Legalia
Non-competes
I’m glad the FTC banned non-competes. (The preceding sentence assumes that it had authority to ban them.)
My main beef with non-competetion clauses is summarized at the Dispatch:
In practice, the agreements are often sprung on workers after they’ve accepted a job and turned down other offers …
Here’s how that works (or, I hope, worked) in my fair state:
- All employment is “at will” unless otherwise specified. That means your employer can fire you any time for almost any reason or no reason.
- If your employer hires you and then springs a non-compete clause on you, your choice is to sign or, in all likelihood, be fired as an at will employee.
- Aha! says the reader who remembers from a business law class that an enforceable contract must be supported by consideration on both sides. But your employer’s contractual “consideration” that makes the non-comp enforceable is forebearing from firing you, you miserable “at will” employee, on the spot. Gotcha!
- Oh, yeah: Your employment is still “at will” after you sign.
I’d call that an “unfair or deceptive act or practice” of the sort the FTC is empowered to regulate.
There’s a Latin maxim: abusus non tollit usum. I have no little or problem with the usum of non-competition clauses freely bargained over up-front rather than sprung after the employee has burnt bridges. But I never saw a single one of those in my law practice, perhaps because employees who freely bargained for them were honorable enough not to complain about them later, when they pinched. It was the employees who got them sprung on them after hiring on who had legitimate beefs, but beefs that my fair state almost never recognized as legitimate despite ritual professions that non-competition clauses were “disfavored.”
So vastly do the abuses outweigh legitimate uses that I’m viscerally in the “burn them all down” camp. So kudos to the FTC, and may the Chamber of Commerce challenge crash and burn, too.
Presidential Immunity
No lower court has determined whether the allegations in Trump’s indictment amount to official acts that could be shielded from liability or private conduct. But when the Supreme Court agreed to take the case, it rephrased the question it would consider as: “whether and if so to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”
That means the high court’s ruling is likely to require lower courts to separate out Trump’s official acts from his private ones, as alleged in the indictment, before proceedings can restart in the election obstruction case. If the D.C. trial is stalled until after the election, and Trump returns to office, he could pressure his attorney general to drop the federal charges against him.
…
Here’s Judge Michael Luttig’s commentary on Thursday’s arguments (I’ve unrolled his Xitter thread):
As with the three-hour argument in Trump v. Anderson, a disconcertingly precious little of the two-hour argument today was even devoted to the specific and only question presented for decision.
The Court and the parties discussed everything but the specific question presented.
That question is simply whether a former President of the United States may be prosecuted for attempting to remain in power notwithstanding the election of his successor by the American People, thereby also depriving his lawfully elected successor of the powers of the presidency to which that successor became entitled upon his rightful election by the American People — and preventing the peaceful transfer of power for the first time in American history.
Charlie Sykes (Emphasis in Original)
Now don’t go cross-eyed on me. You can understand this: the court decided to consider “whether and if so to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.” I’m baffled that Judge Luttig could call his lurid-if-accurate paragraph as “the specific question presented.” I could accept “the question behind the question presented” or “the ultimate question,” but “question presented” is a term of art in Supreme Court practice, one that advocates abbreviate as “QP.” Woe to the advocate who bops in saying “Why ya’ kidding here? We all know that the “QP” isn’t the real question,” because the “real question” is what the Court says it is.
That said, Judge Luttig proceeds to lay out an interesting case against Trump on his tendentious version of the question presented. (You might want to get a prophylactic antibiotic shot before reading the comments to the Judge’s thread.)
Food for Thought
Earlier this month, the actor Jonathan Majors was sentenced to a year of domestic violence counseling after being found guilty of assaulting his ex-girlfriend. The response to the sentencing was muted. While there was plenty of social media chatter, some of it anguished, there were few thinkpieces to be found …
In general I didn’t hear much outrage. And I think that might be a sign of progress. Because while I certainly understand having mixed feelings about the sentence, it’s exactly the kind of alternative to prison that we need to solve mass incarceration. Prosecutors didn’t ask for jail time, the judge didn’t hand down any, and a first-time Black offender was diverted out of the penal system. That’s exactly what those of us who support comprehensive criminal justice reform have been calling for, these past years. Isn’t it?
