oh, the caucacity of it all… unbearable karening alert, incoming.
नमस्ते
Category: Uncategorized
[U] To Be Certain, There Will Be No More Federal Executions — After 13 Rushed Ones, In Trump’s Waning Hours…
Continuing with our King Day 2021 theme — of changes Mr. Biden will implement immediately — and to be sure, these are changes that Dr. King long fought for… we will offer the wise Latina Justice Sotomayor’s blistering dissent, in the latest death penalty case, along with (at right) the case that completely convinced me to abandon the machinery of death, forever.
We may be certain that we will now return to the time when the federal death penalty had effectively been abolished, and life without parole was the effective outcome. And given the ongoing racial disparities in death-penalty eligibility, that can be the only… remotely just outcome. Here is that dissent (beginning at page 4), in pertinent part:
…JUSTICE SOTOMAYOR, dissenting.
After seventeen years without a single federal execution, the Government has executed twelve people since July. They are Daniel Lee, Wesley Purkey, Dustin Honken, Lezmond Mitchell, Keith Nelson, William LeCroy Jr., Christopher Vialva, Orlando Hall, Brandon Bernard, Alfred Bourgeois, Lisa Montgomery, and, just last night, Corey Johnson. Today, Dustin Higgs will become the thirteenth.
To put that in historical context, the Federal Government will have executed more than three times as many people in the last six months than it had in the previous six decades.
This unprecedented rush of federal executions has predictably given rise to many difficult legal disputes. One source of confusion has been the Federal Death Penalty Act (FDPA), which Congress enacted in 1994 to guide the imposition and implementation of federal death sentences. Pub. L. No. 103–322, Tit. VI, §60002(a), 108 Stat. 1959 (codified as amended at 18 U. S. C. §3591 et seq.). Prior to last July, the Federal Government had executed just three people since the enactment of the FDPA, two in 2001 and one in 2003. Many questions about the FDPA remain unanswered….
The Court has even intervened to lift stays of execution that lower courts put in place, thereby ensuring those prisoners’ challenges would never receive a meaningful airing. The Court made these weighty decisions in response to emergency applications, with little opportunity for proper briefing and consideration, often in just a few short days or even hours. Very few of these decisions offered any public explanation for their rationale….
This is not justice. After waiting almost two decades to resume federal executions, the Government should have proceeded with some measure of restraint to ensure it did so lawfully. When it did not, this Court should have. It has not. Because the Court continues this pattern today, I dissent….
It seems a scant victory, to return to avoiding killing people before their credible claims are exhausted, but we must start to return to honoring our higher principles — and quiet the howling mob’s cries for… blind blood-lust vengeance. That is about all these last 12 were.
We will now open on a better future, come Wednesday afternoon. That is all, go be of service, here on King Day 2021. [Confidential hint to the boys at Powerline: it is not “enough” to just blithely repost something you wrote a decade or more ago, verbatim. But I have come to expect such cabined lethargy from you four, when it comes to matters of the evolving standards of human decency.]
[Updated, from the case in the image, above right:]
“…A renowned example of racism infecting a capital sentencing scheme is documented in McCleskey v. Kemp, 481 U.S. 279 (1987). Warren McCleskey, an African American, argued that the Georgia capital sentencing scheme was administered in a racially discriminatory manner, in violation of the Eighth and Fourteenth Amendments. In support of his claim, he proffered a highly reliable statistical study (the Baldus study) which indicated that, “after taking into account some 230 nonracial factors that might legitimately influence a sentencer, the jury more likely than not would have spared McCleskey’s life had his victim been black.” 481 U. S., at 325 (emphasis in original) (Brennan, J., dissenting). The Baldus study further demonstrated that blacks who kill whites are sentenced to death “at nearly 22 times the rate of blacks who kill blacks, and more than 7 times the rate of whites who kill blacks.” Id., at 327 (emphasis in original).
Despite this staggering evidence of racial prejudice infecting Georgia’s capital sentencing scheme, the majority turned its back on McCleskey’s claims, apparently troubled by the fact that Georgia had instituted more procedural and substantive safeguards than most other States since Furman, but was still unable to stamp out the virus of racism…. Faced with the apparent failure of traditional legal devices to cure the evils identified in Furman, the majority wondered aloud whether the consistency and rationality demanded by the dissent could ever be achieved….”
I and many others now submit that it cannot. Here endeth the update.
