attorney general

President Trump Firing the Attorney General Has Nothing to Do With Nixon

On why the comparison of Attorney General Yates firing to the ‘Saturday Night Massacre’ is sloppy, unhelpful, and perhaps, destructive. 

I spent much of yesterday working on some excellent executive order content for you nice folks, but then I woke up to this1)Kudos to West Coast publishing for catching the late headline. Also, to my friends at the RJ, please cover the news! The stadium doesn’t matter that much right now.:

 

attorney general, las vegas, nevada

 

Well I suppose I can’t, not address that..

Do me a kind a favor and wait patiently for our expose of the executive order. This is a bit timely.

I suspect the previous year we spent building our civics foundation here on the legal blog will prove well worth it!

But back to current events, though.

There is no historical comparison for President Trump firing Attorney General Yates last evening. My friends in the press nearly, in real time, reached for the comparison to President Nixon’s ‘Saturday Night Massacre.’

And yes, I certainly understand how: both involved the firing of an attorney general2)even that is specious/I’m trying.

Today I will elucidate why Attorney General Yates’ firing last night is nothing at all like what occurred with President Nixon and the Watergate investigation. The differences are important.

Hopefully, President Bush will be so kind to join us later on for a little perspective.

 

1. All the Actors Participating in the ‘Saturday Night Massacre’ Behaved in a Predictable Manner; Monday Night Was Anything But Rational

For comparison’s sake, here’s the same paper’s front page3)No wonder he hated Kissinger so much..can’t even let Dick have this front page to himself after the so called ‘Saturday Night Massacre’

attorney general, las vegas, nevada

Briefly, a recap of the events as they were told to me as a child4)What kind of bedtime stories did you hear growing up?:

Recall the Democratic Party was broken into at the Watergate Hotel during the 1972 election. After Nixon won the election, there was suspicion from the Senate that he would appoint a partisan attorney general that would not investigate/enforce the law with respect to the Watergate scandal.

The Senate agreed to confirm Mr. Nixon’s choice for Attorney General, Elliot Richardson so long as he agreed to appoint a special prosecutor, former Ohio senator Archibald Cox5)Larry O’ on the Msnbc last night described Mr. Cox has Mr. Nixon’s most fierce GOP critic. I trust Larry on that kind of thing..

Mr. Cox, as special prosecutor, issued a subpoena asking for the infamous taped conversations of President Nixon. This is where the trouble starts. But please notice what President Nixon does next is both predictable and rational (along with immoral and unethical).

These tapes were going to (and did) bring down President Nixon. What to do then? Delay, Delay!! Mr. Cox made it apparent he would not compromise justice for the President (this was when Mr. Cox rejected a deal on Friday, 19 October 1973).

Next play for Nixon? Fire the man! But wait, the President doesn’t have the authority to fire a special prosecutor appointed by the Attorney General…only the Attorney General can do that. As you can guess, Attorney General Elliot6)Yes it was me that corrected the misspellings in wiki. Richardson declined to disobey the law, and resigned in pretest. Deputy Attorney General William Ruckelshaus followed suit.

Guess who was third in line? Our old friend Robert Bork! This might surprise you, but Mr. Bork was perfectly willing to fire Mr. Cox upon the request of President Nixon and did just that.

Thus, the headline above7)more.

Let’s go through the actor’s behavior, one-by-one, to quickly to emphasize how normal this behavior was in context.

President Nixon, with a basic understanding of decision theory, acted in a reasonable manner (again, still illegal, immoral, unethical). Notice it wasn’t until he was backed into a corner that he had to make such an extraordinary move. It was obvious he was aware of the risk, but at that point that the Special Prosecutor made it known he wasn’t unethical, it made sense to shove his chips to the middle. He was toast.

Now take the lawyers. Attorney General Richardson was presented with an illegal, immoral request from the President. Know that your public servant attorneys swear their allegiance to “the Constitution,” not to any individual person.

Mr. Richardson and Mr. Ruckelshaus did what you would expect of moral men. If you swear an oath to defend the constitution, we expect you to keep it.

It’s very possible you will soon see a current-day corollary as  U.S. Attorneys resign en mass when asked to defend a religious ban in court.8)Just a guess

You can question their tactics, but again, this is reasonable behavior. By resigning in this manner, they upheld the respect their office without compromising their own morality.

This was a tough situation navigated as best they could. And I think history remembers Mr. Richardson and Mr. Ruckelshaus well because of it.

2. Let’s Talk About Why None of This Has Anything To Do With Monday Night and Attorney General Yates

Nothing that happened Monday night is neither reasonable nor rational. There is no reasonable explanation for it occurring when it did, nor one for why.

President Trump issued an executive order over the weekend restricting the travel of foreign nationals of seven Muslim-majority countries while temporarily banning refugees from America for 120 days.9)Please just take this as a straightforward presentation of facts as it is only intended to be. More on this soon.

President Trump signed said executive order without even consulting with the entire executive branch, which includes the attorney general. Ms. Yates, the interim Attorney General until President Trump’s choice is confirmed, would have been an excellent person to discuss a travel ban with as she would be the person primarily responsible with enforcing the law.

As I will show you in a couple of days, that executive order is prima facie constitutional (but not in application! I listened to Washington state’s Attorney General describe his suit in the Western District of WA and he was very persuasive. I would not be shocked if he won.) because the authority for the President to ban people based on national origin was specifically delegated by statute by the Congress. The Trump people are not wrong about this.

They, however, could not have been more sloppy in implementation; there are press accounts that Sectaries Mattis and Kelly were not even informed of the Order beforehand. Why wouldn’t they be informed? There’s no good reason.

This is where Ms. Yates hops aboard our tale. A quick word about Ms. Yates as I have seen a few too many members of the press dismiss her public service in a gendered way that I didn’t like.

Sally Q. Yates.jpg

Just know that this woman isn’t some bleeding heart lefty. She’s a Georgian with proud southern roots that was introduced to the Senate by Republican (certainly no moderates) Senators Perdue and Isakson.

She has been working in public service since the late 1980s, including assisting in the prosecution of the Atlanta terrorist bombing case in 1996.10)The fact that we put these terrorist jerks on trial in a fair, compassionate, human way is an essential element to what makes America great. People like Ms. Yates who work to ensure the law is enforced fairly/justly are underappreciated, in my humble opinion. I’m going to keep pointing this out.

Now, President Trump had more time to prepare his cabinet/government than any other leader in the world gets with that 2 month transition. Of the relationships you need rock-solid for security sake on day 1, the Attorney General must be high on the list. (Recall, there’s only one person in the government permitted to sign those Fisa warrants, the attorney general.)11)If the NSA or similar agency needs a warrant to search, but does not want to make the request public, they go to a secret court called a Fisa court. We just don’t have time for this today, and frankly, to push the blame of Fisa nonsense on Mr. Trump would be unreasonable. This thing goes back years..

I assume when he requested Ms. Yates to stay on as acting Attorney General, that he understood what that meant. Sure, the Attorney General serves at the pleasure of the president, but again, she swears an oath to “Protect and defend the Constitution.” Moreover, the Attorney General is the primary law enforcement official in the country. Evaluation of the laws is just as much of her job as enforcement. This job is different than White House Counsel, for example.

If a very serious woman like this, tells us from the position of Attorney General12)As in, she is a serious enough person to understand the significance that enforcing the travel ban executive order is illegal, we need to take that advice seriously.

Ms. Yates assertion of her opinion is certainly reasonable. I’m not trying to pile on13)Thus, the wordy defense. But I do take issue with form.

Did you see this letter she sent out to all DOJ lawyers yesterday that prompted this reaction? I will excerpt a large portion as you should.

My role is different from that of the Office of Legal Counsel (OLC), which, through administrations of both parties, has reviewed Executive Orders for form and legality before they are issued. OLC’s review is limited to the narrow question of whether, in OLC’s view, a proposed Executive Order is lawful on its face and properly drafted. Its review does not take account of statements made by an administration or it surrogates close in time to the issuance of an Executive Order that may bear on the order’s purpose. And importantly, it does not address whether any policy choice embodied in an Executive Order is wise or just.

Similarly, in litigation, DOJ Civil Division lawyers are charged with advancing reasonable legal arguments that can be made supporting an Executive Order. But my role as leader of this institution is different and broader. My responsibility is to ensure that the position of the Department of Justice is not only legally defensible, but is informed by our best view of what the law is after consideration of all the facts. In addition, I am responsible for ensuring that the positions we take in court remain consistent with this institution’s solemn obligation to always seek justice and stand for what is right. At present, I am not convinced that the defense of the Executive Order is consistent with these responsibilities nor am I convinced that the Executive Order is lawful.(emphasis added)

What? What?? What???

I don’t think I’m permitted to use that dog more than once per post..

I agree in substance, but in not in tone, with Ms. Yates’ first paragraph regarding the Office of Legal Counsel. The OLC should not be relied upon to tell us if laws are constitutional, this was well established under President Bush.14)Here’s looking at you, Jay. You are never going to live that down. Not as long as I’m writing sentences on the internet. In case you’re curious, while in law school at UNLV we openly discussed if you should be tried for war crimes. But I suppose you need to be disbarred first..The fact the UNLV Law Admin even let him in the building is something I’m still not ok with. Shame on you all. Let’s put a pin in that for now; it’s not relevant to our discussion.

I take very serious issue with the bolded sentences above. This is a very serious lawyer that published a very unserious memo from a position of importance. This is not ok.

If the executive order is unconstitutional, why didn’t she tell us why? “Wise and unjust” was a question of fact for the voters, with respect. I can’t honestly discern from the bolded sentences in the second paragraph if she opposes the law because it is immoral or because it is illegal? There’s a huge difference, and the ambiguity does us all harm.

If Attorney General Yates thought a good faith defense of the travel ban by the Justice Department violated the constitution, it was mandatory she say so and explain! Then resign in protest, like her colleagues of the Nixon years.

The wrong way to protest this executive order is by publishing a letter declaring you won’t follow the law. For gosh sakes, the Attorney General can’t say things like that in a civil society. This is much bigger than one lawyer.15)I try to avoid agreeing with Alan Dershowitz publicly, but he is one of the few who is getting this part right. Assume this is the only thing I agree with him about.

So yes, Ms. Yates’ actions were not preferable. But again, this isn’t that uncommon. The Justice Department often will declare a public stance; recently the GOP in Congress had to hire special counsel (in this case “special defense counsel”) to defend their marriage discrimination law. This isn’t all that difficult or uncommon. At least I used to think.

So then why the Trump people overreact so starkly? Again, where is the rationality?