When I spoke at MIT recently, I pulled a rhetorical move that I admit is a little cheap, but which does help to clarify things. I asked students if they thought that, from a social justice standpoint, a man should go to jail for punching someone in the face, once, as a first-time offender. They all seemed to feel that, no, such a person should not go to jail, that such a punishment is too extreme for the crime. That’s more or less how I feel, too. But then I asked them “What if that person is his wife?,” and watched the confusion spread. Their certainty about what was just suddenly deserted them. The anti-carceral instincts of many progressives are often complicated by “identity crimes,” in this way. There’s a generic sense that our justice system should be more lenient and more forgiving, except when it comes to crimes like domestic violence or sexual assault or hate crimes, in which case the punishments are immediately assumed to be too lenient and too forgiving.
Pedantic point: What Jonathan Majors did presumably was battery, not assault.
Culture
You never enter the same stream twice
“We can’t ever go back to the old things or try to get ‘the old kick’ out of something or find things the way we remember them,” wrote Hemingway. “We have them as we remember them and they are fine and wonderful and we have to go on and have other things because the old things are nowhere except in our minds now.”
…
“Every time I came back to somewhere, I was disappointed, and I loved Michigan so much I didn’t want to be disappointed.”
John J. Miller, quoting Hemingway in Hemingway’s Michigan
This reminded me that I need to get some Hemingway books and (sigh!) get them into the queue of books that I’ll never finish reading before I die — hundreds of them, many on my shelves, or Kindle, or Apple Books.
I don’t know Petoskey as well as I know Traverse City, Glen Arbor, Leland, Suttons Bay, and Northport, but what I know, I love. And I have fond memories of lunches and dinners at City Park Grill.
But I don’t have a lot of photographs of these places. Somewhere along the line, I intuited that I experience most places more intensely if I don’t try to capture it on film (or film’s digital equivalents). Is this in the Hemingway spirit?
(But I seem to have made an exception for photos from the turnoffs along the Pierce Stocking Scenic Drive.)
Filtering out monoculture banality
Literary fiction in America has become a monoculture in which the writers and the editors are overwhelmingly products of the same few top-ranked universities and the same few top-ranked MFA programs … Such people tend also to live in the same tiny handful of places. And it is virtually impossible for anything really interesting, surprising, or provocative to emerge from an intellectual monoculture.
With these facts in mind I have developed a three-strike system to help me decide whether to read contemporary fiction, with the following features:
- The book is set in Brooklyn: Three strikes, you’re out.
- The author lives in Brooklyn: Three strikes, you’re out.
- The book is set anywhere else in New York City: Two strikes.
- The book is set in San Francisco: Two strikes.
- The book’s protagonist is a writer or artist or would-be writer or would-be artist: Two strikes.
- The author attended an Ivy League or Ivy-adjacent university or college: Two strikes.
- The book is set in Los Angeles: One strike.
- The author lives in San Francisco: _One strik_e.
- The author has an MFA: One strike.
- The book is set in the present day: One strike.
… It is vanishingly unlikely that a book that gets three strikes in my system will be worth reading, because any such book is overwhelmingly likely to reaffirm the views of its monoculture — to be a kind of comfort food for its readers.
The coastals don’t get the heartlanders
[F]or me, the travel (specifically the travel into small towns) was the best part of the [documentary film] exercise. I always felt a lot wiser every time I returned to my Brooklyn coffee shop or neighborhood bookstore; I always felt like I wanted to start getting into arguments with everyone around me. It wasn’t that my politics were so different from my coastal brethren, but after even a few days in Decatur or Lubbock or Clovis or wherever I was, it would be clear to me that there was a great deal about the country that liberals and progressives—however well-intentioned they might be—were just missing.
Sam Kahn, A Reckoning Is Coming for the Democrats
Is Cultural Christianity a non-starter?
‘When one gives up the Christian faith, one pulls the right to Christian morality out from under one’s feet.’ Nietzsche’s loathing for those who imagined otherwise was intense. Philosophers he scorned as secret priests. Socialists, communists, democrats: all were equally deluded. ‘Naiveté: as if morality could survive when the God who sanctions it is missing!’