नमस्ते
The Biden/Harris Day One-To-Day-Twenty Priorities…
No surprise here, and to be certain, there won’t be enough hours in my typical day to run down all the ways that the Biden Administration will now restore America to a standard of human decency, and competence, as a member of the world community.
But given that tomorrow is King Day 2021 (and though he was a Christian), we all know this ban is antithetical to all he fought for — for the dignity of all human beings — so we will lead with it.
And so, the readership should trust that I will focus (at least initially) on the undoings, of the manifold lawless atrocities we covered here, over the prior four years, as Baby-T and his minions inflicted them… upon us all (as the “curtailing, of liberty and dignity of even one of us, affects… all of us” — we are all diminished thereby). This, per Newsweek reporting:
…On the day of his inauguration, Biden will reverse Trump’s “Muslim Ban” and end restrictions on immigration from some Muslim-majority countries, rejoin the Paris climate accord and ask the Department of Education to extend the existing pause on student loan payments and interest for millions of Americans. He will also issue a mask mandate on federal property and during interstate travel….
He will also take action to “restore dignity to our immigration system” and start work on reuniting families that were separated at the U.S.-Mexico border, under Trump policies….
Just know that, even as snow falls here… we are smiling, and smiling… widely. Onward — toward… real progress.
नमस्ते
The Goons Who Hosted 8Chan — Epik — Put Up A Front Page, For Parler…
Hilarious. And… sad, all in one.
Epik will likely soon see its US hosting servers hit with subpoenaes, for archival copies… of everything — by FBI, DHS and perhaps even the DoD… over their… childish idiocy.
It seems Epik is now hosting it, by a check of the DNS registries — or at least a skeletal front page resides there.
But no commentary can be entered, by any user.
The front end (and back end) hasn’t been built yet / installed.
It may take… weeks.
Too late, for the insurrectionists.
Cheers, morons.
I Think This Effectively Scrubs Any 2024 Date For Artemis To Leave For The Moon — But That Was Always Unlikely, In Any Event…
Certainly, when Trump lost by over eight million votes, a 2024 crewed moon landing was swept from even the wildest of imaginations of White House budget thinkers, as it just doesn’t involve much new science value. And the idea that it was a needed step to reach Mars, with a crewed mission, was fanciful — at best.
The fact is… that going to the moon won’t solve the radiation problem a crewed Mars mission faces, in the many-months journey to — and from — Mars, without the protection of Earth’s magnetosphere. [Make no mistake — equipped with only our current technology, any member of a Mars crew may effectively live with life long health complications — cancers, or worse — for having volunteered to take that ride. And going to the moon — three days, each way — is not long enough to meaningfully test any new shield ideas.]
Even so, or perhaps — even MORE so, today’s aborted live fire test, of the massive engines needed to help Artemis leave Earth orbit… probably means no crewed moon landing… at all. Ever. Read this, for a more optimistic take — from NASA, this afternoon:
…The test plan called for the rocket’s four RS-25 engines to fire for a little more than eight minutes — the same amount of time it will take to send the rocket to space following launch. The team successfully completed the countdown and ignited the engines, but the engines shut down a little more than one minute into the hot fire. Teams are assessing the data to determine what caused the early shutdown, and will determine a path forward….
The current NASA administrator is a dyed in the wool Baby-T man.
I will candidly hope he will resign quietly after next Wednesday, and perhaps there will be a more rational science-based head, announced by Mr. Biden, to lead the fine agency forward. In my view Mr. Bridenstine didn’t allocate enough of the NASA priorities, and more importantly, funding — to what should have been the higher value science missions. I realize the Webb next gen space telescope is very complicated, cerebral and expensive, but he should have moved it forward, to 2020. Because it didn’t give Baby-T a shallow “astronauts” victory moment, and photo op, I suspect he pushed it back while advancing the Artemis moon shot, all while supinely obeying the dotard. That is unfortunate.
Webb is the future; not a crewed Mars mission — just watch all we will learn from Perseverance, and the helicopter, stowed with it — after February of 2021. Those are robotic, automated missions. They make science sense. Risking human lives on a journey to Mars? The payoffs are not compelling enough, given our proven ability to put much lighter, more economical and hardy robotic crafts safely in orbit, and gently guide them to the surface.
Thanks for. . . listening. G’night. . . grinning.
नमस्ते
“We Have Some Difficult Days Ahead…” But Hopefully Only A Few More Of Them.
In what was to be his last speech on Earth, Dr. King told us that the difficult days ahead didn’t really matter to him now.
He said he’d been to the mountain-top… as have we, now. Let us finish this thing, as we began it — peacefully, but with resolve.