Jonathan Alter called the administration’s moves Monday night an “unforced error,” to borrow from sports. That’s exactly right, well put Jonathan!

Agreed, Ms. Yates letter was inflammatory. But you’re the President! Among the many powers of the executive, s/he may hire special defense counsel! Imagine how much better Mr. Trump would have come off in the press today if he announced that he “respects Ms. Yates public service, but believes in his law and will appoint special defense counsel to defend it in court.” Done. Move on.

Also, I would have never written any of this! It was entirely unnecessary to fire Attorney General Yates.

The worst part of the administration’s behavior, though, was that abhorrent statement they released explaining the firing.

16)No relation. “Betrayed?” “very weak on illegal immigration?” Why would someone release that kind of language in the name of our President?

This type of behavior not ok. By anyone involved. The thing about norms, is there is a reason they came into being.

I hope you see now by calling Monday night’s events similar to the ‘Saturday Night Massacre,’ you are doing a great disservice by not accounting for the completely unnecessary risk the President and the Attorney General subjected us all to.

Each person is responsible for his/her own behavior in the Trump era. No excuses.

And please, please stop crying17)This is not a reference to Ms. Yates! Not even close..

To be fair, there is a growing chorus of defense for Ms. Yates’ actions. The arguments are worth considering.

You Miss President Bush More Than You Realize

Before I go, instead of teasing the ‘Saturday Night Massacre’ folks, I wanted to provide a better historical example.

Let’s hop in our trusty, way-back machine and go all the way back to…2004.

President Bush’s domestic surveillance program had just been declared unconstutional by the Supreme Court, but hey, that’s not going to stop a proud sophist like his White House Counsel Alberto Gonzales!

The Attorney General at the time, John Ashcroft was very sick staying in the intensive care unit of George Washington University Hospital. “Well since John can’t make it into the office,” I assume Alberto thought, “I’ll just bring the reauth to him!”

Attorney General Ashcroft’s Deputy was…you aren’t going to believe it…James Comey!18)The man is this generation’s Bob Gates. Seemingly untouchable!

Comey19)apparently tipped off by Mr. Ashcroft’s chief of staff, through his wife, furious that Alberto was going to get Mr. Ashcroft to sign an extension of the wiretap program under duress, rushed to the hospital and beat Andrew Card (President Bush’s chief of staff) and Alberto by a few minutes.

Then, in one of the most dramatic civil rights disputes to ever take place at a hospital bedside, Mr. Ashcroft refused to sign the reauthorization of the program! The Washington Post will help us with the rest of the details

Card and Gonzales arrived a few minutes later, with Gonzales holding an envelope that contained the executive order for the program. Comey said that, after listening to their entreaties, Ashcroft rebuffed the White House aides.

“He lifted his head off the pillow and in very strong terms expressed his view of the matter, rich in both substance and fact, which stunned me,” Comey said. Then, he said, Ashcroft added: “But that doesn’t matter, because I’m not the attorney general. There is the attorney general,” and pointed at Comey, who was appointed acting attorney general when Ashcroft fell ill.

Later, Card ordered an 11 p.m. meeting at the White House. But Comey said he told Card that he would not go on his own, pulling then-Solicitor General Theodore Olson from a dinner party to serve as witness to anything Card or Gonzales told him. “After the conduct I had just witnessed, I would not meet with him without a witness present,” Comey testified. “He replied, ‘What conduct? We were just there to wish him well.’ “…

“I couldn’t stay if the administration was going to engage in conduct that the Department of Justice had said had no legal basis,” he said. “I just simply couldn’t stay.” Comey testified he was going to be joined in a mass resignation by some of the nation’s top law enforcement officers: Ashcroft, Mueller, Ayres and Comey’s own chief of staff.

Ayres persuaded Comey to delay his resignation, Comey testified. “Mr. Ashcroft’s chief of staff asked me something that meant a great deal to him, and that is that I not resign until Mr. Ashcroft was well enough to resign with me,” he said.

The threat became moot after an Oval Office meeting March 12 with Bush, Comey said. After meeting separately with Comey and Mueller, Bush gave his support to making changes in the program, Comey testified. The administration has never disclosed what those changes were.

As shocking as this story is, it’s the less discussed, ending I want to emphasize today.20)Don’t worry, we got plenty of time for Mr. Comey. I surely didn’t miss that, no sir.

President Bush took ownership of the problem, called a meeting of principals, and resolved this issue quietly!

As these types of highly sensitive, national security matters should be handled, and this could have exploded into a huge, historical ‘Saturday Night Massacre’ type mess. But my guess is, you’ve likely never heard this story,21)Unless you are a super politico nerd like me. We have feelings too! speaking to President Bush’s character.

President Bush could have chosen to overpower his Justice Department, prompting a mass resignation. But I like to think he kept the long game in mind.

If career-minded, conservative folks like Mr. Comey are threatening to resign, there’s probably a good reason.

Men like Jim Comey don’t make threats for fun is my point.

One last point that’s bit unsettling. I talked to someone today that wasn’t taking this event seriously enough.

In turn, I’m here to present what the President’s primary advisor told the the Daily Beast last August. “I’m a Leninist…Lenin…wanted to destroy the state, and that’s my goal too. I want to bring everything crashing down, and destroy all of today’s establishment.”

Oh?

Question, if President Obama informed the public that the executive editor of Vox dot com was now going to attend every ‘Principals Meeting’ of the National Security Council while the Chairman of the Joint Chiefs/Director of National Intelligence will only attend “as needed,” how would you have responded?22)Please note Karl Rove was specifically excluded from these meetings by President Bush.

Question two, if Valarie Jarrett quoted Vladimir Lenin lovingly in the press, how much longer would she have worked at the White House?

Senator Collins agrees.

#Protip from a political vet: You should much prefer your strategist be fans of John over Vladimir..

Let’s all just hope that’s unrelated!

Thanks for reading!

 

Footnotes   [ + ]

1. Kudos to West Coast publishing for catching the late headline. Also, to my friends at the RJ, please cover the news! The stadium doesn’t matter that much right now.
2. even that is specious/I’m trying
3. No wonder he hated Kissinger so much..can’t even let Dick have this front page to himself
4. What kind of bedtime stories did you hear growing up?
5. Larry O’ on the Msnbc last night described Mr. Cox has Mr. Nixon’s most fierce GOP critic. I trust Larry on that kind of thing.
6. Yes it was me that corrected the misspellings in wiki.
7. more
8. Just a guess
9. Please just take this as a straightforward presentation of facts as it is only intended to be. More on this soon.
10. The fact that we put these terrorist jerks on trial in a fair, compassionate, human way is an essential element to what makes America great. People like Ms. Yates who work to ensure the law is enforced fairly/justly are underappreciated, in my humble opinion. I’m going to keep pointing this out.
11. If the NSA or similar agency needs a warrant to search, but does not want to make the request public, they go to a secret court called a Fisa court. We just don’t have time for this today, and frankly, to push the blame of Fisa nonsense on Mr. Trump would be unreasonable. This thing goes back years..
12. As in, she is a serious enough person to understand the significance
13. Thus, the wordy defense
14. Here’s looking at you, Jay. You are never going to live that down. Not as long as I’m writing sentences on the internet. In case you’re curious, while in law school at UNLV we openly discussed if you should be tried for war crimes. But I suppose you need to be disbarred first..The fact the UNLV Law Admin even let him in the building is something I’m still not ok with. Shame on you all.
15. I try to avoid agreeing with Alan Dershowitz publicly, but he is one of the few who is getting this part right. Assume this is the only thing I agree with him about.
16. No relation.
17. This is not a reference to Ms. Yates! Not even close
18. The man is this generation’s Bob Gates. Seemingly untouchable!
19. apparently tipped off by Mr. Ashcroft’s chief of staff, through his wife
20. Don’t worry, we got plenty of time for Mr. Comey. I surely didn’t miss that, no sir.
21. Unless you are a super politico nerd like me. We have feelings too!
22. Please note Karl Rove was specifically excluded from these meetings by President Bush.
electoral college, las vegas, nevada, clear counsel

Nevada’s Loyalty Pledge Law Regarding the Electoral College Violates the Constitution

“If one of them refuses to do it, they will be dismissed and we’ll bring in an alternate…I know there’s been talk about that in other states but that will not happen here.”

-Nevada Secretary of State elections deputy Wayne Thorley

What if I was to tell you the electoral college..isn’t a college at all?1)Sorry

Worse, this ragtag group of federal officials still don’t even have office space, after all this time.

Finally, though, the electoral college has made its way to the national consciousness2)and here i thought my “Opaque election rules and procedures” club would get off to a much faster start. I’ll talk to the marketing guy.., so I thought it’d be fun to talk about what the electoral college is, what they will be doing next Monday, and most importantly, examine if laws that command a federal electoral vote a particular way are constitutional.

Luckily, our elected officials gave us some great material to work with.

“Haven’t I Voted Twice This Year Already?”

Well, if you start in February, a few. One more, I promise. And this time you don’t even need to participate. Your job as engage citizen voter is completed for this year.

In November, you didn’t vote for president, but for electors that will vote for president this coming Monday, 19 December. The following six people were elected from Nevada:

  • Dayananda Prabhu Rachakonda (The only one from Las Vegas. Will the Tyranny of the North know no bounds??)
  • Larry Jackson
  • Joetta Brown
  • Paul Catha II
  • Greg Gardella
  • Teresa Benitez-Thompson

On Monday, these 6 federal electors will convene in Carson City because the electors do not meet in one place, but at all the state capitols. This has been in effect since 1948.

In all previous elections the electors voted the same way as the people who elected them, and given that Nevada voted for Hillary Clinton, it is fair to assume that all six will vote for Hillary too.

But do they have to?

For the first time in my lifetime (likely yours too), there is serious talk of if the electoral college voters may express a different preference than that of the voters. (Vote for someone else)

Today I am not asking should the electors vote their faith, only if they can.

Now, I try not to be too tough in this forum3)This does function as marketing material as well, as I’m sure you are aware, but the Secretary of State elections deputy Wayne Thorley put out quite the statement in the press regarding this subject:

Secretary of State elections deputy Wayne Thorley said both major parties submitted the names of their six electors, one for each Nevada member of the House and U.S. Senate, well before the election.

He said since Hillary Clinton won the popular vote in Nevada, it will be the Democratic list who meets and votes that date. Rather than all 535 Electoral College electors going to Washington D.C. for that vote, they meet in each state capitol so that vote will take place in the capitol as well.

He said under Nevada law, they’re required to vote for Clinton and Tim Kaine.

