Category Archives: Random Opinion

The Guardian:  Decision to deny surgery to obese patients is like ‘racial discrimination’ 

The group said it had taken the decision because it was the “best way of achieving maximum value from the limited resources available”.

No, really, this is a great idea.  Let’s change perfectly legal human behavior ex post, as we say in the law biz, by refusing to treat them when this (did I mention perfectly legal?) behavior requires it, and save a boatload in hospital costs, as well.

  • Injured in a car accident because you weren’t wearing a seat belt?  Before we stitch up your head and set your leg, you’ll have to wait six months and take a driving safety course.
  • Too many G&Ts and now your liver is shot?  We’ll wait til you sober up and then treat you.
  • Gout?  You’ll have to spend six months on a macrobiotic diet before you can even get an appointment.
  • Sports injury?  Seriously, that is all your fault.  Spend six months vegging on the sofa with a book like the good Lord intended, and maybe we’ll see to your torn ACL.
  • Shot by a jealous spouse/lover?  Probably should have thought about that before stepping out on them.  Six months of counseling and we’ll be happy to help you with that gun shot wound.

And the great thing, costsavingswise, is that most of the time, you’ll be dead by the time you are eligible for treatment, which is a huge savings.



Source: Decision to deny surgery to obese patients is like ‘racial discrimination’ | Society | The Guardian

45 C.F.R. § 92.4; or yes, there is a difference between the parties.

For any Bernieite or other lefty grumbling that there’s really no difference between the parties, I hereby present section 92.4 of the implementing regulations of section 1557 of the Patient Protection and Affordable Care Act:

On the basis of sex includes, but is not limited to, discrimination on the basis of pregnancy, false pregnancy, termination of pregnancy, or recovery therefrom, childbirth or related medical conditions, sex stereotyping, and gender identity.

Sex stereotypes means stereotypical notions of masculinity or femininity, including expectations of how individuals represent or communicate their gender to others, such as behavior, clothing, hairstyles, activities, voice, mannerisms, or body characteristics. These stereotypes can include the expectation that individuals will consistently identify with only one gender and that they will act in conformity with the gender-related expressions stereotypically associated with that gender. Sex stereotypes also include gendered expectations related to the appropriate roles of a certain sex.

Boom.  Now go forth and proudly vote for Democrats, up and down the ticket.  Because there is a difference.  A real difference.


The Law Nerd Manifesto, or Email from Thomson Reuters Shows Why We Need Government-Hosted, Boolean-Searchable, Free, Public Access to Caselaw.

We pay a couple thousand dollars a month to Thomson Reuters — owners of the Westlaw database — for the privilege of searching and retrieving decisions by the federal and state judges who are paid from our tax dollars to decide the cases in our public justice system.  Even though these decisions are the backbone of our common law — that is, precedent-based — legal system, We The People don’t have effective access to them without paying the couple-thousand dollars a month for a Westlaw or Lexis subscription.  You could go to a law library and do old fashioned dead-trees book research but, among other things, you’d be reading books published by Thomson Reuters, and you could not remotely afford to purchase these books on your own.   And access to those privately-published, drop-dead-expensive books depends on having access to a law library; they’re not generally available at your average public library.

There are cheaper services, but they are far less comprehensive, so you could never be sure you are searching everything your opponent is or the judge expects you to.  The only publicly available service is PACER which has no full text search function, and charges 10 cents a page to download decisions.  You can only search by case “type” and then just guess which cases have relevant decisions.  There is simply no way it could replace the full-text Boolean search capability of Westlaw or Lexis.

So mostly we just grumble and open a vein each month, while Thomson Reuters and Lexis/Nexis make large piles of money being the gatekeepers of our judicial system.

Then we get an email like this:

To our customers:

As part of our commitment to transparency, I wanted to alert you to some errors related to publishing cases in Westlaw® and our print volumes that we have now corrected.

In March, Thomson Reuters became aware that small portions of text were missing[*] in a number of new cases posted to Westlaw due to the introduction of an upgrade to our PDF conversion process in November 2014.

. . .

Our analysis[**] of the cases found that none of these issues resulted in any change to the meaning of the law. To provide clarity, we are posting examples of the issues, as well as a listing of all corrected cases, here. We will post all affected cases with corrections highlighted within the text.

. . .

We are very aware of our crucial role in supporting the U.S. legal system, and there is nothing more important to us than delivering the best possible solutions and customer service to you.[***] Please accept our apologies for our errors. We are very sorry for the inconvenience.


Andy Martens
Global Head of Product & Editorial

So for the thousands we and millions of other lawyers pay them each month, we can’t even get a reliable account of the cases that constitute the written record of the American judicial system.  And this is just the errors Thomson Reuters has “become aware” of.