On Wednesday at 12:01 PM Eastern, we will turn the page away from the Twenty-First Century version of Jim Crow-ism that was… Trump’s actual agenda, under all the lies.
And let us… [as BHO 44 urged, on that warm November night in 2008, in Chicago’s Grant Park] “bend the arc of history once more… toward… progress….”
नमस्ते
A Nice Opening To King Day Weekend, 2021: The NRA Files Chapter Eleven…
Well, this probably augurs well, for the coming week’s events — on a vibrational level.
I need not link the story — it is everywhere.
The NRA is merely a shadow of its former self, after being caught red-handed, as it were, accepting Russian state actor linked money, and offering it influence — by (among other things) then channeling it into various GOP candidates’ coffers.
Insane. Let us all hope that MLK’s spirit will keep Mr. Biden and Ms. Harris completely safe now and always. Onward.
नमस्ते
In Which Paul M. Abandons His… [Former] Law License: He Thinks “Government” Can “Legislate” The “Carrying” Of Private “Viewpoints”
Okay — the world has… certainly turned upside down. [Or, more plausibly, one is tempted to… admire the sheer audacity (caucasity!) of the lies told!]
Here we see nominal conservatives advocating for MORE government intervention, in private speech platforms. More. Insane.
The boys at Powerline seem to have forgotten that Saint Ronald Reagan VETOED an attempt to legislate the former (abandoned) FCC rule called the “fairness doctrine” — as both violative of the First Amendment, and an unwarranted intrusion on the owners of FCC broadcast license holders, not to discriminate in viewpoints, on the air. Thus Fox News “viewpoint news” was born, and flourished, BTW.
Now that Fox is largely discredited (as running obvious falsehoods, not just “viewpoints”), and the private clubs of Twitter, Facebook, YouTube, and Instagram (and others) have started curtailing / preventing false statements about elections, and dangerous calls for violent sedition efforts, against our sitting government… on their entirely PRIVATE, non-FCC licensed sites…
Paul wants to have GOP controlled states legislate that Jack must not treat any “viewpoint” badly. I suppose, he hopes to draw a red line (though he never explains how it would be done) between pedophilia online, and simply calling for the killing of government officials. In sum, he thinks the patchwork of state governors (and their captive legislatures, in red states, exclusively of course) — will do a better job than Jack — at making sure Trump can keep lying — over Jack’s… entirely privately owned megaphone. [For my part, I “couldn’t be more surprised, if I woke up with my head sewed to the carpet, Eddie….”]
Here’s what he wrote, in context. It is stunning, that a supposed conservative so fundamentally mis-applies basic First Amendment precepts:
“…Yesterday, I suggested an approach to fighting back against Big Tech’s censorship of conservative voices that I believe merits very serious consideration — state legislation banning viewpoint discrimination by Big Tech….
And the state is, of course, free to offer its own interpretation of what it means to be a “publisher” or “speaker” of information for purposes of this subsection, which courts may choose to accept. By way of further example, the state could also legislate that the covenant of good faith and fair dealing includes a promise to apply policies equally without regard to users’ political opinions, and that it cannot be disclaimed in the providers’ terms of service. There are other options as well. Given the more moderate/conservative composition of our higher level courts now (especially SCOTUS), and the shocking events of late, a state law like this could give courts an opening to fix things….”
This is… lunacy. It would be prima facie…. unconstitutional. Numerous citations available. [Red Lion itself, the seminal 1969 Supreme Court case in the arena, would clearly suggest that internet social chat boards are in no manner “scarce” any longer (not since at least the early 2000s) — and they are thus essentially the opposite of an FCC licensed television or radio monopoly over a given geographic market.]
No state government may tell a private chat club what it must carry on its platform. Just ask Ron Reagan, who felt strongly that even a fairness or balanced approach, where the FCC granted highly lucrative broadcast licenses to own a monopoly on the over the airwaves broadcasting, was antithetical… to a free society. See (as just one of dozens of examples) this:
“…In 1949, the FCC adopted the fairness doctrine, a policy that viewed station licensees as “public trustees” and, as such, responsible for addressing controversial issues of public importance. The key requirement was that stations allowed opportunity for discussion of contrasting points of view on these issues.
Later, in 1967, two corollary doctrines were added. The first was the political editorial rule, requiring that if a station editorialized either for or against a candidate for public office, the station had to notify the disfavored candidate within 24 hours and allow him/her to reply to the editorial; the second was the personal attack rule, which states that when a person or group’s character or integrity is impugned during the discussion of a controversial issue, the station must notify the person within one week, and offer a reasonable time for response.