“If one of them refuses to do it, they will be dismissed and we’ll bring in an alternate,” he said. “I know there’s been talk about that in other states but that will not happen here.”

Wait wut?

“We’ll bring in an alternative” is quite the loaded statement.

Some potential questions consider:

Who is the “we” he is referring to? Does the Elections office have its own enforcement arm? Since when?

What do you mean by “bring”? Is that a physical threat against a federal official?

Who is the alternative? Which alternative is selected first? What behavior needs to be exhibited to trigger this threat?

(I can keep going.)

Most importantly, the assertion that Nevada’s electors have to vote for Clinton/Kaine is unconstitutional and false. (And disappointing as a Nevada citizen to see an elected official make).

Let’s not get mad at Wayne though, he’s not the only elected official in Nevada that does not understand this. Our legislature actually put one of these silly loyalty pledge4)What year is it? laws on our books in 2013:

NRS 298.065  Meeting of presidential electors; nominees whose candidates receive highest number of votes become presidential electors; procedures for filling vacancies; pledge of presidential electors selected at meeting.

      1.  The Secretary of State shall preside at the meeting of presidential electors held pursuant to 3 U.S.C. § 7. Except as otherwise provided in this section and NRS 298.075, the nominees for presidential elector whose candidates for President and Vice President receive the highest number of votes in this State at the general election are the presidential electors.

      2.  If a nominee for presidential elector is not present to vote at the meeting, the position of presidential elector to be filled by that nominee for presidential elector is vacant and the vacancy must be filled as follows:

      (a) If the alternate is present at the meeting, the Secretary of State shall appoint the alternate to the position of presidential elector;

      (b) If the alternate is not present at the meeting, the Secretary of State shall appoint to the position of presidential elector a person chosen by lot from among the alternates present at the meeting, if any;

      (c) If no alternates are present at the meeting, the Secretary of State shall appoint to the position of presidential elector a person who is:

             (1) A qualified elector;

             (2) Present at the meeting; and

             (3) Chosen through nomination by and plurality vote of presidential electors who are present at the meeting; and

      (d) If votes cast pursuant to subparagraph (3) of paragraph (c) result in a tie, the Secretary of State shall appoint to the position of presidential elector a person who is chosen by lot from those persons who tied for the most votes.

      3.  If all the positions of presidential elector are vacant and no alternates are present at the meeting, the Secretary of State shall appoint from the qualified electors one person to the position of presidential elector, and the remaining positions must be filled pursuant to paragraphs (c) and (d) of subsection 2.

      4.  The nomination by and vote of a single presidential elector is sufficient to choose a person to be appointed to the position of presidential elector pursuant to subparagraph (3) of paragraph (c) of subsection 2.

      5.  Except as otherwise provided in subsection 6, a person appointed to the position of presidential elector pursuant to this section may not serve in that position unless the person signs a pledge in substantially the following form:

 

I agree to serve as a presidential elector and to vote only for the nominees for President and Vice President of the party or the independent candidates who received the highest number of votes in this State at the general election.

 

      6.  If a person appointed to the position of presidential elector pursuant to this section is physically unable to sign the pledge, the pledge may be signed by proxy.

      7.  If a person appointed to a position of presidential elector pursuant to this section does not sign the pledge described in subsection 5, that position of presidential elector is vacant and must be filled pursuant to this section.

      (Added to NRS by 2013, 1231)

      NRS 298.075  Voting for President and Vice President; procedures when presidential elector acts contrary to pledge; recording of votes.

      1.  The Secretary of State shall provide to each presidential elector a ballot for the office of President and a ballot for the office of Vice President. The presidential elector shall mark the applicable ballot provided by the Secretary of State for the person who received the highest number of votes at the general election for the office of President and the person who received the highest number of votes at the general election for the office of Vice President. The presidential elector shall sign and legibly print his or her name on the ballots and present the ballots to the Secretary of State.

      2.  After all presidential electors have presented their ballots to the Secretary of State, the Secretary of State shall examine each ballot. If a presidential elector:

      (a) Presents both ballots and the ballots are marked with votes for the person who received the highest number of votes at the general election for the office of President and the person who received the highest number of votes at the general election for the office of Vice President, respectively, the Secretary of State shall accept both ballots.

      (b) Does not present both ballots, presents an unmarked ballot or presents a ballot marked with a vote that does not conform with the provisions of subsection 1:

             (1) The Secretary of State shall refuse to accept either ballot of the presidential elector; and

             (2) The Secretary of State shall deem the presidential elector’s position vacant. The vacancy must be filled pursuant to the provisions of NRS 298.065. The person appointed to fill the vacancy in the position of presidential elector, after signing the pledge described in NRS 298.065, shall mark both ballots and present both ballots to the Secretary of State pursuant to this section.

      3.  Only the votes accepted by the Secretary of State pursuant to this section may be recorded on the lists of votes made by the presidential electors pursuant to 3 U.S.C. § 9.

      (Added to NRS by 2013, 1232)

Well, at least I admire the chutzpah.

I thought there was consensus among legal professionals of how federalism works, but apparently not.

You have to be wondering before we get into the legal weeds (I know I was), where did this come from/who’s idea is this?

(This is the part that doesn’t make the legislature look very good).

..It was copied and pasted from a lobbyist organization called Uniform Laws.5)If you unfamiliar with these ALEC-type organizations, I will explain briefly. Very rich folks paid to found the fancy organization with governmental sounding names to write drafts of laws they would like see enacted in the states. Jane Mayer’s book on the topic is excellent

The people who do this for a living (shadow-write your state laws) don’t think the public is offended by this idea that people would sit in Washington D.C. and write your Nevada laws.6)This has always shocked me. Not only do they keep a public-running tally of the states in which they’ve succeeded, they even provide a handy map as a visual aid.

Map of the 4 States

Our legislators didn’t even have the shame to not openly admit that this law was suggested by a lobbyist; the notes from the 2013 session say explicitly they are adopting this uniform law.7)Please have more shame going forward

Justification for laws often takes place in the Legislative Digest (for example I am writing about the new moped law, and the digest says taxing/regulating mopeds is the the safety of the riders. No, no, not today..). Here is the Digest for the loyalty pledge law. It provides no justification at all. You would think for as something as important as elections..

So why did Nevada, after voting in one manner since 1948, need to update the voting laws in 2013? The best rhetoric you can find is this for-profit argument (as in, he was told was conclusion to have and then justified it accordingly) from this Northwestern Professor8)What’s going on at Northwestern? Yikes.

I’m not impressed with what he wrote, especially given the incentive structure; I’ll allow you to evaluate it on your own.

My Opinion Regarding the Electoral College is Fairly Common; I Wish I Could Justify Why the Nevada Law Got Put Into Effect

As the last sentence of our loyalty pledge law makes clear (“Only the votes accepted by the Secretary of State pursuant to this section may be recorded on the lists of votes made by the presidential electors pursuant to 3 U.S.C. § 9”.), our legislators are at least aware that there is federal law governing the electoral college.

My favorite part of that sentence of our statute, is that if they would check back just one more section they would see that there already is federal law governing the electoral college 3 U.S.C. § 8:

“The electors shall vote for President and Vice President, respectively, in the manner directed by the Constitution.”

You know what is literally not “the Constitution”? That’s right, the Nevada legislature. Or any other state legislature for that matter.9)Please find me the constitutional provision that allows the states to invalidate electoral college votes.

It’s from this same chapter in the federal code that we decide when the electoral college meets:

3 U.S. Code § 7 “The electors of President and Vice President of each State shall meet and give their votes on the first Monday after the second Wednesday in December next following their appointment at such place in each State as the legislature of such State shall direct.”

So what we have here is called a conflict of laws because the state of Nevada claims they can disqualify a elector based on her vote, and the federal law says “the constitution” (and nothing else) governs the electors.

Who wins? The federal law. By the Supremacy Clause of the U.S. Constitution:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The laws of the United States are supreme to state laws. We’re talking  McCulloch v. Maryland type of certainty here.10)As in, there is consensus

We saw this not too long ago with the GMO labeling laws and Vermont. We discussed how, in response to Vermont’s strict GMO-label law, the industry moved to get a federal law passed covering the same topic, making the federal law supreme to that hippie-Vermont GMO bill.11)Oh Vermont, never change..You better believe they carved exemptions for their home industries cheese/syrup

So am I saying that the entire loyalty pledge law in Nevada is unconstitutional? No. The federal congress granted authority to the states to address electoral vacancies:

Each State may, by law, provide for the filling of any vacancies which may occur in its college of electors when such college meets to give its electoral vote. 3 U.S. Code § 4

So if there is a vacancy on Monday (one of the electors is absent), NRS 298 instructs us how the Secretary of State will fill the spot. The law they crafted, although weird seems fine with respect to vacancies.

So the power to resolve vacancies has been delegated to the states by this 1948 federal statute covering the electoral college. Why did it take until 2013 for Nevada electeds to take this option? What changed?

The answer is so incendiary I can’t publish it in marketing material like this. There’s a reason you can’t find a written justification for this law anywhere.

What I will say though, is if this was about “the will of the people” not being met, isn’t the obvious solution direct election of the president? (I would support such a measure).

100 years ago we weren’t even directly electing our U.S. Senators; we’ve certainly made some progress.12)I’m listening President Obama; I swear. If the goal is to ensure that the people’s will is effectuated through the vote, the best means to do this is not through obscure, likely unconstitutional, statutes. It’s also highly inefficient.

Nevada’s Loyalty Pledge Law Isn’t Seen As Unconstitutional Just By Me

The (nonpartisan) Congressional Research Office exists to provide necessary background to our legislators before voting on complicated issues. From the limited material I’ve read, their work is excellent. I’ve never heard a cross word against them (Evan McMullin worked for them explaining foreign policy before he ran for president. Bright people like that work there. You will get to see the person who wrote the proceeding grafs momentarily.). In April (8 months ago) of this year, they published a clear explanation of what the electoral college is and how it got to this place for U.S. members of congress13)This is the office that your representatives rely on for data. It’s hard to be more trusted. The man is obviously more conservative14)when I use this word I don’t mean anything pejorative than me, yet we’ve reached the same conclusion:15)The law isn’t supposed to be political

Presidential electors in contemporary elections are expected, and, in many cases pledged, to vote for the candidates of the party that nominated them. While there is considerable evidence that the founders intended that they would be independent, weighing the merits of competing presidential candidates, the electors have been regarded as agents of the public will since the first decade under the Constitution. They are expected to vote for the candidates of the party that nominated them. “Faithless” electors provide an occasional exception to that accepted rule.

