SCOTUSblog on Legal Maneuvering in Same Sex Marriage Proceedings

Tom Goldstein has a post at SCOTUSblog entitled “Lawyers as heroes or goats in fight over same-sex marriage.” He talks about how strategic decisions by lawyers in the same sex marriage lawsuits could have ramifications for the rights of gay people for the next couple of decades.

I’m a proponent of marriage equality, and I’m hopeful that the Supreme Court will side with the bulk of Circuit Courts that bans on marriage equality are unconstitutional. But, my opinion as an armchair lawyer is that the more strategically sound course of action would have been to take the 6th Circuit panel opinion – which upheld same sex marriage bans – to the 6th Circuit en banc. First of all, there is a decent chance the full court would have reversed the panel. Secondly, I think time is on the side of marriage equality proponents. In my opinion, the longer it takes to get to the Supreme Court, the more likely a favorable outcome.

But, I suppose it’s easy for me to sit back and advocate for a more gradual pace. There were no legal impediments to me marrying the person I love.

Vaccination Debate is a Proxy War about Science and Communal Obligations

The Incidental Economist has a couple of posts about how ridiculing parents who don’t vaccinate their kids is unhelpful:

Aaron Carroll: Could we stop asking politicians gotcha questions about measles please? And anyone else for that matter?

Bill Gardner: Enough hating on anti-vaccination parents, please.

They’re probably right in terms of the narrow question of how best to prevent outbreaks of diseases for which there are vaccinations. The background is a measles outbreak that seems to have been exacerbated by people who believed junk science or ignored science altogether about the relative dangers of vaccines versus real or imagined side effects of the vaccines. Ridicule probably makes such parents entrench themselves and become even more staunchly against vaccination. It’s a form of tribalism.

What gives this debate more juice, in my opinion, is that it’s not just about vaccinations. It’s about the proper role of science in policy making and about the proper limits of individual liberty in policy making. Anti-intellectualism is nothing new in American politics — a politician won’t go broke championing “common sense” over those eggheads in their ivory tower. What seems a little newer – and this might just be my limited knowledge – is a rhetorical commitment to individual liberty that overwhelms any notion that an individual might owe any sort of duty to the community. An anti-intellectual commitment to liberty at all costs generally squares with what we’ve seen out of the Tea Party movement. But with the anti-vaxxers, there seems to be a twist. These are, often enough, suburban, Oprah-watching moms. A sense that “they ought to know better” might add more intensity to the response.

So, I think what you’re seeing in these responses is not frustration limited to the question of how best to stop the spread of measles. It’s frustration with what seems like a selfish, deliberately obtuse world view that persists even where the evidence is clear and even where the benefit to the community so vastly outweighs the actual risk to the individual. “We had these horrible, horrible diseases licked and you people are screwing it up for everybody for almost no reason at all.”

Update: Talking Points Memo has A Brief History of How People Got Duped by the Anti-Vaccination Myth.

Update 2: This column by Chris Mooney about hostility between climate change camps seems somewhat related. It’s tribal:

The new study, by a group of Australian psychologists and social scientists, examines the clash between climate adherents and so-called “skeptics” as an “intergroup conflict” (a psychological buzzword) driven, in significant part, by anger at those on the other side.

Or to put it another way, the debate is a cultural clash between two groups with divergent social identities who define those identities, in part, by criticizing those on the other side.

“Believers and sceptics [sic] are united, but only insofar as they are united in opposition to each other,” notes the paper, whose lead author is Ana-Maria Bliuc of Monash University in Victoria.
. . .
One key aspect of in-group/out-group behavior is called “outgroup derogation” — negativity towards those who are members of the opposing group — and Postmes sees it here. “People tend to talk badly about the outgroup as a way of expressing solidarity with their own side,” writes Postmes.

Of Trolls and Monkeys

Amy mentioned a This American Life podcast she had heard about an Internet troll who was particularly vicious to Lindy West, digging up information about her dead father, creating a Twitter account with his picture, and using it to harass her. So, I took notice when a related column by Ms. West in the Guardian came across my news feed. The short version is that she wrote a column telling how much that incident had hurt. The troll wrote her an email saying he was sorry and had made a donation in her dad’s name to a cancer foundation. When GamerGate got rolling, she wondered if she could gain insight from him about why men troll women online, and it turned into the This American Life episode.

In the Guardian column, she says:

We talked for two-and-a-half hours. He was shockingly self-aware. He told me that he didn’t hate me because of rape jokes – the timing was just a coincidence – he hated me because, to put it simply, I don’t hate myself. Hearing him explain his choices in his own words, in his own voice, was heartbreaking and fascinating. He said that, at the time, he felt fat, unloved, “passionless” and purposeless. For some reason, he found it “easy” to take that out on women online.