By the 1980s, many stations saw the FCC rules as an unnecessary burden. Some journalists considered the fairness doctrine a violation of the First Amendment rights of free speech and free press; they felt reporters should be able to make their own decisions about balancing stories. In order to avoid the requirement of presenting contrasting viewpoints, some journalists chose not to cover certain controversial issues at all. In addition, the political climate of the Reagan administration favored deregulation. When the fairness doctrine came before the courts in 1987, they decided that since the doctrine was not mandated by Congress, it did not have to be enforced. FCC suspended all but the two corollary doctrines at this time.
As this was happening, Congress passed a bill to make the fairness doctrine into law. However, President Reagan vetoed the legislation and there were insufficient votes to override the veto. In 2000, when the FCC failed to justify the two remaining corollary rules, the political editorial rule and the personal attack rule were repealed….”
Stand back now, from the bark of the trees — and marvel at the green forest here: supposed hard right conservatives now want to legislate “must carry” viewpoint based content, free of charge.
Note that this is not closing out paid advertising. The suggestion from these fake conservatives is that the government may order private chat boards to allow dangerous sedition on their private networks.
If there was ever a wolf in sheep’s clothing — these boys… are it.
Do not fall for it. The federal courts positively will not fall for it.
All of you may write Hinderaker or Mirengoff on this, directly at this address, from time to time:
powerlinefeedback@gmail.com
Onward, grinning….
About One Month Until Perseverance Arrives At Mars, And NASA Ends Efforts To “Mine” On Barsoom.
Well, the benefit of all well-designed science efforts, it seems, is that one often learns as much, or more — from experiments that do not work as envisioned, as ones that “succeed” — go as planned.
So it is with the mole, on the floor of Mars’ “ice cream dippin’ dots” surface, where the InSight lander set down. [Having been a miner, of the darkened hard rock depths, of the Rockies, decades ago in my youth — I was very much hoping this particular instrument pack would yield deeper underground science results and readings. But we got… some “dippin’ dots”, instead — oh well, I guess that’s not all bad. Grin….] Where was I? Oh, right… on Barsoom’s surface soil characteristics:
Most of the soil we’ve encountered elsewhere on Mars is more like a very tightly packed, hard frozen solid expanse of Rocky Road ice cream (but with real rocks in it). Thus (it was thought), a small jack-hammer, inside a pointed tubular case, should have been able to bore its way into the subsurface, down about 15 feet — to take temperature and other measurements of quake vibrations.
Not so, at this site. The loose frozen “dippin’ dots” just slide to the side, and then fill back in, where they previously were, once the percussion stops. In sum, the drill-bit cannot get a “bite”, on the surface, or below it for at least two feet of depth. Even trying to tamp it down under that layer with the robotic shovel arm has proved unavailing. So the time has come to focus on all the other parts of InSight that are delivering quake and weather data, perfectly from Barsoom. The mole will be powered down before the Perseverance mission craft drops into orbit overhead, in mid February. Here’s the story from NASA JPL, and a snippet:
…The unexpected properties of the soil near the surface next to InSight will be puzzled over by scientists for years to come. The mole’s design was based on soil seen by previous Mars missions — soil that proved very different from what the mole encountered. For two years, the team worked to adapt the unique and innovative instrument to these new circumstances. . . .
They’ll put their hard-earned wisdom to use in the future. The mission intends to employ the robotic arm in burying the tether that conveys data and power between the lander and InSight’s seismometer, which has recorded more than 480 marsquakes. Burying it will help reduce temperature changes that have created cracking and popping sounds in seismic data….
So, as with all knowledge acquisition, the wise are able to put the learning to good use. It is only the fools among us who will not learn, and adjust — as they seem unable to take what is learned, and better their chances, thereafter. Onward, smiling just the same….