…Notwithstanding the tradition that electors are bound to vote for the candidates of the party that nominated them, individual electors have sometimes broken their commitment, voting for a different candidate or for candidates other than those to whom they were pledged; they are known as “faithless” or “unfaithful” electors. Although 24 states seek to prohibit faithless electors by a variety of methods, including pledges and the threat of fines or criminal action, most constitutional scholars believe that once electors have been chosen, they remain constitutionally free agents, able to vote for any candidate who meets the requirements for President and Vice President. Faithless electors have been few in number: since 1900, there have been eight, one each in the elections of 1948, 1956, 1960, 1968, 1972, 1976, 1988 and 2004, and one blank ballot cast in 2000. They have never influenced the outcome of a presidential election, however, but their “faithless” votes, or failure to vote, were all duly recorded, and none of these faithless electors was prosecuted for this action. (Emphasis added).

I would like to think that any person with a basic understanding of federalism would conclude the same, but sophism seems to be all the rage.

The National Archives points out that the Supreme Court has “not specifically ruled on the question of whether pledges and penalties for failure to vote as pledged may be enforced under the Constitution.”16)Source That’s a fair point. This is undecided law.

Do you really think a federal court is going to enforce a state law that commands a federal official how to vote? Really?

The Secretaries of State throughout the country produced this nice handout where you can see how popular this idea has gotten. Doesn’t make it anymore constitutional17)I think the word ends in -hameful.

Mess With the Electoral College at Your Own Risk

Now, if you were an elector and trouble-maker (We know that at least one of the electors is an ran Bernie’s operation in Reno, making this a possibility) you might have some potential fun come Monday.

Let’s say for example you do not like this loyalty pledge law and want it declared unconstitutional by a federal court. In law, there’s a rule called standing which determines what potential plaintiffs are sufficiently connected to a matter enough to sue. It’s used to stop too many people from suing when they should not.

It’s possible that the only people in Nevada that would have standing to challenge the loyalty pledge law would be one of these electors. And they may only have an opportunity to do so every 4 years.

Only if the elector voted as s/he intended, but then was removed by the Secretary of State (as they are threatening to do in NRS 298.), would said elector have standing and a cause of action to bring a claim.

The Secretary of State’s office needs to be prepared for this. Hopefully between now and then, they realize they should not enforce an unconstitutional law, and allow the electors to vote as they choose. (The Congressional Research Office says one of these laws have never been enforced..there must be reason.)

The New York Times recently used our Secretary of State as an example of an elected official using the office to lobby (They have Nevada Energy emails), and I can’t be the only person living here waiting for an explanation. All eyes will be directed their way early next week.

The Secretary of State’s work Monday is likely the most important they will likely ever do. Here’s to hoping they realize that.

If you would like to learn more about the electoral college (or check my work), I invite you to spend a few minutes with Mr. Neale (the Congressional Research Office employee I quoted at length).

If you are unsure if it is proper for an elector to evaluate the candidate for president, just watch the first two minutes.

Thanks for reading.

 

 

Footnotes   [ + ]

1. Sorry
2. and here i thought my “Opaque election rules and procedures” club would get off to a much faster start. I’ll talk to the marketing guy..
3. This does function as marketing material as well, as I’m sure you are aware
4. What year is it?
5. If you unfamiliar with these ALEC-type organizations, I will explain briefly. Very rich folks paid to found the fancy organization with governmental sounding names to write drafts of laws they would like see enacted in the states. Jane Mayer’s book on the topic is excellent
6. This has always shocked me
7. Please have more shame going forward
8. What’s going on at Northwestern? Yikes
9. Please find me the constitutional provision that allows the states to invalidate electoral college votes.
10. As in, there is consensus
11. Oh Vermont, never change..You better believe they carved exemptions for their home industries cheese/syrup
12. I’m listening President Obama; I swear.
13. This is the office that your representatives rely on for data. It’s hard to be more trusted.
14. when I use this word I don’t mean anything pejorative
15. The law isn’t supposed to be political
16. Source
17. I think the word ends in -hameful.
facebook, fake news, las vegas, nevada

On Facebook Fake News or Why Zuck Should Probably Brush the Dust Off That History Text

The language below is from the official “Office of the Historian”1)Yes a .gov page describing “Yellow Journalism”..I may have omitted a few terms

U.S. Diplomacy and Yellow Journalism, ____–_____

Yellow journalism was a style of newspaper reporting that emphasized sensationalism over facts. During its heyday in the late _____ century it was one of many factors that helped push the United States and _____ into war in _____ and the _______, leading to the acquisition of overseas territory by the United States.

What century is that from?

Ok fancy pants, so you knew that was from the end of the 19th Century regarding the Spanish-American War, eh? But can you tell me when this is from?

..We can only hope to contain you, it’s true.

One more media file before we get going, just in case you haven’t seen it cited in the social media. The kids over at the Buzzfeed produced some data journalism that have some put folks in a tizzy:

There are enough people earnestly engaging with gall of even publishing a chart2)Source like this on many different platforms. Check them out if you are so inclined.

I wish I found it more interesting.

Remember kids, your data output is only as good as your model3)Here’s lookin’ at you, Mook. And there is a lot to question about the methodology here, namely:  1. Relying upon averages, & 2. How journalism is classified as “mainstream” vs. “fake”4)A quick word on this…this silliness that was all the rage during election season and this is nothing against those cats that found a way to profit over the public’s growing demand for an arbiter to determine what is really true and what isn’t…it just isn’t that simple most of the time. And it is time honest about it. Let’s use these facebook news stories as an example that proves the heuristic. Some stories are easily to tell that they are “fake”..We can find out through a search of major media organizations if the Pope endorsed an American candidate for President. Fine, throw that one on the “fake” pile. And seriously facebook, the public isn’t unreasonable to expect this nonsense not to appear.Let’s try an assertion even a little more complicated: Crime is going up. This is both “Mainstream” and “Fake” depending upon where it was published, what time frame it is referring to, what geographical area it emcombasses, and more variables I haven’t listed. And it only gets worse the more complicated an assertion you try to make. This is why reputation matters so! Overall, I contend “Fake” vs. “Mainstream” unless only referring to platforms (which seems eliteset, especially coming from Buzzfeed) is just too broad of a framework to be helpful.

What if I was to tell you dishonest journalism did not come into inception with Snapchat, and that a short trip in the Way-back5)Tm pending machine might be a little beneficial (I promise there will be pictures!)

Facebook Ain’t No New York Journal; Zuck Ain’t Got Nothing on Our Boy Willie Hearst

All I keep hearing is how no one wants to buy newspapers anymore6)This has taken an interesting turn in the previous week, yet they keep printing the same content in the same format, achieving the same failure.

Let me take you back to the golden age of News-o-tainment, the 1890s, to the newspaper wars between Joseph Pulitzer and William Randolph Hearst:

facebook fake news

..Would you be more inclined to pick up something that resembled that at your local newsstand? 7)More on the “yellow kid” depicted above. The illustrator saw him as Lucky-Rascal type, “The Yellow Kid was not an individual but a type…When I used to go about the slums on newspaper assignments I would encounter him often, wandering out of doorways or sitting down on dirty doorsteps. I always loved the Kid. He had a sweet character and a sunny disposition.”[Source] Contrary to popular myth, “yellow journalism” is not a reference to the rival “yellow kids” in the rival New York papers. It actually refers to the yellow text. Best part? They had to stop using the yellow text after using said text to turn the American public against the Spanish occupation of Cuba. Google the Spanish flag if that doesn;t make sense.

Fake/sensationalist news has been around for decades before Al Gore..One could reasonably contend that so long as there has been the printed word, there likely has been the falsely-printed word.

The 1890s were the heyday for such printed content as the rival electronic mediums that would take newspaper’s market share in the 20th century had not come to fruition.

The rivalry between Hearst and Pulitzer is the most notorious of the “Yellow Journalism.”

At first, the competition was innocuous. Pulitzer first commissioned R.F. Outcault to draw “the yellow kid”in 18938)Above, but the sales of his paper didn’t go viral until the comics were published in color in 18959)which of course, he had to do to keep up with Hearst

But this wasn’t the only way the publishers attracted more sales. The intense competition for sales lead the publishers to produce more and more salacious content. Specifically, each began publishing headlines encouraging the American public to support a military excursion into Spanish-occupied Cuba:

facebook fake news

Talk about a noble addition to our civic debate!

Willie, you wanna take a shot at this?

facebook fake news

10)SourceMy man! Not a bad effort at all.

As the loyal Americans I know my readers are11)We love our English/Japanese/Australian readers too! [And others if you let me know], if someone showed you those pieces of paper, you would be outraged! And rightfully so!

If the truth can set us free, does a half-truth make us half free? Or is truth more of an all-or-nothing proposition, like being “wet”?12)Have you ever been half-wet? Bet not.

I would contend we would be better off with no information at all because all a half-truth does is bias you. And now that you are biased, you are unable to make an honest assessment.13)I am far from the only person that believes this. Nassim Taleb’s books are all about this.

It is hard to imagine what type of society we had 100 years ago that was demanding such salacious material; there’s just no means that we would be relate to those circumstances in any way.

None at all:

Yellow journalism was a product of a lusty, fiercely competitive, and intolerant time, when editors were known to shoot editors, when editors were shot by their readers, and when newspapers almost casually traded brickbats and insults. The latter practice was remarkably well-developed at the end of the nineteenth century…

More generally, yellow journalism reflected the brashness and the widely perceived hurried pace of urban America  at the turn of the twentieth century. It was a lively, provocative, swaggering style of journalism well suited to an innovative and expansive time – a period when the United States first projected its military power beyond the Western Hemisphere in a sustained manner.

The recognition was widespread at the end of the nineteenth century that the country was on the cusp of rapid, perhaps even disruptive transformation. For example, the demographic profile had begun to swing from predominantly rural to largely urban; the population of U.S. cities expanded by nearly one third during the 1890s, growth fueled in measure by incipient immigration from central, southern, and eastern Europe.

The sense of change at the end of the nineteenth century went well beyond demography, however. It was more profound, more elemental.”Political, commercial, social, artistic and religious customs and thoughts that have stood for many years – some for many centuries – are yielding place to new more rapidly than they have for many generations past,” one commentator wrote in the spring of 1898. “Scientific discovery, popular education, free thought and business enterprise are all factors in the change.”