I asked why. What made women easy targets? Why was it so satisfying to hurt us? Why didn’t he automatically see us as human beings? For all his self-reflection, that’s the one thing he never managed to articulate – how anger at one woman translated into hatred of women in general. Why, when men hate themselves, it’s women who take the beatings.

Maybe I’m off base, but I think the dynamic providing an explanation of sorts is described in Robert Heinlein’s Stranger in a Strange Land. The protagonist is a human, Mike, who was raised by Martians. One of the things he doesn’t understand, doesn’t “grok,” is laughter. Then, one day at the zoo, it all becomes clear to him:

When he had first seen a zoo, Mike had been much upset; Jill had been forced to order him to wait and grok, as be had been about to take immediate action to free all the animals. He had conceded presently, under her arguments – that most of these animals could not stay alive free in the climate and environment where he proposed to turn them loose, that a zoo was a nest … of a sort. He had followed this first experience with many hours of withdrawal, after which he never again threatened to remove all the bars and glass and grills. He explained to Jill that the bars were to keep peopIe out at least as much as to keep the animals in, which he had failed to grok at first. After that Mike never missed a zoo wherever they went.

But today even the unmitigated misanthropy of the camels could not shake Mike’s moodiness; he looked at them without smiling. Nor did the monkeys and apes cheer him up. They stood for quite a while in front of a cage containing a large family of capuchins, watching them eat, sleep, court, nurse, groom and swarm aimlessly around the cage, while Jill surreptitiously tossed them peanuts despite “No Feeding” signs.

She tossed one to a medium sized monkey; before he could eat it a much larger male was on him and not only stole his peanut but gave him a beating, then left. The little fellow made no attempt to pursue his tormentor; be squatted at the scene of the crime, pounded his knuckles against the concrete floor, and chattered his helpless rage. Mike watched it solemnly. Suddenly the mistreated monkey rushed to the side of the cage, picked a monkey still smaller, bowled it over and gave it a drubbing worse than the one he had suffered – after which he seemed quite relaxed. The third monk crawled away, still whimpering, and found shelter in the arm of a female who had a still smaller one, a baby, on her back. The other monkeys paid no attention to any of it.

Mike threw back his head and laughed – went on laughing, loudly and uncontrollably. He gasped for breath, tears came from his eyes; he started to tremble and sink to the floor, still laughing.
. . .
I’ve found out why people laugh. They laugh because it hurts so much … because it’s the only thing that’ll make it stop hurting.”

Jill looked puzzled. “Maybe I’m the one who isn’t people. I don’t understand.”

“Ah, but you are people, little she ape. You grok it so automatically that you don’t have to think about it. Because you grew up with people. But I didn’t. I’ve been like a puppy raised apart from other dogs, who couldn’t be like his masters and had never learned how to be a dog. So I had to be taught. Brother Mahmoud taught me, Jubal taught me, lots of people taught me … and you taught me most of all. Today I got my diploma – and I laughed. That poor little monkey.”

“Which one, dear? I thought that big one was just mean … and the one I flipped the peanut to turned out to be just as mean. There certainly wasn’t anything funny.”

“Jill, Jill my darling! Too much Martian has rubbed off on you. Of course it wasn’t funny – it was tragic. That’s why I had to laugh. I looked at a cage full of monkeys and suddenly I saw all the mean and cruel and utterly unexplainable things I’ve seen and heard and read about in the time I’ve been with my own people, and suddenly it hurt so much I found myself laughing.”

I used to subscribe to Heinlein’s theory of laughter — that it was a response to an observed wrongness (e.g. the pratfall). After having kids and watching them, that’s an incomplete observation about humor. There is also laughter that springs from nothing more than joy. But that’s an aside — the troll picking on women looks a lot to me like the smaller male who got robbed and beaten by the bigger male taking out his frustrations on the smaller monkey. There tends to be a pecking order and, to mix my metaphors, shit rolls down hill. That women are generally perceived by these trolls as being lower in the pecking order highlights the structural inequities between the genders. Some of this is biological — the average woman is physically smaller than the average man; but the majority is probably cultural — the average woman is conditioned not to fight back as much as the average man. (After all, humans are tool using apes — humans have been endlessly innovative at developing tools to harm one another, regardless of relative size and strength.)

Maybe it’s more complicated than that – but I’d say the “why” is primarily misdirected anger. From the Simpsons:

Anger is what makes America great. But you must find a proper outlet for your rage. Fire a weapon at your television screen. Pick a fight with someone weaker than you. Or, write a threatening letter to a celebrity. So when you go out for a drive, remember to leave your murderous anger where it belongs — at home.

Legislative Tool: Table of Citations

The Indiana General Assembly produces a number of documents that facilitate keeping track of legislative developments. One of them is the “Table of Citations” or “Citations Affected Report” – the one for 2015 is here. It’s a dynamic document that’s updated as the session progresses.