नमस्ते
Back To The “Power Alley” For A Moment — With An Update On Martin Shkreli’s ACTUAL Antitrust Exposures, In Contrast To AWS’s (Per Parler, At Least) Below…
Regular readers know that we long-ago covered Mr. Shkreli’s downfall at a separate property. This update is cross-posted here because it makes a nice counterpoint, to indicate what actual Sherman Act violations look like, in contrast to the preposterous claims of Parler and its counsel against the Amazon Web Services unit. It also sets out some sound advice for counsel to the boards of life science companies more generally, in the US. Here you go:
Martin (And Vyera/Phoenixus) Mostly Lose… On Whether Additional Sections Of The 2017-19 Board Minutes Must Be Disclosed To The FTC…
Not terribly surprising, but Vyera must turn over to the FTC additional sections of its board meeting minutes from 2017 and 2019 — by this Friday, at noon — especially as the same relate to the decisions to approve some extremely restrictive API supply agreements with a company called RL Fine. [Of course the FTC and States are seeking to prove that Martin intended to unlawfully restrain competition from generic versions of Daraprim®, by limiting access worldwide to pyrimethamine, the API needed to conduct FDA required reference testing to establish bio-equivalence for the putative generic.]
The practice tip here, for counsel to the boards of US companies, is to memorialize very clearly when anyone asks for legal advice, from a lawyer, during a meeting, and indicate that a lawyer responded with the requested advice. Unless counsel is preparing the minutes to create a record that s/he advised against a course of conduct as plainly unlawful — it is rarely a good idea to set out what that advice was. In all other situations, the better practice is to simply recite that the board sought legal advice on a matter, fully discussed the merits and risks of the course of action, and (if true) agreed to abide by the legal advice offered, in taking the proposed course of action.
That’s how we do it — out here, in the Big Leagues. It preserves a record that the the board acted responsibly, and that it was aware of the risks, and made a considered, non self-interested business judgment (protected, for example, under Delaware’s so-called “business judgment” rule) in adopting or foregoing a course of action.
In contrast, it seems Martin’s counsel (or perhaps whomever served as the Board Secretary, at the meetings) at the time was uneven and slipshod, in describing the precise tenor of the discussions, and unless the minutes are inaccurate, the Secretary to the Board did not follow up to be sure a lawyer answered specific legal questions raised by board members. Had the Secretary so asked, it is a near certainty the lawyer would have given specific advice, and the minutes could have reflected that fact, while omitting additional detail.
But — and this seems likely here — if counsel (at the Vyera board meetings) or the Board Secretary, directly, wished to preserve a record that the legal advice was strongly against a course of conduct thought to be clearly unlawful, many responsible lawyers I know would note that fact with specificity in the minutes (setting out the applicable law, and legal conclusions), if it seemed clear that the board was going forward with unlawful agreements (under US law), or otherwise impermissible restraints of trade (perhaps in this case, under EU law — given the EU / Swiss domiciles involved). Of course, at most responsible companies, clearly unlawful conduct is never endorsed at board meetings, so there is rarely any need for making a “fail-safe” record.
In any event, here’s a bit from the cogently-reasoned 13 page order entered by USDC Judge Cote in Manhattan, overnight — essentially granting the FTC access to about nine-tenths of the board minutes it sought as overly heavily redacted:
“…The passages that must be disclosed do not reflect either a request for legal advice or the delivery of legal advice. Vernick begins the Meeting by informing the Board about discussions between Vyera and RL Fine. Then, in the first box on page 3, he describes a business rationale for the RL Fine collaboration and refers to information available to the Board about competitors. Nothing in the passage indicates that Vernick is providing legal advice. Similarly, in the second box on page 3, the Chair and a fellow director provide their opinion of the business rationale for a collaboration with RL Fine.
In the third box on page 3, Paragraphs 4 and 5 describe legal advice by Vernick and Däscher to the Board about the legal implications of the collaboration. The remainder of the third box does not describe a request for legal advice or the presentation of such advice. It contains the continued presentation by the Chair and a director of the agreement and, in the final paragraph, their recommendation that the Board approve the collaboration. It notes that the Chair and director have been informed of the legal risks, but it does not describe those risks. Finally, the box on page 4 does not contain a request for legal advice or a description of any legal advice….
In the second paragraph, the CEO reports that he considers something to be inappropriate, and a Board member responds. There is no request for or delivery of legal advice….”
That last bit I quoted, above would have been the perfect moment for someone to turn to counsel, and have a recitation of actual legal advice, and so indicate — and thus largely immunize the remark (which now the FTC is likely to make quite a bit of hay with) from disclosure, as part of a legal advice privileged exchange.
Again, though it may well be that the CEO at the time (not Martin) wanted to make clear that he was not signing up for unlawful conduct — and so this is his defensive record, in any shareholder derivative suit.
Hard to tell from the scant context — but fascinating, just the same.
Martin is going to lose into the high tens of millions of dollars here, Condor sez.
Bank on it.
Onward — smiling, in the chilly sunshine of the steel and glass canyons now….