“Scientific discovery” seemed to have annihilated time and space. “Space is no intervention now between communication,” an editorial writer in Cincinnati marveled in 1900. “[N]ot only do the wires of copper bind the world together in closer communication, but with the telephone it is possible to converse with friends a thousand miles away, hearing distinctly every word and recognizing the individual voice. Closer acquaintance has thus wrought vast changes in public opinions and policies. The entire civilized world has been drawn more closely together, old ideas and prejudices have been wiped out.”(all emphasis added)

..And here I thought J.D. Vance was are only resource going forward. What was that silly line from Battlestar? Something about things happening before, then again and again..I forget.14)My gosh, in case you aren’t filled to the brim with 19th century ironies, look at Campbell’s list of “Defining Characteristics” of yellow journalism: “the frequent use of multicolumn (sic) headlines that sometimes stretched across the front page, a variety of topics reported on the front page, including news of politics, war, international diplomacy, sports, and society, the generous and imaginative use of illustrations, including photographs and other graphic representations such as locator maps, bold and experimental layouts, including those in which one report and illustration would dominate the front page Such layouts sometimes were enhanced by the use of color, a tendency to rely on anonymous sources, particularly in dispatches of leading reporters (such as James Creelman, who wrote for the Journal and the World), a penchant for self-promotion, to call attention eagerly to the paper’s accomplishments. This tendency was notably evident in crusades against monopolies and municipal corruption.” I for one, can’t handle much more cognitive dissonance..

And I am happy to report that there was a course correction in terms of the veracity of what the papers published.

Although the newspapers got more and more sensational/yellow, even after being accused of pushing the country into the Spanish-American War, the assassination of President McKinley finally caused the industry to change.

This is where your boy Zuck wants to start paying attention because it was his 19th century corollary, Willie Hearst, that got blamed.

Whether it was fair or not.

William Hearst’s New York World published the following editorial 20 months before President McKinley’s death:

“Institutions, like men, will last until they die; and if bad institutions and bad men can be got rid of only by killing, then the killing must be done.”

Wanna guess who got blamed after-the-fact? Good lord, Willie..

It’s important not to get stuck in the weeds with these facts15)Common issue with my reading on the topic. The fact that the editorial (there were more than 1 like this) appeared more than a year before the assassination doesn’t matter. The fact that the steelworker that killed President Mckinley didn’t speak English doesn’t matter either.

If the public thinketh, therefore it is. 

And did his friends in the publishing industry made sure to hammer home what the public was thinking! The entire country was covered in “Letters to the Editor” expressing citizen’s anger with Hearst profiting off the death of a President.

Not to mention the cartoonists.

Sure, his company grew, but William Hearst had much larger ambitions than that. He would go on to lose 3 New York Mayor/Governor races in the coming decade.

Hearst could just not overcome those “yellow” accusations16)“I thought you said we were done with irony”.

Speaking of big ambitions, there’s no way Zuck could overcome a similar situation. And given how many people are blaming Facebook17)Why is this happening by the way? What does it say about us all that so many of our fellow citizens are so interested in dishonest bile? Isn’t a better question why we have a culture that this is receptive in? We can’t stop lies; they just find new mediums to express themselves. The reasonable alternative is to empower people to identify nonsense on its face. A good example would be raising a kid in a big city, like New York. New York is nice but also dangerous in some parts. If you needed to live in New York (for work) and wanted to raise small children, you would go through this same analysis. There is no way the city will be able to use regulation/public policy to rid themselves completely of all danger. It’s just too big(like the internet). There is too much we cannot control. We can teach our kids strategies to be safe though: Stay in crowds, stay in lighted areas, avoid seedy areas too late at night, etc. We need to do the same with our children regarding information veracity. For example, if the source of your facebook news story is The Santa Fe Guardian(As far as I know this is not real) and you have never heard of such a thing, be skeptical! For example, if the outcome reported is absurd, get a second source. And so on. for an election, just imagine the anger if something more serious occurred.

Plausible deniability only helps you so much as it is plausible. And unfortunately for Zuck, that determination will be made with a mob mentality when the time comes.

In this era of hyper-globalization, it is not just political ambitions at risk either. Crazy how fast you can lose a billion dollars these days..

It’d be worth the time for facebook people to see how Joseph Pulitzer spent the last 10 years of his life after President McKinley’s assassination (There’s a good reason the journalism prize is named after him).

So yes, there are plenty of socially beneficial reasons for Zuck to ensure facebook is not publishing fake news, but he has plenty of selfish motives to as well.

The sooner he comes to that realization, the better off we’ll all be.

 

Footnotes   [ + ]

1. Yes a .gov
2. Source
3. Here’s lookin’ at you, Mook
4. A quick word on this…this silliness that was all the rage during election season and this is nothing against those cats that found a way to profit over the public’s growing demand for an arbiter to determine what is really true and what isn’t…it just isn’t that simple most of the time. And it is time honest about it. Let’s use these facebook news stories as an example that proves the heuristic. Some stories are easily to tell that they are “fake”..We can find out through a search of major media organizations if the Pope endorsed an American candidate for President. Fine, throw that one on the “fake” pile. And seriously facebook, the public isn’t unreasonable to expect this nonsense not to appear.Let’s try an assertion even a little more complicated: Crime is going up. This is both “Mainstream” and “Fake” depending upon where it was published, what time frame it is referring to, what geographical area it emcombasses, and more variables I haven’t listed. And it only gets worse the more complicated an assertion you try to make. This is why reputation matters so! Overall, I contend “Fake” vs. “Mainstream” unless only referring to platforms (which seems eliteset, especially coming from Buzzfeed) is just too broad of a framework to be helpful.
5. Tm pending
6. This has taken an interesting turn in the previous week
7. More on the “yellow kid” depicted above. The illustrator saw him as Lucky-Rascal type, “The Yellow Kid was not an individual but a type…When I used to go about the slums on newspaper assignments I would encounter him often, wandering out of doorways or sitting down on dirty doorsteps. I always loved the Kid. He had a sweet character and a sunny disposition.”[Source] Contrary to popular myth, “yellow journalism” is not a reference to the rival “yellow kids” in the rival New York papers. It actually refers to the yellow text. Best part? They had to stop using the yellow text after using said text to turn the American public against the Spanish occupation of Cuba. Google the Spanish flag if that doesn;t make sense.
8. Above
9. which of course, he had to do to keep up with Hearst
10. Source
11. We love our English/Japanese/Australian readers too! [And others if you let me know]
12. Have you ever been half-wet? Bet not.
13. I am far from the only person that believes this. Nassim Taleb’s books are all about this.
14. My gosh, in case you aren’t filled to the brim with 19th century ironies, look at Campbell’s list of “Defining Characteristics” of yellow journalism: “the frequent use of multicolumn (sic) headlines that sometimes stretched across the front page, a variety of topics reported on the front page, including news of politics, war, international diplomacy, sports, and society, the generous and imaginative use of illustrations, including photographs and other graphic representations such as locator maps, bold and experimental layouts, including those in which one report and illustration would dominate the front page Such layouts sometimes were enhanced by the use of color, a tendency to rely on anonymous sources, particularly in dispatches of leading reporters (such as James Creelman, who wrote for the Journal and the World), a penchant for self-promotion, to call attention eagerly to the paper’s accomplishments. This tendency was notably evident in crusades against monopolies and municipal corruption.” I for one, can’t handle much more cognitive dissonance..
15. Common issue with my reading on the topic
16. “I thought you said we were done with irony”
17. Why is this happening by the way? What does it say about us all that so many of our fellow citizens are so interested in dishonest bile? Isn’t a better question why we have a culture that this is receptive in? We can’t stop lies; they just find new mediums to express themselves. The reasonable alternative is to empower people to identify nonsense on its face. A good example would be raising a kid in a big city, like New York. New York is nice but also dangerous in some parts. If you needed to live in New York (for work) and wanted to raise small children, you would go through this same analysis. There is no way the city will be able to use regulation/public policy to rid themselves completely of all danger. It’s just too big(like the internet). There is too much we cannot control. We can teach our kids strategies to be safe though: Stay in crowds, stay in lighted areas, avoid seedy areas too late at night, etc. We need to do the same with our children regarding information veracity. For example, if the source of your facebook news story is The Santa Fe Guardian(As far as I know this is not real) and you have never heard of such a thing, be skeptical! For example, if the outcome reported is absurd, get a second source. And so on.
samsung, las vegas, nevada, note 7, exploding phone

ClearCast Episode 7: What Kind of Legal Trouble is Samsung in Over the Note 7 Recall?

[Editor’s note]

..Not bad at all.

And Welcome to today’s ClearCast!

As always, we appreciate you coming back and all the comments we’ve received through our social media channels.

Today, we tackle the controversy surrounding Samsung and the defective Note 7 phone.

If you are unfamiliar, more than 92 cases of exploding Samsung phones have been reported in America (with more than another dozen reports worldwide).

Included are a phone causing a car to burst into flames, and a very sad story of a small boy in Brooklyn whose phone blew up in his hands as he was watching a video.

Samsung has issued a recall for the defective phones. Problem solved, yes?

Not exactly..

Thanks for watching

-Brian

[End note]

 

 

Transcript:

Jordan Flake: Hi welcome to ClearCast. I’m attorney Jordan Flake and I’m here with attorney Jared Richards, my esteemed partner and personal injury attorney extraordinaire. The reason we brought Jared on today is because he’s going to give us some insight as to a potential, I don’t know I guess it would be a potential products liability issue that’s going on in the news right now. If you pull out your phone right now there’s a chance that you own a Samsung phone, just because it’s a highly popular phone here in America. Jared happens to own the Edge, which fortunately for Jared is not the Samsung phone that’s been blowing up.

Jared Richards: It’s not likely to blow up on me as far as I know.

Jordan Flake: As far as we know.

Jared Richards: I guess we’ll only find out in time.

Jordan Flake: Samsung has recently released the very popular Note 7 and it’s been blowing up on people. In fact there have been 92 reported cases of these phones blowing up. How do we start to think about this? Jared, if somebody calls you up on their land line because their phone’s exploded. They call you on the land line and they say, “Jared, my Note 7 blew up while I was watching a video. It burned both my happens.”

Jared Richards: Now and handless.

Jordan Flake: Now I’m handless.

Jared Richards: When it blows up do we know how violent the explosions are?

Jordan Flake: Brian. Can you help us out. Brian’s off camera here. He can help us with that.

Brian: It varies from explosion to explosion. Some have been very serious.

Jordan Flake: Some just kind of catch fire.

Brian: Some explode in people hands. One exploded in a guy’s pocket. He had a second degree burn on his hand when he tried to take it out of his pocket.