Tom Holland, Dominion. I’ve come, probably only within the last five years or so, to appreciate Nietzsche. He hated Christianity, but he hated it for the right reasons.
Machiavelli made points similar to Nietzsche’s, centuries earlier.
The roots of trans ideology
If you, like me, have wondered how society ever came to accept ideas like “a woman trapped in a man’s body,” you, like I, may find this UnHerd article helpful: Sarah Ditum, Who is to blame for gender theory?. Feminism of certain sorts played a role. From the introduction:
At some point in the Noughties, the idea that men and women were fundamentally alike in character and aptitude (if not in body) became the only acceptable thing to believe; and at some point shortly after that, the doctrine of transgenderism swept in and swept away every claim feminism had ever made. It’s a classic of the monkey’s paw genre: be careful what you wish for.
The burning of the Ivies is an inside job
The mounting chaos on Ivy League campuses in recent days is only the latest chapter in a longer story of America’s elite colleges sabotaging their hard-earned reputations. And now, some prospective students and parents are wondering: Are these really the best places to spend four years and hundreds of thousands of dollars?
Some are taking Nate Silver’s advice.“Just go to a state school,” he tweeted Sunday. “The premium you’re paying for elite private colleges vs. the better public schools is for social clout and not the quality of the education. And that’s worth a lot less now that people have figured out that elite higher ed is cringe.”
Other prospective students are heading south to colleges like the University of Miami, Clemson, Elon, and Georgia Tech, where the weather is nicer and campus life is more relaxed.
Subjective, but real
If we have a sense that there is something higher than our reason can explain to be found in the woods and the fields, and if this is the real reason our hearts break when the woods and the fields are bulldozed in the name of economics, then this sense, like our ability to love or to experience beauty or ugliness, is entirely ‘subjective’. But it is also entirely real.
Our culture stands in awe of science, and is repeatedly thrilled by what it can do, and understandably. But it is far less keen to talk about what it can’t do. We tend to allow the excitement generated by men in lab coats rebuilding frogs to blind us to the reality of what science is: simply a method of finding out how things work. This is hardly a small thing, but it is not as a great a thing as some of its public advocates would have us believe either. And neither is it, as some are very keen for us to believe, the basis of a new ethic.
Paul Kingsnorth, In the Black Chamber
Only the wild attracts
In literature it is only the wild that attracts us. Dullness is but another name for tameness. It is the uncivilised free and wild thinking in “Hamlet” and the “Iliad”, in all the Scriptures and Mythologies, not learned in the schools, that delights us.
Henry David Thoreau via Martin Shaw
Unfree and humiliated
To be subject to the sort of authority that asserts itself through a claim to knowledge is to risk being duped, and this is offensive not merely to one’s freedom but to one’s pride.
Matthew B. Crawford, The World Beyond Your Head
Not too Swift
I am too unfamiliar with her oeuvre to have an opinion worth sharing on Taylor Swift. I don’t mean to be dismissive; I’m a 75-year-old guy who feels cold breath on his neck and doesn’t have time to master the ins and outs of a young lady who (reportedly) sings a lot about bad relationships and break-ups.
Damon Linker says a little about her newest releases, but then turns to the subject of editing, which includes curation. If you’re interested in the arts or in writing, it’s worth your time — assuming, that is, that the cold on your neck is no colder than that on mine.
For Love of Sentences
- In Esquire, Charles P. Pierce reflected on an emblematic American newspaper: “Ever since USA Today first darkened the doors of our rooms in various Marriott properties, we’ve all had fun mocking the way it served up the news in easily digestible nuggets (and also pie charts!). Of course, given the aerosolized way we get our news these days, the old USA Today looks like The Paris Review.” (Stephen Wertheimer, Boca Raton, Fla.)
- Robin Givhan considered Donald Trump’s appearances in a Manhattan courtroom last week: “This is a trial that reminds us of the smallness of Trump even as the idea of him, the myth of him has become outsize.” (Betsy Snider, Acworth, N.H.)
