of the bill's authors, nor the reality of the issue they address.

But I, like many others, am worried about the bill's imposition of potentially very uncomfortable situations on young people who already have enough social challenges.  Again like many others, I worry about its potential for abuse.

First the uncomfortable situations.  Imagine a 16 year old person who is physically male, but identifies as female.  That person, under AB-1266, has the right to choose to use the girl's restrooms and the girls locker room.  I suspect that even in these “enlightened”  times, there are still girls of high school age who are uncomfortable in the presence of nude men, and who would be uncomfortable being nude in the presence of a man (nude or not).  Basically this bill says “tough” to those girls (or the boys in an opposite situation, though the discomfort potential there is admittedly far lower :). 

Then there's the potential for abuse.  This mainly rests upon the requirements imposed by California law on establishing gender identity.  If those requirements are very loose – say, simply the declaration of the student – then it doesn't take much imagination to contrive situations where a horny and curious boy (that would be all of them) establishes gender identity as a girl and thereby gains admittance to about 80% of all teenage boy sexual fantasies.  Because I couldn't find the rules by which one establishes gender identity (under the law), I can't assess the probability of abuse.  I can imagine a fairly “tight” set of rules that would make it difficult for abuse to occur, but this is California; there's no telling what those idiots in Sacramento have actually done.  They probably don't know themselves!

Setting Them Up for Failure...

The city of Richmond, California – already notorious for it's bankruptcy filing – raised eyebrows again with an ordinance it passed this week that prohibits any city contractor from querying its employees (or prospective employees) about their criminal background.  The city also threatened to use eminent domain to buy mortgages at the current market value of the properties.  They're on a real roll in Richmond! 

But this post is about the banning of criminal background checks.

Before I read this article, my thoughts were along the lines of “Oh, great.  Here goes the nanny state again, setting up employers to take the fall.  They'll be held liable for criminal employees, but not allowed to screen out the criminals.”  The article didn't exactly change my mind on that, but it did open my eyes a bit to the complexities of the situation.

The city really isn't trying to let hardened, potentially violent or flat-out dishonest criminals get jobs – though almost certainly that would be a consequence.  What they're really trying to do is to let those with a criminal record who are not likely to be a problem get a job.  The barrier, as the city sees it, is that criminal background checks have a basically binary result: you either do or don't have a criminal background.  For example, suppose you were busted for smoking pot at age 19.  You'd have a criminal record, and a background check would always pick that up, for your whole life.  The city is saying that employers see that “hit” on the criminal background check, and immediately deny the job.

I have two experiences (at two companies) with the use of criminal background checks.  One of these experiences validates the city's concern: at that company, if someone applied for a job and had a criminal background, they were excluded.  It didn't matter what the crime was, or when it was – they simply didn't get a job.  At the other company, more recently, when someone applied for a job and had a criminal record, the nature of that criminal record was weighed against the nature of their job.  If the criminal record was solely drug purchase, it was ignored.  If it included theft or violence, the applicant was turned down.  Other crimes were judged carefully, and factors like how long ago they were, the nature of the role being applied for, etc., were all considered.  In other words, considerable judgment was applied – which, I'd imagine, is precisely what the city of Richmond would really like to see happen.

I think Richmond's legislative fix is a bad one.  As is often the case, the motives were good, but the top-down approach is going to have consequences nobody really wants.   In particular, now when employees commit crimes, companies will be able to point to the new law and make a good case that they can't be liable for something the city mandated.

If employers in Richmond are really too quick to reject applicants with even minor criminal records, perhaps the city would better off considering why that is the case.  Businesses aren't run by stupid people; they must have a reason for rejecting those applicants.  I can only think of two reasons (and both may be operative): the cost of hiring an employee who commits a crime is extremely high, or there are so many applicants for jobs that using a filter like “criminal record” doesn't make it hard to get good employees...

Don't Ever Talk to the Police...

Great advice, presented in an engaging fashion. If you've never delved into this before, you'll likely be surprised...

On a related note: my own experience with juries is limited to the several times I've been in a jury pool (but never selected), and the six months I once spent as the U.S. Navy's “liaison” to the courts near Bremerton, Washington.  Those experiences leave me with just one clear thought: if I'm innocent, I don't ever want to be tried by a jury in the U.S.  I'd much rather take my chances with the judge...

Murder Charges For Ariel Castro...

Prosecutors in Ohio announced that they'll be seeking aggravated murder charges against Ariel Castro, for the miscarriages his abuse of his captive women caused.  I'm surprised that keeping three women captive for ten years doesn't carry the same sort of penalties as murder (life in prison without parole or execution), but apparently it does not.  If charging him with murder is required to make sure that miserable scum is never a free man again, then I'm all for it.

But it does raise some questions.

How, exactly, is it possible to simultaneously have legal abortion and charge someone for murdering a fetus?  If you can charge someone with murder for killing a fetus, then you are saying that killing a fetus is (under the law) the same as killing a human.  If that's the case, then how can abortion be anything other than murder?  It can't be the mother's permission – there's no other circumstance I can think of where permission excuses murder.