At this point in the evolution of document formatting and search technology, there is no reason why the following system shouldn’t be in place:

  1. All judicial decisions online in fully-searchable format.
  2. A taxpayer-funded, free, public database that permits full-text Boolean searches, that is, that permits any American with access to the internet to do the legal research necessary to understand our legal system.

Call it The Law Nerd Manifesto.


*And by “missing” we mean “the case no longer reads the way it was written by the judge.”

**And by “analysis” we mean “frantic ass-covering maneuvers.”

***”Well, almost nothing.  We also like rolling around like Scrooge McDuck in the massive piles of cash we reap from publishing THE CASES THAT CONSTITUTE OUR JUDICIAL SYSTEM.  Bwaahahahahahahaaaaaaaaaaaaaa!”

Who’s ‘They’? – The New York Times

From last Sunday’s NYT Magazine, called “Who’s They” online and “Multiple Choice” in the dead trees edition:

In December, the Post copy editor Bill Walsh called “they” “the only sensible solution to English’s lack of a gender-neutral third-person singular personal pronoun,” with “sensible” being the key word. The singular “they” gained favor with The Post’s standard-bearer partly because the presumptive “he” “hasn’t been palatable for decades,” but also because a generic “she” feels “patronizing” and “attempts at made-up pronouns” — like “xe,” “xim,” and “xir” — strike Walsh as “silly.”

But then, ten years ago, wouldn’t we have thought “text” as a verb or “blog” as any sort of word at all were silly?   How about “tweet”?   Or earlier, “fax”?  “Email”?

Xe, xim, and xir maybe new, unfamiliar, not-yet-widely-adopted, or (is it just me?) hard to pronounce, but they are not silly.



* Widely-adopted pronoun indicating (among others things) an arrogant, misguided fool.  Example: “Hey, asshole, take a sec to think about the fact that you sound like a cis-privileged old fart before you publish.”

American Exceptionalism

How are we going to defeat Daesh when we are frightened of the configuration of the body parts of the person who is peeing in the stall next to us?

Seriously, conservatives, get a grip.  It’s time for America to act like a grown-up country and face our real problems.

“Zara Drops a New Genderless Clothing Line”

“The retailer is the latest to embrace gender-defying fashion.”

Folks, this doesn’t defy anything.  This clothing line consists of items you could obtain, without patting yourself on the back for genderforwardness, by shopping at    .

What I’m waiting for is Business Casual Ungendered Work Slacks in which the waist fits and I don’t have to cut a foot of fabric off the bottom.  This will be a huge boon for my particular subgroup: short rectangular women with no perceivable waistline.  I wear men’s Levi’s, but that’s not an option for work slacks.

Sadly, fashion that actually fits short people is a step too far for even the most forward-thinking fashion house.

Also I have to make a word-nerd comment that will conclusively identify me as an old fart, but when did “drop” start meaning “add”?  I read the headline to mean Zara had a genderless clothing line, which they ultimately decided not to carry, and thus dropped it.

Source: Zara Drops a New Genderless Clothing Line | Complex

Musing on the passing of Justice Scalia


These two sayings have been bouncing around in my head:  Thumper’s Mother* —  “If you can’t say something nice, don’t say nothing at all;”  Alice Roosevelt Longworth — “If you can’t say something good about someone, come sit right here by me.”

Many people, possibly casting about for something nice to say, praise Scalia’s “fine legal mind” or words to that effect.  But that seems to me like eulogizing someone for having really good looking toes.  Or excellent hair.  Your brain is just another body part.   The fact that it worked quickly, or generated scathing bons mots, or was especially astute at plumbing the intentions of the long-dead committee who stapled together our Constitution, seems secondary or tertiary or hundred-ary to how you used your brain.  (Or your feet.  Or your . . . hair?)   On that score, it is very hard to find anything good to say.  Scalia’s jurisprudence insulted and excluded LGBT and Black Americans, closed the courthouse doors on non-corporate citizens, and sent hundreds of our fellow human beings to their death at the hands of our own states.  And often that fine mind of his refused to stop with a legal analysis of why our LGBT friends and family should not be able to marry or why universities should not be permitted to open their doors a bit wider for people whose great-grandparents WE HELD IN CHAINS.  So often, especially in dissent, he used that fine mind to craft scathing insults for those who disagreed with him.

He was a bully, and he used his powerful brain the way a bully uses his powerful fists.  We would not eulogize a bully for his awesome fists.

There is no universe in which Antonin Scalia could have been considered a good person.  Honestly, I would have trouble eulogizing a liberal judge who decided every case just the way I would, but insulted and demeaned his sibling judges, the litigants before him, and his fellow human beings.

Am I speaking ill of the dead?  Yes, I suppose I am.  But as one Tumblr philosopher noted, “we don’t speak ill of the dead in America unless they were unarmed and black.”  It’s time to make that practice more inclusive.