Jared Richards: What’s interesting is, as you know I was in the air quite a bit last week. We had business up in Canada and we had business in Iowa. I had to fly out to go handle those. When I boarded the airplane, every airplane that I boarded, except for Frontier so I guess I worry about them a bit, but every other airline as I boarded they gave us the express instruction that if we have a Note 7 that we are not to turn it on, not to use it, not to take it out of the bag, make sure that it is off at all times. This is something that the … they were saying that was what the FAA was instructing them to say. It’s something that’s of concern that airlines certainly don’t want to have random fliers and explosions on the airplane. As you try to smuggle the Note 7 and you get tackled as a terrorist. Clearly it’s a concern if the phone is going to explode.

The way that I think this is going to play out, it’s going to depend. Every state handles this a little differently. When a manufacturer produces products that go to every state, you’re going to be dealing with generally in the laws of the state that the person got hurt in. Although that might be an interesting analysis that somebody does at some point if they don’t like the laws of their state. We have two problems here. We have one, exploding phones. The exploding phone itself makes the product not worthwhile. Nobody wants have an exploding phone and nobody wants to have the risk of having an exploding phone.

Jordan Flake: Although Samsung did point out that the risk was about the same as getting struck by lighting.

Jared Richards: Sure but nobody opts into that situation. Nobody stands on a mountaintop during a thunderstorm with a rusty umbrella saying, “God I dare you.” As I was flying trying to turn on my Note 7 and an air Marshall was tackling me I was trying to explain to him …

Jordan Flake: It’s only as likely as getting struck by lightning.

Jared Richards:  We have three potential different types of lawsuits that might go on on something like that. First you have a class action suit. The point of a class action suit is that everybody has the same kind of damages. Whereas some people have been burnt and some people have had other property destroyed, they don’t all have the same type of damage. There is one aspect of damage that everybody does have. That is everybody now has a phone that has either exploded or that they’re worried about having explode. The cost of the phone itself is a similar damage across the board. Presumably some law firm out there probably already has started a class action suit to try to represent everybody in the United states in the market that has purchased this phone to try to get them a refund for the price of their phone. Quite frankly that could be a huge class action. For the individual person it’s not all that valuable, it’ll be a few hundred dollars. For the attorney’s that take a percentage of the total amount it’s going to be a significant amount.

Then we have two other types of injuries. We have injuries to person and injuries to property. There are two different theories of liabilities that are going to be popular here. The first theory is that of strict products liability. Strict product’s liability is only going to deal with the malfunctions that actually hurt a human. Strict product liability, probably if you need to replace your pants that got burnt or on the case that Brian was telling us about where a car was burnt down or if you’re an airline owner and somebody smuggles in the Note 7 and blows up your plane with it that really isn’t a strict products liability because we’re dealing with property damage.

As far as damage to people go, what we look at and different states do different things. The majority of states still follow what we call the consumer expectation test. The consumer expectation test just simply asks the question when you buy a phone and it blows up on you were you expecting it? This area of law actually is really complex and there’s a lot of law and a lot of judgement and case law that we can use on this and different tests that we use. The very basic test is that of consumer expectation. If the phone is more dangerous than a consumer would normally expect then it’s a dangerous product and the company is going to be strictly liable …

Jordan Flake: For the damage to the person.

Jared Richards: For the damage to the person under that idea that the manufacturer is really the common factor and it doesn’t’ even matter, let’s say that to make the phone explode you have to turn around three times and spit over your left shoulder and that’s the only way you make it explode. You say, ‘Well people shouldn’t be turning around three times and spitting over their left shoulder. That person was negligent.” In strict product liability we don’t even care about the negligence of the user. We look at what the manufacturer did.

Jordan Flake: Right so if you left your phone … let’s say the common denominator is everybody had left their phone in a hot car immediately prior to picking it up and putting it in their pocket.

Jared Richards: You say, ‘Well why did you do that? That was stupid?”

Jordan Flake: Right you shouldn’t leave that in a hot car.

Jared Richards: Under a normal analysis you would look at the total damage. Let’s say the total damage was $100 to the person. It’s going to be more than that but $100 is a nice even number. You’ll say, “Okay well we’re going to put 20% on the user because they shouldn’t have left it in the car. We’ll put 80% on the manufacturer, manufacturer you have to pay 80%.” Under strict product liability we don’t care what the user did. We put it all on the manufacturer and the manufacturer is going to be liable for the damage they’ve done.

Jordan Flake: As a policy consideration of we want the big and powerful product manufacturers in our country, such as Samsung, to make safe product.

Jared Richards: To make safe products. Now other states are going to use other tasks, not so much consumer expectation, that was there a safer design? The answer is, I don’t know my phone hasn’t blown up on me. I’m sure that there’s a safer design out there, one that doesn’t blow up.

Jordan Flake: Should I just stop carrying my phone. I carry my phone in my front pocket. Could I carry it somewhere else?

Jared Richards:  You’re not going to be carrying it … I was thinking maybe you have a special case to make it so it doesn’t … it’s like a firecracker. What happens when you put your hand around a firecracker? Big explosion. You have to be careful. As far a damage to property we use a different theory of law, it’s called a product warranty. It’s just simply saying there was an implied contract that they were going to give you something that wasn’t going to blow up. They breached that contract so now they’re responsible for the property damage they caused.

Jordan Flake: Let me ask you a question. Let’s say the judge looks into this and they find out that Samsung was like, “Oh man these phones blow up but you know what? We have to rush this out there because iPhone 7 is being put on the market too.”

Jared Richards: That’s when things get really interesting.

Jordan Flake: Does that come in under the class action side? Now we’d be talking about punitive damages right? Does that come in under the class action side or the personal side or possibly both?

Jared Richards:  Both. What’s going to happen is if Samsung actually knew that their product was dangerous before they shipped it out.

Jordan Flake: Yeah Samsung. They probably didn’t know which just my guess is.

Jared Richards:  We have no idea. Samsung, please don’t sue us we have no idea.

Jordan Flake:      Don’t send your people out to us because we don’t think you were witting there like, “Oh one in every hundred blows up.”

Jared Richards:  You’re giving that, I’m just saying I have no idea. I’m not implying they did, I’m not implying they didn’t. I have no basis upon which to form an opinion. I’m not forming an opinion. Let’s say there’s a magic document, the damning email, the magic bullet that you have one of the designers sent a memo over to a vice president that said, “Warning, we’re not so sure about this.” The vice president got the memo and it went out anyway. Then we’re talking about punitive damages and punitive damages are going to apply at all the different levels.

Jordan Flake: All the way, everywhere.

Jared Richards: Well every case the judge makes the determination of whether punitive damages are appropriate in this case. In the class action where everybody has lost, I mean what is the Note it’s like $800? Everybody’s lost an expensive $800 device either because it’s blown up or because it’s not worthy, fit, safe to keep in your pocket so they have to get a new phone. I don’t know, did they sell a million of these? I don’t know how many they sold. You look at the judge and say, “Your honor, they’ve caused $800 million of property damage by selling unfit phones and they knew about it and they sent it out for profit anyway.” The punitive damages there may be very large. Every judge is going to make the determination whether punies are going to be appropriate in their case. If you have somebody who lost a hand, again I don’t know how explosive these explosions are, but if somebody lost a hand or lost the use of their hand because it was so burnt, then that person might also very justifiably go after punitive damages against the company.

It’s possible there would come a point where a judge would say, “Okay the purpose of punitive damages is never to award the person who’s been hurt. It’s only meant to send a message.” There’s already been so many millions of dollars in punitive awards against this company, guys message has been sent. We’re not going to find punitive damages appropriate in this case. The plaintiff only has so much room to complain because the punitive damages, although the plaintiff is the one that gets the money. They’re never really his, it was for the purpose of teaching a lesson and to prevent other people from doing the same thing.

Jordan Flake: Sure that makes perfect sense. I think that gives us a good rundown on obviously if you have a products liability situation you can probably easily tell if Jared’s the right guy to call. If you have something like that pop up let us know. In the meantime, as always, we’re very interested to hear your thoughts on this. Let us know if you have a different take on this or if you think the cell phone companies need to be treated differently when they have this type of situation come up. Leave us a message and let us know. Thanks so much for joining Clearcast. We really appreciate it.

Jared Richards:  Thank you.

 

dog bite, las vegas, nevada

Do the Dog Bite Laws in Nevada Need to Change?

Hello and welcome to Episode 2 of ClearCast!

We are sure you have heard about the horrific story of the child in Las Vegas that was killed by a pit bull. The fact that the dog had a previous violent incident has many folks in the Valley upset1)and not unreasonably.

In turn, two of our partners sat down for a few minutes to discuss the current state of the dog bite laws in Nevada.

Good information for all Nevada families!

Thanks for watching.

Analyzing the Current State of Nevada’s Dog Bite Laws

Transcript:

Jordan Flake: Hi, I’m Jordan Flake, and this is Attorney Jared Richards. His is a personal injury attorney. Welcome to today’s Clearcast. We’re talking about a really sad event that occurred just very recently here in Las Vegas. Imagine this scenario: A nine-year-old boy was going to visit his friend’s house. As soon as he showed up at the door, the owner’s pit bull jumped out of the house and attacked the child, a nine-year-old, and ended up killing him. There was a fatality involved with the pit bull.

We brought Jared on today because he’s a personal injury attorney, and he knows a lot about what we would colloquially refer to as dog bite law.

Let’s talk about this for a second here. Just kind of, let’s start really broad and general. Every time a dog bites a person, is the dog owner liable or how does that how does the law kind of even start to work on this? Before we even get to the fatality, if you’re just jogging along and somebody else is jogging with their dog the opposite direction, and that dog bites your ankle?

Jared Richards: Right. First of all, tragic, tragic occurrence, and our heart goes out to the family of the boy. In general, we don’t have any specific statutes that address the negligence aspect of dog bite liability. We have some criminal statutes, but it’s not for general negligence, which means we just go under general negligence law which we call just General Negligence Common Law.

Jordan Flake: There is not some statute that says, “This is dog bite law, NRS1774 in Nevada. There is just we go under what happened in previous cases?

Jared Richards: Right. Kind of.

Jordan Flake: Okay.

Jared Richards: There is a criminal statute, and if you violate the criminal statute then you automatically are going to be liable for damages that are done when you violate the criminal statute. You don’t have to violate the criminal statue …

Jordan Flake: In order to be held …

Jared Richards: In order to be held responsible.

Jordan Flake: Okay.

Jared Richards: Right, but if you violate the criminal statue your [inaudible 00:02:16].

Jordan Flake: What is …?

