Healthcare law classes generally include a discussion of off-label uses for prescription medication. If you happen to become engaged in such a discussion, be sure to mention this story.

In perusing the post-election headlines, I ran across this story about Californians protesting the passage of the controversial “Proposition 8″ which amended the state constitution to prohibit homosexual marriages. My purpose here is not to comment on the proposition or even the social issue at all. Rather, in reading the story, it occurred to me that I could not recall another instance in which there were public demonstrations and protests over the outcome of a popular vote.

I can understand people protesting the government when it makes unilateral actions that people disagree with. Certainly the purpose of protesting (and indeed, the First Amendment) is to ensure the people have a voice when their government takes actions with which the people disagree. But Proposition 8 was voted on by the people. Those for it and those opposed to it had their voices heard, not just with the pre-vote campaigning, but in the exercise of the vote itself.

So what do you think? Is this a perfectly legitimate protest, or does it border on “sour grapes”? Are there any other instances I am not aware of where Americans protested the outcome of the direct exercise of democracy?

Read this, and then read this.

Thoughts?

Personally, I cannot see the educational value in taking school children to any personal life event of a teacher. I would object to children being taken to any wedding during school hours. To be charitable, perhaps this was a way for the teacher to avoid having to take a personal day.

Well the school year is a few weeks old and I and my fellow 2L’s are therefore already buried. That being said, it’s never good to let a blog grow cold, so hopefully I (and the other contributors!) will find time to re-energize it. One thing you may notice is the name change. I felt it was time for something punchier; that time is now.

Anyway, on to business.

I am not all that interested in economics per se, nor do I consider myself a political guru by any stretch. Nonetheless, I wanted to offer up a remark about the astonishing $700,000,000,000.00 government bank buyout that is currently occupying headlines.

I don’t pretend to know all the details of this plan, but obviously, someone is going to have to pay for it and everyone knows the U.S. government is already dead broke. That fact also brings up an interesting corollary that I am not seeing mentioned in the media: We are in this position because of widespread and rampant financial mismanagement. So why do we think that the federal government (which already has a $10 Trillion debt to testify to its financial management prowess) is going to make the situation better? And even if we could be sure it would, does that necessarily mean that it should?

It makes me nervous when the government interferes in free markets for the purpose of economic engineering.

One other point that goes to my caveat regarding politics. I would consider myself conservative, but I would not call myself a Republican. One reason for this is exemplified by this issue. If liberals can be counted on to increase government spending to pay for gratuitous government programs, why can’t conservatives be counted on to keep the government uninvolved and let the market regulate itself? Why does the choice seem only to be where we spend the $700 Billion we don’t have?

HP Shatters Excessive Packaging World Record

[Insert references to Step-Saver v. Wyse Technologies here]

The Clarion-Ledger ran a very interesting article today regarding a former Jackson Police Department officer who plead guilty to vehicular manslaughter and whose record was expunged two years later. The article presents several interesting topics of conversation, not the least of which being the practice of deferred sentencing which appears to aid the “good old boy” reputation of Jackson law enforcement.

However, I want to focus on the issue of governmental immunity. Here is a relevant excerpt from the article:

On June 11, 2005, Middleton, who had been a Jackson police officer since 2003, was working a 2-10 p.m. shift. After dropping a prisoner off at the Hinds County Detention Center in Raymond, he headed north on Mississippi 18 near Siwell Road, according to police statements.

At the same time, around 10:44 p.m., Harris was heading in the opposite direction. Harris, driving a 2000 Pontiac Grand Am, tried to turn left onto Siwell.

Witnesses told police investigators that Middleton was driving at a high speed without his emergency lights or siren on. They said he ran the traffic light and crashed into Harris’ vehicle.

Middleton was indicted in October 2005. After a Jackson Police Department Internal Affairs investigation, he left the department.

Harris’ family has a wrongful death lawsuit pending in Hinds County Circuit Court against Middleton and the city of Jackson. No trial date has been set.

Assistant City Attorney Pieter Teeuwissen said the city’s position is that it is prohibited by law from paying the Harris family’s claim.

Teeuwissen said the state code says “an employee shall not be considered as acting within the course and scope of his employment and a governmental entity shall not be liable or be considered to have waived immunity for any conduct of its employee if the employee’s conduct constituted fraud, malice, libel, slander, defamation or any criminal offense.”