I'm no lawyer, but this isn't making sense to me.  I don't see how our legal system can simultaneously hold that abortion is legal and that Ariel Castro is a murderer...

Court Rules Against National Security Letters...

Well, it's about time!

Court of Public Opinion...

I recently blogged about the spat between Elon Musk (of Tesla Motors) and the New York Times.  Musk was convinced that the Times was lying about the results of a test drive they made in a Tesla car, smearing the company's good name and reputation in the process.  Instead of suing the Times through our court system, Musk appealed to the “court of public opinion” by publishing an open letter to the public.  His letter was publicized by hundreds of news sites, newspapers, and blogs.  In the resulting kerfuffle, the New York Times reconsidered its stance and reversed its previous support for their reporter, withdrawing the story.  Elon Musk won that “case” in a manner far more convincing to the public than anything I can imagine emerging from a case pursued in the traditional courts.

I thought that case was interesting, which is why I blogged about it.  Security expert and cryptographer Bruce Schneier saw it as one example of a pattern of behaviors enabled by the Internet.  It's part of the rise of an alternative system of jurisprudence.  An excerpt from his recent article on Wired:

The court of public opinion is an alternative system of justice. It’s very different from the traditional court system: This court is based on reputation, revenge, public shaming, and the whims of the crowd. Having a good story is more important than having the law on your side. Being a sympathetic underdog is more important than being fair. Facts matter, but there are no standards of accuracy. The speed of the internet exacerbates this; a good story spreads faster than a bunch of facts.

...

The court of public opinion has significant limitations. It works better for revenge and justice than for dispute resolution. It can punish a company for unfairly firing one of its employees or lying in an automobile test drive, but it’s less effective at unraveling a complicated patent litigation or navigating a bankruptcy proceeding.

Mr. Schneier is onto something here.  I found myself thinking along these lines recently, as I'm currently in a dispute with a large environmentalist organization.  Seeking justice in a court of law is an intimidating, expensive, and very uncertain proposition.  Seeking justice in the court of public opinion just might be a better alternative – though not one that occurred to me immediately.  Apparently I'm more of a hidebound traditionalist than I thought I was :)

Death to the Patent Trolls?

The advent of “patent troll” companies has seriously perverted the already-perverted world of intellectual property law.  These companies acquire portfolios of patents (or the rights to those patents) with the intent to prosecute companies alleged to be infringing them.  The key word there is “alleged”.  Patent trolls are frequently accused (almost certainly accurately) of bringing actions that they are sure to lose – because they know that the accused companies will often (most of the time, in fact) pay a settlement just to make the lawsuit go away.

Many have noted that the patent trolls are enabled by a feature of American law: that the winner of a lawsuit like this still pays their own legal expenses.  Under English law, the loser pays for both sides legal expenses.  This “loser pays” system greatly discourages frivolous lawsuits, as the side with a good defense is willing to pay for that defense, knowing that if they win the other side is going to pay the entire expense.

Now that same “loser pays” system is being proposed for the U.S. – but only for suits brought by patent trolls.  Defining a patent troll is trickier than it might appear.  Here's an article about the proposed bill, and here's the EFF's statement of support for it...

Some Advice...

...from Abe Lincoln.

Your Morning WTF: Scientists Convicted...

An Italian court has convicted 7 scientists and experts of manslaughter, for failing to predict an earthquake that killed hundreds of people.  They have appealed, and hopefully the conviction will be overturned by a more rational higher court.  Hopefully.

Meanwhile, these scientists live in fear of long prison sentences.

Maybe the Pope will intervene.

Good grief.

Doom...

The Dark Side of Plea Bargains...

I've never liked the whole idea of plea bargaining, for several reasons.  The aspect that bothers me most is that plea bargaining encourages innocent people to plead guilty, which means the wrong person is being punished and the right person isn't.  Today's Wall Street Journal ($) has a disturbing article about this very phenomenon...

This Is Just Wrong...

The U.S. Olympic Committee (USOC) zealously protects its use of the word “Olympic” – if it finds another business trying to associate itself with the Olympic Games without having paid a license fee, it goes after them for trademark infringement.  That's fine, as stated.  The problem here is this: the word “Olympic” has multiple meanings.  It's the name of several mountains or mountain ranges around the world, and it's closely associated with many things Greek.

Now the USOC has successfully forced the owner of the Olympic Gyros to change the name of his business – 30 years after the business was founded, and despite the rather obvious fact that the “Olympic” in “Olympic Gryos” refers to things Greek, and not the Olympic Games.

For shame, USOC, for shame – for even trying to do this.  And what the hell has happened to our legal system that the USOC could prevail in this travesty?

Another Posner Apple Patent Spanking...

Groklaw has it...

ObamaCare's Defense...

Reader Doug S. passed along this gem: a simple recording of Don Verrilli, Jr. defending ObamaCare during the Supreme Court's oral arguments this week.  Mr. Verrilli is a lawyer, and the Solicitor General of the United States (an Obama appointee).