Jared Richards: What it is is everybody has the duty to act as a reasonably safe and prudent person. It’s my duty, it’s your duty, it’s everybody’s duty at all times.

Jordan Flake: Which is why we can’t drive recklessly.

Jared Richards: That’s why we can’t drive recklessly, we can’t drive drunk, we can’t drive distracted. We have to follow the basic safety rules of society as a reasonably prudent, safe person would do. Now, if we breach that duty and as a result of us breaching that duty somebody gets hurt then we’re on the hook for the damage that we’ve caused.

In the case of a dog the question is going to be up to the jury of what would a reasonably prudent and safe person, as an owner, have done in that situation?

This is where we get into questions about whether the one bite rule would apply or not? The one bite rule is a traditional common law doctrine where the owner isn’t going to be responsible until the animal has actually attacked somebody at least once before because they don’t know that the animal is dangerous.

I don’t know that would actually apply here. What’s really a jury is going to at and say was there sufficient notice to this particular owner that this particular dog was dangerous?

Jordan Flake: Just so everyone knows out there, the background also on this is that that dog was previously cited for attacking another dog.

Jared Richards: Right.

Jordan Flake: The question is, does that constitute sufficient notice so that the owner of the dog would have said, “You know what if a guest is coming to my home or if the front door is open and we’re just dealing with the screen door I better make sure this pit bull is restrained because somebody could come to the door and freak my dog out.”

Jared Richards: If you’re the person who owns the dog or if you’re the insurance company, like the homeowner’s insurance that’s backing up the dog, you’ve got to be careful about that because you’re going to have a lot of juries out there that might think that. If it’s already attacked another animal then it might attack a human. But, there might be juries that think the other way around. It really is going to depend on what the ultimate juries believe. What they think was proper notice to the owner that this was a potentially dangerous animal.

Now, the criminal statute is a little bit different. The criminal statue defines animals under two different varieties, under dangerous and vicious. Dangerous means that when it’s provoked it’s going to get defensive. Vicious means …

Jordan Flake: It goes out looking for trouble.

Jared Richards: Yeah, it goes out looking for trouble. You don’t need to provoke it. Once it’s been either cited as a vicious animal or you observed it be a vicious animal and you’ve seen it go out and bite then you have seven days, you can’t transfer it and you have seven days to get rid of it. If you don’t do that and somebody gets hurt then you’ve committed a misdemeanor. You’ve actually violated criminal law and you are, what we call, negligent to per se. You are just … The law’s going to assume that you’ve breached it.

Jordan Flake: That’s if they’re vicious?

Jared Richards: If the dog is vicious.

Jordan Flake: It seems, kind of, actually light because if you know your dog’s basically a weapon …

Jared Richards: Yeah, and that makes sense. If you’ve gone to the point where you’re actually committing misdemeanors then you’re going to be held viable. You don’t have to actually get to the point of committing the misdemeanor to be held liable. You don’t have to know that you’re dog is vicious. You have to know that the dog is vicious before you get criminally cited. To be civilly liable all you have to know is …

Jordan Flake: The dog is dangerous.

Jared Richards: You have to act as a reasonably sane person would act.

Jordan Flake: It’s interesting, the records show in Clark County that there’s been like 154 complaints made against dogs and only nine have been characterized as dangerous of those 154 that we kept records of and zero have been classified as vicious. I think it’s a pretty rare, apparently, a pretty rare classification.

Jared Richards: That’s interesting. Does that mean that there just aren’t that many vicious animals out there or …

Jordan Flake: Do the standards need to change to where …

Jared Richards: Or do the people who are enforcing the standards just not actually enforce them?

Jordan Flake: Right and that’s going to be the issue going forward here is people are going to look at this case and they’re going to say, “Well, what went wrong? This dog was already cited as having bit another dog and we have a …” The thing that we have here is a deceased child. That’s a total tragedy.

Jared Richards: Right, that kid is dead.

Jordan Flake: It’s just … When I heard about this story I was just shocked. He’s nine. He’s a nine-year-old kid killed by a dog.

Jared Richards: What’s interesting is that for a while there was a movement, again in various states, when you have a vicious breed of animal like a pit bull, an ultra-aggressive breed of animal or at least the public might perceive as ultra-aggressive that the owner is just going to be assumed to be already on notice that this is a dangerous animal and so they’re going to be liable in tort the first time the thing attacks because they’re going to assume they’re already on notice.

Jordan Flake: You buy a pit bull you know you’re buying a pit bull and you know what you’re doing.

Jared Richards: There’s been a counter movement in the past couple of years where you’ve had certain states that pass anti-discrimination laws against breeds of animals. I know that Nevada has also implemented that to a certain extent in the criminal statue. It does make you wonder how that would play in the tort. Can a jury still assume that, I don’t know if you buy a Rottweiler or you buy a pit bull, you buy a mountain lion, that at some point you have notice that the animal you bought does pose a danger to others just because of it’s breed.

Jordan Flake: It’s very, very interesting and I think very fertile for academic discussion is it’s obviously very unethical to look at race in human beings as a measure of whether or not there’s a potential for them to a commit a crime.

Jared Richards: We tend to anthropomorphize, I’m going to screw up the word, these animals and although … Listen, I like animals too. I like dogs. They have feelings too. However …

Jordan Flake: The stats don’t like. Pit bulls kill humans. They do. I just looked at the stats. It’s incredible. Pit bulls are the ones that … It’s overwhelmingly 70% children but they’re being by a lot of pit bulls and …

Jared Richards: Significantly more pit bulls have killed …

Jordan Flake: Than Golden Retrievers.

Jared Richards: Or Poodles.

Jordan Flake: Or Poodles or Chihuahuas. It turns out there …

Jared Richards: Not that many Chihuahua deaths.

Jordan Flake: Okay, so maybe last point here, the kid’s name was Derion Stevenson. If the Stevenson’s were to come into your office and talk to you about this case and they said, “Hey listen, we’re going throw unimaginable pain and suffering. We have his funeral costs and it’s just been horrible for us. What are our prospects for recovering in this case. What insurances are out there?”

Jared Richards: That’s an interesting question because the natural insurance that you would assume would apply would be the homeowner’s insurance. Most people in the State of Nevada or the United States of the world don’t really have enough assets to cover an injury like this. My goodness, the boy is dead. Unless you’re Wal-Mart you’re probably not going to have the kind of money to really truly compensate this family, not that money can. You won’t have the kind of money to truly compensate.

What you’d look at first is the homeowner’s insurance. The problem you’re going to have and something you have to look at is there are certain homeowner’s insurances that specifically exclude coverage of what the insurance company defines as vicious animals.

Jordan Flake: Which may be different that the state definition, by the way.

Jared Richards: Right. If I’m going to rely on statistics I’m probably going to rely on the statistics of insurance companies excluding then the state because …

Jordan Flake: Absolutely.

Jared Richards: Insurance companies are, sorry, cold heart less data driven beasts where this state …

Jordan Flake: The odd makers and actuaries know their stuff.

Jared Richards: The state does as well.

Jordan Flake: The state, yeah, a lot of interest and so forth.

Jared Richards: A lot of political interest going on. The first danger is is this specifically excluded by the insurance policy and if it is, and this is research I haven’t done, is it even allowed to exclude this then there may be additional umbrella insurance. After that you need to make the decision, do you go after the actual personal assets of the family and if you did would they just file bankruptcy? At that point even though you’ve lost a child, which is horrible, trying to take away all the property of somebody else also ruins their life. It may not make your life better. Those are all things that are difficult to weigh and sometimes it’s right and sometimes it’s not. Those are all things that that person, they need an attorney. They just need one.

Jordan Flake: Absolutely.

Jared Richards: Whatever attorney they go to they should go to one that has experience in personal injury, preferably experience in animal tort and that is compassionate enough they could actually try to walk them through some of these very, very difficult choices and issues that they’re going to have to deal with.

Jordan Flake: Absolutely. Thank you for joining us for Clearcast. Let’s just do a few little takeaways.

First of all, Jared is a great personal injury attorney. He’s my partner but still he’s a great personal injury attorney. If anybody out there has a question about a dog bite case or some other personal injury please seek his expertise. He will do a free consultation.

Second, is we would love to hear what you think. If you could chime in on the blog or on Twitter or Facebook and let us know what you think about pit bulls, about whether or not the laws are too lax, whether or not there’s any justice in this situation, what you know … You may know something about this story or have an opinion that we don’t. We love going back and reading over those comments.

Three, just thank you so much for joining us for Clearcast and we’ll hope to see you here in the future.

Thanks so much.

Jared Richards: Thank you.

 

Footnotes   [ + ]

1. and not unreasonably
class action

Podcast Preview: Why Are Class Action Lawsuits Permitted?

Earlier this week, Greg Hamblin hosted two of our partners, Jordan Flake and Jared Richards on his new podcastOn The Docket.

We had a great time! The whole episode will be a treat.

..The fun part about recording a podcast with one, Jared Richards, Esq., is that in the midsts of a irreverent conversation about law in the news, there will be a two minutes window where he explains, clearly and succinctly, why the legal system permits class action lawsuits:

 

 

Why Are There Class Action Lawsuits?

Transcript:

Greg Hamblin:   First question, in the Federal Appeals Court on Thursday, throughout a 7.25 billion antitrust settlement reached by Visa and MasterCard with millions of retailers that had accused the card networks of doing what?

Jared Richards:  Overbilling of some sort. Charging too large of transactions fees?

Greg Hamblin:   Yes, that’s it exactly. More specifically that they had fixed their fees in a monopolistic way. The Appeals Court said that the accord was unfair to retailers that stood to receive little or no benefit at all and decertified the case as a case action. I don’t know what that means.

Jared Richards:  Wow.

Greg Hamblin:   What’s wow? What does it mean when it’s decertified as a class action?

class action

Jared Richards:  It’s problematic because the idea of the class action is that the individual cases are too small to ever make it economically viable to bring it to court because any given lawsuit, even like the extreme low end lawsuits, are going to cost $10,000.

A big one like this would cost millions and so you bring everybody together and sue them together. You sue with everybody together it’s a class.

What you do is, because it’s infeasible, where it’s very difficult to go out and actually get everybody to sign up, you just have the court declare that everybody who falls in this class, meaning all merchants, will already be parties, will already be plaintiffs and they have to opt out, which is generally the way it goes.

It can go the other way but generally this way and that you have to write a letter saying that I don’t want to be part of it or maybe you’ll get mail saying I do want to be part of it.