The document provides a list of citations affected by pending legislation – from noncode to Title 1 and all the way through Title 36 of the Indiana Code. For each citation it tells you the number and section of the bill that would affect it, whether the bill would create a new citation or amend it, the proposed effective date of the change, and the last action for the proposed change. One of its primary uses is to help LSA keep track of when multiple bills are going to amend or create the same section or chapter and take steps to make sure some accommodation is made when there is a conflict.

But, if you’re a lobbyist or an observer of the General Assembly with particular areas of concerns, it can help you keep track of legislation in your area. It’s not perfect, but as a general rule, your concerns are going to be grouped in particular areas of the Indiana Code. For example, my personal interests tend to be on civil litigation and local government. That means my hot spots are probably going to be Titles 5, 33, 34, and 36. Additionally, there is a ton of garbage filed that’s never going to see the light of day. I enjoy highlighting those items on my blog, but if you’re really concerned about what will become public policy, your real concern will be the bills that are actually moving. So, if I go through the citations affected report and identify those bills in Titles 5, 33, 34, and 36 that are on something other than first reading, I now have a better idea of which legislation to keep my eye on.

SB 306 – Duty of Care to Trespassers

Sen. Bray has introduced SB 306 which would specify a limited duty of care to trespassers on one’s property. Basically, a landowner would have to refrain from willful and wanton behavior toward a trespasser the landowner knows about. Otherwise, the landowner would have no duty of care toward the trespasser and if the trespasser got injured while on the property then that’s his tough luck. There is an exception that would make landowners liable under some circumstances for injuries sustained by trespassing children if the cause of the injury was what amounts to an attractive nuisances to children.

I thought the duty of care used in SB 306 is pretty much the same as what the court’s have articulated with respect to trespassers. “The duty owed to a trespasser is the duty merely to refrain from wantonly or willfully injuring him or her after discovering his or her presence.” Yates v. Johnson County, 888 N.E. 2d 842, 848-849 (Ind. Ct. App. 2008). So, I’m not sure what this bill is attempting to remedy. Maybe it’s the definition of “trespasser” as someone who “enters or remains on real property possessed by another person without: (1) a right to enter or remain on the real property; (2) the consent of the other person; or (3) an actual or implied invitation from the other person.” But, at a glance, that looks a lot like what I’ve seen for the definition of trespasser in the case law.

Legal Notices: Online, Newspaper, or Both?

The Indiana Law Blog has a post highlighting an editorial (note: paywall) from the Marion Chronicle Tribune about how local government should have to publish their budgets on the newspaper because putting them online wasn’t sufficient.

Says the Marion Chronicle-Tribune:

It is stunning how little commitment there seems to be to government transparency in Indiana.

There is apparently a similar effort afoot with tax sales to only publish a short notice telling people what website to visit to see the property description or parcel information.

I couldn’t read the entire editorial because it was behind a pay wall. The newspaper urges caution because electronic notices are malleable and not a permanent record. True enough – but you could surmount that issue without publication by requiring an official hard copy to be filed with the Clerk’s office or Recorder’s office or other repository of official documents. The other argument the newspaper makes is that this is done to make officials’ lives easier by avoiding scrutiny. I’m not sure how that follows if the notices are, in fact, available online. Are the watch dogs who are going to hold public officials accountable the sorts of people who will pore over a newspaper version of the notices but won’t go to a website? I’m skeptical.

Now, maybe the public is more aware of the legal notices in the small print at the back of the newspaper than the notice on a government website. The fact is that publication of legal notices in newspapers is a real expense to taxpayers. And, it’s hard to avoid observing that the newspaper may have a stake in this issue that goes beyond mere public interest. Maybe the part of the editorial that discusses the Marion Chronicle Tribune’s income from legal notices is behind its pay wall. The newspaper is, itself, making a choice between informing the public and its own fiscal interests. So, while the newspaper’s arguments are worth considering, I have a hard time believing the editorial board is actually “stunned” by the General Assembly’s efforts to strike a similar balance.

SB 354 – Proceedings Supplemental

Sen. Steele’s SB 354 the Senate on Third Reading. The bill concerns supplemental proceedings a judgment creditor can initiate when a judgment debtor fails to pay the judgment. It says the creditor can get an order requiring the judgment debtor to appear in court and testify about his or her income and assets once every six months or more frequently if the judgment creditor believes the judgment debtor’s circumstances have changed.