Although the offense has been wiped from Middleton’s record, he pleaded guilty to a criminal offense, Teeuwissen said.

Sounds reasonable, right? You may not agree with the law, but there it is, black and white. A government employee is not acting within the scope of his employment if he is engaging in a criminal act. Middleton plead guilty to a criminal charge, therefore he was not acting within the scope of his employment, right? Not quite.

Whether the reporter considered it unimportant, or whether Mr. Teeuwissen omitted it from his interview, the actual statute reads a bit differently from the quote in the article. Here is Miss. Code Ann. § 11-46-5(2) in its entirety:

For the purposes of this chapter an employee shall not be considered as acting within the course and scope of his employment and a governmental entity shall not be liable or be considered to have waived immunity for any conduct of its employee if the employee’s conduct constituted fraud, malice, libel, slander, defamation or any criminal offense other than traffic violations. (emphasis added)

That changes the landscape a little, does it not? Respondeat superior and governmental immunity may be complicated issues, but there is a huge difference between a government employee knocking over a 7-11 and a police officer on duty, in uniform, in a marked government police cruiser returning from a duty of his employment driving recklessly, running a red light, resulting in the death of a motorist. One falls under the statute and the other doesn’t.

Mississippi has taken another paternalistic step forward. This week, the City of Jackson voted to ban smoking in all restaurants. Reading through the comments on the article, and based on conversations I’ve heard, there appears to be a general concern for children underlying the support for such a measure. Says one commenter:

I am all for a total ban on smoking, but I think to be reasonable that the law should ban smoking anywhere that children may be present. It should be allowed in stand-alone bars, nightclubs, and casinos. It is fair that smokers have somewhere to go, but they should not be allowed to smoke around children. And I should not be forced to keep my child at home to avoid their smoke. It is time for smokers to have some responsibility.

This is a very interesting statement. It implies that tobacco smoke and children should not exist in the same place at the same time. Assuming for the moment that this is true, why prefer children over smoke in Red Lobster? If smoke is irritating, what about screaming, crying babies and poorly behaved children? It’s almost impossible to relax and enjoy a good cigar after dinner with all the annoying children carrying on. So again, why not pass a law prohibiting children from restaurants? Because it would be absurd, that’s why.

There once was a day when politicians and judges would refuse to hear these issues, preferring to let the market self-regulate. In this age of state paternalism, that seems to be an antiquated notion. In the old days, property owners had the right to allow or prohibit perfectly legal behavior on their premises. If you didn’t like smoke and a non-smoking section wasn’t good enough for you, you could register your displeasure and not come back. If enough people did the same, the restaurant would lose business and be forced to reassess its position.

Likewise, if a restaurant voluntarily prohibited smoking and you like to enjoy a cigar or pipe after dinner, you could register your displeasure and eat elsewhere. In either case, property owners were free from government intrusion and the market would regulate itself.

But not anymore. Now, if there’s something that annoys you, you don’t have to be content to merely utter “there oughta be a law…” Now, you can actually get one.

As I noted a couple of months ago, the dust kicked up by last year’s Supreme Court decision Bell Atlantic Corp. v. Twombly will take quite a while to settle. In a recent (and ongoing) case in which post-9/11 detainees are suing the federal government, the feds tried to get the case dismissed on the grounds that the facts alleged in the pleadings were unsupported by sufficient evidence. The Court of Appeals for the Second Circuit ruled that the pleadings were “plausible,” borrowing language from Bell Atlantic. According to the New York Times:

The standard for allowing the case to go forward should be higher than mere plausibility, the government said, pointing to recent Supreme Court decisions, including one in an antitrust case last year, that raised the standard for the evidence that plaintiffs must provide at the initial stage in order to withstand a motion to dismiss their lawsuit.

The unnamed antitrust case is a reference to Bell Atlantic and while the NYT article implies that the Government is getting greedy and arguing that even plausibility is insufficient, the text of the appeal makes it look more as if the Government is arguing that even though the Second Circuit couched its opinion in terms of plausibility, the evidence at this early stage is nonetheless insufficient under Bell Atlantic.

The case is styled Ashcroft v. Iqbal and the Supreme Court granted certiorari, meaning that we could soon have a firmer understanding of the impact of Bell Atlantic on the notice pleading system. Stay tuned…