Update:  Don’t miss Lao Bao’s second comment below — and be thankful that he’s teaching our next generation!


* Oddly, I had remember this as Peter Rabbit’s mother, possibly because my father used Beatrix Potter as the source of a fair amount of conveyed wisdom.


Chief Justice Roberts quietly burns Scalia in the Obamacare decision – The Washington Post

Chief Justice Roberts quietly burns Scalia in the Obamacare decision – The Washington Post.

From the WaPo article:

The main question in the case is about the subsidies used to buy health insurance by people who otherwise can’t afford it. Roberts and Scalia disagree on whether Congress meant for the subsidies to be available through the federally run insurance marketplace set up under the law, as the Obama administration argued, or if Congress wanted to give subsidies only to people who bought insurance through an exchange operated by a state government, as the law’s opponents claimed.

Roberts agreed with the administration. He wrote that it was “implausible” for Congress to set up a system in which people who used the federal marketplace wouldn’t be able to get financial help buying insurance. Scalia disagreed. But, back in 2012, he had written that without subsidies, “the exchanges would not operate as Congress intended.”

And then there was this, from yesterday’s decision affirming the validity of the disparate impact theory of fair housing decision.  The majority opinion by Justice Kennedy explains that the Court had previously held similar language in Title VII and the Age Discrimination in Employment Act (ADEA) to support that theory.  Regarding the ADEA decision, Justice Kennedy wrote:

In a separate opinion, Justice SCALIA found the ADEA’s text ambiguous and thus deferred under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), to an Equal Employment Opportunity Commission regulation interpreting the ADEA to impose disparate-impact liability, see 544 U.S., at 243–247 (opinion concurring in part and concurring in judgment).

Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc., No. 13-1371, 2015 WL 2473449, at *8 (U.S. June 25, 2015).  In other words, in 1984, Scalia believed that the language of the ADEA was ambiguous on the question of disparate impact and deferred to the regulations, something he refused to do with respect to the Fair Housing Act yesterday.

And this was just gratuitous, as I’m confident there are approximately 10,000 statutory construction treatises Kennedy could have quoted from:

Against this background understanding in the legal and regulatory system, Congress’ decision in 1988 to amend the FHA while still adhering to the operative language in §§ 804(a) and 805(a) is convincing support for the conclusion that Congress accepted and ratified the unanimous holdings of the Courts of Appeals finding disparate-impact liability. “If a word or phrase has been … given a uniform interpretation by inferior courts …, a later version of that act perpetuating the wording is presumed to carry forward that interpretation.” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 322 (2012).

Id. at *11.

Such weird unpredictability from someone who believes the meaning of the constitution was fixed in 1787.

[Updated to add the second Inclusive Communities quote.]

Drive Like Your Kids Live Here*

Image: Red lawn sign with white letters that read "Drive Like Your Kids Live Here."  Other lawns in the background have the same sign.These preachy little signs are popping up all over our neighborhood. Every time I see one, two thoughts float through my head:

First thought:  I don’t have kids, you sanctimonious shit, so I’ll drive the way I would if my imaginary kids lived there and my imaginary kids all drive for NASCAR.

Second thought:  let’s apply this standard universally:

  • Provide access like your kids used wheelchairs.
  • Provide interpreters like your kids were Deaf.
  • Locate fracking like your kids lived there.
  • Make cops treat all kids like your kids.
  • Fund public education like you had one imaginary kid in each school in the country.  (Hey, if the Duggars can do it . . .).
  • Generally do unto others like you would do unto your kids.

Wasn’t there some guy a while back who had a whole philosophy, a religion, actually, IIRC, around a concept sort of like this?

Actually, a third thought often sneaks in, which is this:  I HATE this sort of sanctimony . . . FLOOR IT!  I honestly think this reaction would not be unusual, and that they’d have better results with a sign that read something like, “radar speed camera ahead.”


* Shouldn’t it be “like your kids lived here.”  It’s the subjunctive, you sanctimonious UNGRAMMATICAL shits!

“The Case Against Gay Marriage: Top Law Firms Won’t Touch It”

The Case Against Gay Marriage: Top Law Firms Won’t Touch It –

Here is what I wrote to the author:

I find it funny that the unwillingness of big law firms to handle cases that might affect their bottom line is getting a lot of attention around the marriage equality issue. We run a small civil rights non-profit that files lawsuits to enforce the Americans with Disabilities Act, and honestly, big firms that will represent tobacco companies and death row inmates won’t touch our cases. Why? Because we are asking their [potential] clients to be accessible to people who use wheelchairs, to deaf and hard of hearing people, to others with other disabilities. It’s not front page news; it’s business as usual for us.

Here is what I wrote on Facebook:

Oh cry me a fucking river. Your position is unpopular. Deal with it. Grow some balls and speak up for what you believe in. It’s not “crushing dissent” when you self-censor for economic gain.