- And Karen Tumulty chronicled the Kennedy clan’s effort to quash the candidacy of Robert F. Kennedy Jr.: “In an election fueled by fear and resentment, there is no torch to be passed — except for the one that the Kennedys fear would be used to set fire to what’s left of the family’s name.” (Greg Howard, Vancouver, Wash.)
Politics
Mike Johnson
I strongly support the aid package while understanding the qualms about it, but its merits aren’t my focus here. Johnson’s principled course is. He made common cause with political adversaries. He potentially put his speakership in greater jeopardy than if he’d taken a different tack (though these matters are tricky and time will tell).
What impresses and encourages me most, though, are accounts of how he arrived at his backing of the bill: He educated himself. As Catie Edmondson reported in an article in The Times on Sunday, Johnson “attributed his turnabout in part to the intelligence briefings he received, a striking assertion from a leader of a party that has embraced former President Donald J. Trump’s deep mistrust of the intelligence community.”
Seeking more information. Not dismissing it out of hand because of its provenance. Humbly conceding that your prior understanding was faulty or incomplete. Encouraging others to look beyond their stubbornness to the possibility of enlightenment.
None of that should be exceptional. All of it is. May it be a model for the lawmakers around him, for all politicians, for the rest of us.
Don’t forget the RFKJr wild card
Kennedy hurting Trump more than Biden: Poor RFK Jr. First his family clubbed together to shoot an ad for his presidential opponent Joe Biden. Now a group of his former colleagues in the environmental movement have written to him urging him to drop out of the race. “In nothing more than a vanity candidacy, RFK Jr. has chosen to play the role of election spoiler to the benefit of Donald Trump—the single worst environmental president our country has ever had,” write his (former?) buddies.
But while the left turns the screws on Camelot’s wayward son, a new poll shows that it’s Trump, not Biden, suffering more from Kennedy’s presence in the race. A survey published by Marist yesterday showed Biden (51 percent) three points ahead of Trump (48 percent) in a two-way contest, but that extends to a five-point lead when other candidates are included. In a five-way contest, Biden is at 43 percent, Trump is at 38 percent, RFK Jr. is at 15 percent, and Cornel West and Jill Stein both register 2 percent.
I am mildly surprised. Before JFKJr. picked a billionaire far-lefty for his running mate, I thought he would hurt Trump more than Biden. Then I thought the VP choice flipped that.
Shows how much I know. Why are you even reading this?
The GOP division
Amid threats to oust House Speaker Mike Johnson for allowing a vote on aid to Ukraine, Rep. Tony Gonzales of Texas captured the party’s own divide between the good and the rest in colorful terms on CNN Sunday. “It’s my absolute honor to be in Congress,” he said, “but I serve with some real scumbags.”
You can’t make this stuff up
18 defendants in a nine-count indictment unsealed in Arizona on Wednesday that alleges they conspired “to prevent the lawful transfer of the presidency to keep Unindicted Coconspirator 1 in office against the will of Arizona’s voters.” … Two newbies to the indictment circuit are Trump adviser Boris Epshteyn and Christina Bobb, another former Trump campaign lawyer who was recently tapped to lead the Republican National Committee’s “election integrity” department.
The Morning Dispatch (italics added).
This, boys and girls, is why every morning since early 2020 I’ve prayed that God would “Thwart those who conspire to commit political fraud, intimidation, or otherwise to corrupt or overthrow our elections.” It was obvious early on that they intended to become the election officials who could, if anyone could, overthrow the will of the voters.
Mistaken identity
Pardon me: Your patience is wearing thin!? From my text app last night:
Maybe she mistook me for someone who cares about the thing that used to be the Republican Party.
So: where did all my mockery of Trump go?
I suffer more from the humiliations inflicted by my country than from those inflicted on her.
Simone Weil, from a letter to Georges Bernanos.
You can read most of my more impromptu stuff here and here (both of them cathartic venting, especially political) and here (the only social medium I frequent, because people there are quirky, pleasant and real). All should work in your RSS aggregator, like Feedly or Reeder, should you want to make a habit of it.