As many commentators have noted (contrary to the current liberal chatter), Mr. Verrilli is a superb and competent lawyer – he's not the problem.  The bad law (ObamaCare) he's being asked to defend is the problem...

Toyota's Accelerator Malfunctions...

If you've been paying attention to this story, you already know the outcome: after months (and millions of dollars) spent investigating the media-hyped reports of electronics problems in Toyota's accelerators that allegedly led to hundreds of accidents and dozens of deaths, the official report says: there is no electronic problem.  The problem was drivers mistaking the accelerator pedal for the brake pedal:

A record $48.8 million in fines, nearly eight million vehicle recalls, hundreds of lawsuits and one humiliating set of Congressional grillings later, we finally learned Tuesday that Toyota cars can't magically accelerate on their own. So what happened? "Pedal misapplications."

Now there's a euphemism for the bureaucratic ages. Department of Transportation Secretary Ray LaHood couldn't bring himself to say "driver error" and he grew testy with a reporter who dared to put it so bluntly. But that's what the National Highway Traffic Safety Administration study, conducted over 10 months with the help of NASA engineers, concluded. Or to put it in plain English: Drivers, in moments of panic, sometimes mistake the accelerator for the brake.

There's something badly broken about a legal system that allows mistakes like this to occur over and over again.  Billions of dollars of shareholder value (that's mom and pop's pension, folks) were destroyed for no reason whatsoever.  I have no magic answers here; wish I did...

725...

That's how many new California state laws go into effect today.  Just the state laws, mind you – that number does not include new county, municipal, or federal laws.

Sometimes it really feels quite hopeless.

And then I think: Rope, tree, legislator.  Some assembly required...

Mandate Take-Down...

This WSJ piece is a good summary of the ruling yesterday that the Obamacare individual mandate is unconstitutional.  A taste:

Judge Hudson's opinion is particularly valuable because it dispatches the White House's carousel of rationalizations for its unprecedented intrusions. The Justice Department argued that the mandate is justified by the Commerce Clause because the decision not to purchase insurance has a substantial effect on interstate commerce because everybody needs medical care eventually. And if not that, then it's permissible under the broader taxing power for the general welfare; and if not that, then it's viable under the Necessary and Proper clause; and if not that, well, it's needed to make the overall regulatory scheme function.

But as Judge Hudson argues, the nut of the case is the Commerce Clause. Justice can't now claim that the mandate is "really" a tax when the bill itself imposes what it calls a "penalty" for failing to buy insurance and says the power to impose the mandate is vested in interstate commerce. Recall that President Obama went on national television during the ObamaCare debate to angrily assert that the mandate "is absolutely not a tax increase."

Moreover, Judge Hudson says that no court has ever "extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market."

The best part so far as I can see is that this ruling is a necessary first step in the inevitable appeals process, so the (first) journey of this legislation to the Supreme Court has begun...

McDonald v. Chicago...

Randy Barnett finds the important bit.

Interesting how the much-disparaged Justice Thomas is the one to successfully ressurect the 14th Amendment's “Priveleges and Immunities” clause...

The Ninth Circus...

Those of us who live in the domain of the Ninth Circuit Court of Appeals have long called it the “Ninth Circus”.  The bozos and leftist idealogues that dominate this circuit have long been the jokes of our Federal judicial system.  Last year they set a record: 88% of all their cases that were appealed to the Supreme Court were reversed by those wiser folks.

Now the Ninth Circus has done it again, by upholding the certification of a ludicrous class action suit against Wal-Mart.  There will be an appeal, and hopefully the Supremes will take the appeal and will spank the Ninth Circus.  Again.

Sigh...

Amazon Fights Back...

Several states have passed the so-called “Amazon tax”, intended to force Amazon to collect sales tax for the state.  These tax measures are predicated on a redefinition of what it means to have “operations” inside the state (which in turn drives the issue of sales tax collection).  Specifically the redefinition means that participants in the “Amazon Associates” program are counted as “operations”.  Amazon Associates are owners of web sites that sign up with Amazon to direct traffic to Amazon in return for a (tiny) sales commission.  For instance, were I so inclined I could sign up for Amazon Associates and then put links on my blog for you to click on to buy a book (or some other product).

The states that passed this law expected that Amazon would simply sigh and comply.  They were wrong.  Amazon's reaction is to play hardball: it is shutting down the Amazon Associates program for anyone in those states.  This is a lose-lose-lose proposition: Amazon loses a source of referrals, the Amazon Associate loses a source of sales commissions, and the state loses the income tax (and most likely, some sales taxes) on the Amazon Associate's lost income.  It's a great example of ignoramuses in government not realizing what the consequences of their actions would be (despite Amazon telling them loud and clear), and it's also a great example of an American business exercising it's freedom. 

Let's hope the states wise up before too much time goes by.  The last thing we need in this recession is more government meddling with successful business models...

Why McDonald v. Chicago Matters...

McDonald v. Chicago matters a lot, if you care about your right to bear arms...