If he’s decertified in class, what he’s saying is that every merchant, their damages are so different that they don’t really fit well as a class. While that may be true that Walmart’s damages are going to be significantly different than the florist that we talked about earlier, …

Greg Hamblin:   Jack Benny‘s Florist.

Jared Richards:  … Jack Benny’s Florist, the problem is that Jack Benny’s Florist is never going to be able to hire a lawyer to make this make economic sense. That’s why you want it to be a class.

Greg Hamblin:   I see.

Jared Richards:  That’s really difficult for the smaller guys. Even if they wouldn’t get a whole lot of benefit that’s probably also because they didn’t get a whole lot of damage.

 

mass tort

Podcast Preview: Mass Tort vs. Class Action

 

Podcast Preview: The Difference Between a Mass Tort and a Class Action

Transcript:

Jordan Flake:      Seriously, will you get into that for just one quick second? If a state, or a city, has an engineer, and a water company that knows, or should have known … ?

Jared Richards:  Sure. Listen, unless there’s some other law, a state law or federal law that I’m not aware of, that would block the person, just under general principles of tort, yes, absolutely. If somebody is poisoning you, you could go sue them.

Jordan Flake:      This would probably … An attorney actually pursuing this would probably want to create a class, and try to certify a class, and have it be done as a class action, because we have various injured parties here …

Jared Richards:  Yes, various injured parties. The difficulty of a class is trying to show that all of the parties were hurt in the same way; maybe you can, maybe you can’t. If you can’t show that they were all hurt in the same way, you would bring them individually as a mass tort, as opposed to class.

Jordan Flake:      Oh, okay … A mass tort is different from a class because …

 

mass tort

 

Jared Richards:  A mass tort is different from a class because, in a class …

Greg Hamblin:   The damages were the same?

Jared Richards:  In the class you’re going to have, the damages are going to be similar through all of the members of the class, and you’re going to have one or two class representatives that are going to speak for the class, and make decisions for the class, where in a mass tort, you have a whole bunch of plaintiffs that are thrown in.

Jordan Flake:      Where some people are like, “I’ve got ingrown toenails!” and somebody else is like, “I got cancer!” and they each get according to their damages in a mass tort…

Jared Richards:  That’s why, in most of the drug product defect cases, you’re going to find that they’re not class actions, they are mass torts … But when a company screws over all of their people by five dollars, based on subscriptions – That is going to be a class action.

Jordan Flake:      Unity or similarity of damages across all the injured parties.

 

new podcast preview

New Podcast Clip From Our Second Episode

 

Earlier today, Greg Hamblin was kind enough to host two of our partners, Jordan Flake and Jared Richards on his new podcastOn The Docket.

We had a great time! We can’t wait to hear the whole episode..

new podcast

 

In the clip above, Mr. Richards and Mr. Flake were asked by Greg to explain how person could leave thousands upon thousands of dollars for a pet. Here is a great example from Britain1)They use common law too! Where do you think we got it from?

Amoungst the new podcast fun, Mr. Richards and Mr. Flake explain what is necessary for person to bequeath a gift to a pet.

new podcast episode

New Podcast Transcript:

Greg Hamblin:   Could you do that kind of thing with an estate?

Jared Richards:  I don’t know anything about estate planning. It is your money, and you can literally do whatever you want.

Greg Hamblin:   It’s a Disney movie waiting to happen.

Jared Richards:  I worked for a poodle named Shotzel once.

Greg Hamblin:   Yes. Did you really?

Jordan Flake:      Yes. I did.

Jared Richards:  Yes, the Hoolihan.

Jared Richards:  The Hoolihan Estate, yes.

Jordan Flake:      The Hoolihan Estate. We all worked for Shotzel. I hope Shotzel is doing okay.

Jared Richards:  Shotzel died 2 weeks after his master.

Jordan Flake:      Oh darn, oh okay. The anxiety of meeting up with Shotzel’s demands is no longer resting on your shoulders. Seriously.

Jared Richards:  All of the most premium of dog bones.

Jordan Flake:      With Prince it’s just interesting maybe he probably didn’t expect to die as young as he did and maybe he just thought this stuff will take care of itself. You just contrast the $300 million of estate assets versus the relatively small amount of money that would have gone to an attorney. I mean it would have been expensive, no doubt, to do the estate planning. It’s really crazy.

Jared Richards:  Yeah, if I’m going to spend part, leave it all to the poodle.

Greg Hamblin:   Leave it all to the poodle?

Jordan Flake:      Leave it all to the poodle and the poodle’s descendants and just call it good, and have them in a big mansion and create a reality TV show about their lives. It’s not that hard. If we have any listeners who have pets who they would like to exalt and publicize, and then you can definite put what we call pet trust provisions in the estate planning.

Greg Hamblin:   Oh my God.

Jared Richards:  Or, if there are any NBC or CBS executives listening, we have an idea.

Jared Richards:  Right, we have an idea.

Jordan Flake: It just struck some serious goals there.

Jared Richards:  Absolutely.

Jordan Flake:      What the provisions generally say-

Greg Hamblin:   Pet lawyer on TLC.

Jordan Flake:      Pet lawyer.

Jared Richards:  If your pet needs a trust.

Jordan Flake:      No, I already am a pet lawyer. I had a client come in, a very nice woman. She was a pharmacist and she has a life insurance policy for a quarter million dollars and she left 100% of the life insurance policy to her 12 cats that she currently has; or, and we made it flexible because the number fluctuates apparently, to whatever companion animals are currently living with her at the time she passes away.

She was very grateful to have that piece of mind. The reality is, it’s her money. If she wants to use it to benefit her pets then that’s well within-

Greg Hamblin:   What are the cats going to do with the money?

Jared Richards:  I’m sure a little catnip , all this…

Greg Hamblin:   It’s just going to ruin them. They’re just going to get on drugs. They’re not going to go to college.

Jared Richards:  Everybody needs a response.

Jordan Flake:      Therein is the genius of the TV show. Look at all the nice clothes they’re buying. Look what they do with their, I’m just an heir lifestyle. “I’m just an heir” to this great fortune, you know? Some will make the videos and bad choices. We talked about that.

Greg Hamblin:   We talked about it. We have these sensitive moments that really connect with the family viewers. Forget Paris Hilton.

Jared Richards:  If you do want to do that though you do have to be careful and set it up properly. Just throwing it into your will saying I want to leave everything to my cat.

Greg Hamblin:   It doesn’t work.

Greg Hamblin:   No. It has to be in a trust and you have to address that problem.

Greg Hamblin:   I’m assuming that’s because you actually have a human being who takes care of the pets?

Jared Richards:  Yes.

Jordan Flake:      That’s right, that’s right.

Jordan Flake:      You have a trustee in that situation and you tell the trustee, listen this is how the money is to be used. You’ll want to compensate the trustee and our trusts that we use generally have provisions for compensating the trustee, because at some point the trustee is going to say, “You know what? I think I’d rather spend this money on myself.”

Greg Hamblin:   Right.

Jordan Flake:      This is a good candidate-

Greg Hamblin:   He won’t be satisfied with the irrevocable living love of the cat.

Jared Richards:  Oddly enough, it’s very, very few people will sue on behalf of the cats.

Jordan Flake:      That’s exactly why I was going to say either a co-trustee or a trust protector, or maybe designating an agent to benefit the cats while the trustee is somebody who manages the money. Those things can give you an idea because usually well, you know who comes along and makes sure the provisions of the trust are being enforced, as Jared hinted at, would be the beneficiaries. As much as the cats are then enjoying their wealth, they’re not going to be in a state of mind to bring a lawsuit against the trustee if they’re fulfilling their obligations.

Jared Richards:  Or if they’re fulfilling other things like if Miss Cruela DeVille were the trustee.

Jordan Flake:      Right, exactly.

Greg Hamblin:   Coming in 2017 on TLC. Oh my goodness…

 

Stay tuned..

In case you missed Episode 1..

Footnotes   [ + ]

1. They use common law too! Where do you think we got it from?
podcast

Podcast Preview!

 

Earlier today, Greg Hamblin was kind enough to host two of our partners, Jordan Flake and Jared Richards on his podcast.

Greg was very generous in allowing me to film the podcast session1)and we appreciate it very much.

podcast

 

In the clip above, Mr. Richards was asked by Greg to explain how an East Cleveland man could be awarded a 22 million dollar verdict from a jury.

Specifically, Mr. Richards explains the difference between compensatory and punitive damages and how they are related.

 

Podcast Transcript:

As far as the punitive element, you have an issue because generally punitive elements need to be somewhat in line with the compensatory element. For those people that are listening that don’t know, compensatory damages is just to reimburse the person for what was taken from them.

Punitive damages has nothing to do with compensating, reimbursing, awarding the victim. It has everything to do with punishing the person who has abused the victim. It has to be large enough to sting.

Listen, most cops out there are good cops.podcast

 

They follow the rules.

They do the right thing.

I can’t think of any justification for locking somebody in a closet for four days. I don’t care what they did, that’s not due process, certainly not at a traffic stop.

Again, I don’t care what you did, that’s not due process, that’s not allowed.

That kind of police abuse needs to be addressed and this is the proper way to address it. Whether it’s $12 million or some other number, I don’t know, but unless you have a high compensatory, then the punitive has to be somewhat in line, generally like a multiple of three in most cases.

It’s the maximum you can award.

If you don’t have the $10 million component, or at least like a $4 million component, for the compensatory, you can’t get to the $12 million punitive. It doesn’t make that analysis fair or rational, but it does allow the punitive to stand.

 

Stay tuned..

Footnotes   [ + ]

1. and we appreciate it very much

What You Should Consider if You Are Injured by a Product Defect

 

 

Considerations for a Product Defect Claim

Transcript:

Hi. I’m Jared Richards. I’m one of the counselors at Clear Counsel Law Group. One of our readers has asked what they should do if they feel like they have a product defect claim. Product defect claims can be complex. They can be very complex. They can be expensive to litigate.

The first thing you need to do is you need to call an attorney. You need to call an attorney who has experience in product defect claims. Don’t just pick anybody, but somebody with actual experience in this area.

 

product defect, personal injury, las vegas, nevada

 

Two, you need to make sure that the product is preserved. You need to make sure that you keep it in the exact same state it was at the time of the injury. If you alter it, if you change it, you can have difficulty proving your claim. Now, really the most important thing, of course, in any type of injury is make sure that you get medical care.

That’s the most important thing. Your health is the most important aspect of any sort of claim just because it’s the most important aspect of your life.

Make sure you go see a doctor. Make sure that you get the care that you need. Call an attorney that has experience, preserve the product, and then let your attorney take it from there.