I don’t know for sure, but I think this is in response to language in some Court of Appeals decisions that can be read as requiring a creditor know about a change in a debtor’s financial circumstances before the creditor can bring the debtor back to court for a proceeding supplemental. Kirk v. Monroe County Tire, 585 N.E.2d 1366 (Ind. Ct. App. 1992) cited a legal treatise and an Illinois appellate court for this proposition. Carter v. Grace Whitney Props, 939 N.E.2d 630 (Ind. Ct. App. 2010) cited Kirk for this proposition. Kirk involved a situation where the debtor was bringing the debtor back weekly. There is no doubt that the court should put a stop to that kind of nonsense. Proceedings supplemental are equitable in nature and, therefore, I’d think a court would have the inherent discretion to avoid oppressive hearings. But, requiring the creditor to know the debtor has income or assets before bringing them in to testify about their income or assets is also not reasonable. The point of the proceeding, in many cases, is so that a judgment debtor can come and tell the creditor what has or has not changed about their financial situation.

This six month default rule isn’t a bad idea. I suppose I would request clarification that a proceeding can be continued to a later date (within the six month period) if the court finds that doing so is reasonable. For example, if I ask a debtor how much they have in a bank account and they say they don’t know, it would be reasonable to continue the hearing for a week to allow the judgment debtor to acquire that information and report back under oath.

HB 1192 – No Noneconomic Damages for Uninsured Motorists

HB 1192, introduced by Rep. Mahan, is an interesting concept. It would prohibit insurers from paying out noneconomic damages to uninsured motorists and would immunize other motorists from having to pay noneconomic damages to such motorists. Noneconomic damages refers to such things as pain and suffering, emotional distress, and other nonpecuniary losses. It does not refer to medical expenses, lost wages, or loss of economic potential. “Uninsured motorist” means the owner of a vehicle who doesn’t have the required financial responsibility in place at the time of the accident — whether the individual was operating the vehicle at the time of the accident or not. There are exceptions for kids under 18 and victims of intentional acts or crimes.

Not sure I agree with the legislation, but I understand the premise. Most damage claims are going to be paid, one way or another, by insurance money. Why should someone be permitted to take advantage of the responsible act of another (e.g. paying their insurance premiums) when they didn’t show the same responsibility themselves. They wouldn’t be missing out on “real” losses — medical expenses, lost income, and the like; but only the less easily quantifiable losses like pain and suffering. If the roles were reversed, their victims would get nothing from them (but could recover from their own uninsured motorist coverage if they had it.)

On the other hand, this can also be seen as creating a two tiered system – one for poor people who can’t (or won’t) afford insurance and a different one for people who can. (The retort to this would be that if you can’t afford insurance, then you can’t afford to drive.) I’m guessing the Indiana Trial Lawyers Association is against this one!

SB 549 – Expanded Categorical Eligibility for SNAP Program

Sen. Stoops has introduced SB 549 which would expand access to the Supplemental Nutritional Assistance Program (SNAP) (formerly “food stamps,” I believe) by expanding categorical eligibility without respect to assets. My understanding of this process — which is laughably limited — is that there are people who are eligible for SNAP assistance by virtue of being participants in certain programs (TANF for example). The eligibility for the other program is a proxy for neediness; or perhaps the policy decision has been made that government should support the effectiveness of one program by buttressing it with the other. If the SNAP applicant is a participant in one of these other programs, they are categorically eligible and do not need to particularly demonstrate that their income is below a certain threshold ordinarily necessary to be eligible for SNAP assistance.

Anyway, I guess federal law allows states to expand categorical eligibility. I believe this paper out of Ohio is on point:

The federal food stamp regulations provide some options to states with respect to expanding categorical eligibility for assistance groups who are receiving or authorized to receive TANF or MOE funded benefits and services. States have the authority to determine which of the TANF or MOE funded programs or services are of benefit to the entire household and therefore confer categorical eligibility. States also have the option to determine whether TANF or MOE-funded services that meet TANF purposes 3 or 4 (as long as there is an income eligibility limit up to 200% of the federal poverty level) will confer categorical eligibility to the entire assistance group.

I guess I’d be a little surprised if this General Assembly showed a great deal of interest in expanding the social safety net. There isn’t a fiscal note ready at this point. I suppose there is probably a saving grace in that a lot of the new people who would be categorically eligible would have met the income limitations anyway, and this just streamlines the process.

HB 1584 – Use of Deadly Force, Duty to Retreat

Rep. Porter has introduced HB 1584 concerning the use of deadly force. It strikes the language in current law that says a person has no duty to retreat. The remaining language says that a person is justified in using deadly force where the person reasonably believes such force is necessary to prevent serious bodily injury to themselves or third parties or to prevent or terminate the other person’s entry of the first person’s dwelling, curtilage, or occupied motor vehicle.

The struggle, as always, is to balance the desire to give citizens the latitude they need to defend themselves in an emergency while not, at the same time, sanctioning vigilante justice or extreme violence based more on emotion and ego than on a pressing need to use such force.