In Kramer v. Intuit Inc., 2004 WL 1626408 (2004), the Court of Appeal affirmed the dismissal of a case alleging that the rebate on Quicken software was an unfair business practice because it requires customers to buy TurboTax also if they want the rebate. That was really the complaint. As the Court noted, “Kramer does not contend on appeal that the rebate in question was in any manner deceptive or misleading.” Rather, he complained that California law makes it illegal to require a person to purchase a subsequent product before getting a rebate, and that this rebate offer was therefore illegal. Now, it’s true under that California law, “‘[r]epresenting that the consumer will receive a rebate, discount, or other economic benefit, if the earning of the benefit is contingent on an event to occur subsequent to the consummation of the transaction’” is illegal, id. at *3, but as the Court put it, the “rebate program does not necessarily require a subsequent purchase, and thus the earning of the benefit is not ‘contingent on’ a subsequent purchase.”Id. at *4. The Legislature only “intended to prohibit merchants from advertising a rebate or discount when they conceal from consumers the conditions to be satisfied to receive the rebate or discount,”id. at *3—a false advertising consideration which is a reasonable enough concern, although I have difficulty thinking it’s that serious. But there was nothing concealed in this case—Mr. Kramer just thinks he should get a rebate on Quicken instead of TurboTax. Well, no, actually, since it’s a class action suit, Mr. Kramer and his lawyers think they should get a big settlement out of the Intuit Corporation....
The Mountain Democrat, (California’s oldest newspaper, you know) has a story about Placerville’s most prominent criminal defense lawyer, Steve Tapson:
Keller remembered a courtroom trial during which Tapson filled a helmet full of booze and pills then hit it with a pool cue to demonstrate the frame of mind his client was in when he became enraged enough after a Georgetown bar fight to run over a man with his car.
Tapson then downed the small amount of bourbon left in the bottle in the courtroom, with the jury watching, saying, “No use letting good booze go to waste.”
Ed Brayton shares my love of San Francisco. (I’ve never been to New Orleans, so I can’t confirm his observations of that city.) Meanwhile, USD law professor Donna Matias writes
oh, san francisco, my home town! and the queen anne—tom bell and i were married there near ‘bout 11 years ago next week. i know there are a bunch of nutty progressive liberals in san francisco, but i have such fond memories of my grownup days there, where you could be anything (except an opinionated libertarian or conservative) and no one really cared.
thanks for reviving old memories!
My pleasure, but you only say that because you’re a running dog tool of the capitalist exploiters.
(By the way, what is it with women not capitalizing in their email? I’m not complaining—I think it’s feminine and cute—but it’s so common. Do you all have an annual convention where you resolve not to capitalize in your emails?)
Update: carina, who does not capitalize her name, says that she thinks the habit is masculine and unattractive. Well, we must have biased, anecdotal evidence, then, because I’ve never known a man to regularly send me emails without capitals. Meanwhile, Prof. Matias writes
no, we girls don’t all gather at lilith fair to hug and talk about how we won’t capitalize in our email.
for some reason, i have always found lower case letters more aesthetically pleasing. in fact, I’ve been using all lower case letters in my signature at least since junior high, largely because i thought the capital cursive “d” and “m” were so fat and ugly (the d) and matronly (the m). in high school, i had a (government-school) civics teacher who deducted one point from my weekly quiz because i refused to sign my name using proper capitalization.
as for email, i consider it like speaking, and i don’t speak in capitals.
i guess you could say i’m anti-capital-ist, but not an anticapitalist.
Update 2:Crime & Federalism posts this ode to San Francisco. I must say, I only said I liked visiting San Francisco. I am quite happy I do not live there, and C&F’s post includes one reason why:
On the way to one bar we saw a homeless man peeing on the sidewalk…I stepped in human fecal matter; and a girl at the bar flashed us.… I…said, “In twenty minutes you have seen the soul of San Francisco.”
That sort of thing would get old fast. I prefer to live in quiet little Placerville and to visit the bustling weirdness of San Francisco. (At least I can find a parking space when I come home!)
Erin and I saw a UFO last night. Well, in the sense that we don’t know what it was—but we weren’t kidnapped or anything.
About 10 p.m. we were stargazing, and I noticed a particularly bright star almost directly overhead that was moving, slowly, then fast, then slowly again, mostly in an easterly direction, then sometimes south, then sometimes north, rarely to the east, but sometimes in curlicues. Nothing drastic—you wouldn’t normally notice. But sometimes it moved quite rapidly. Still, it never moved a lot—just like it was dancing around in little circles.
I first thought perhaps it was a balloon, rising up and lit from moonlight, or some other light source striking it from the side. That would explain its seeming curlicue motion, and the fact that it always stayed in pretty much the same general spot. It was too high to be a bird; I thought it might be a satellite at first, but that it swirled around like that, rather than moving in a straight line, and it was moving too radically to just be light bouncing off of a spinning satellite or the mirrors on the space station or something. The thing stayed, though—didn’t disappear as I would have expected if it were a balloon, or a high-altitude aircraft, which would eventually have to stop spinning in lazy circles. It kept going so long, in fact, that we got bored and lost interest. About 1 a.m., when I headed home, it was still moving, so when I got home I got out my telescope and took a look, to see if it was a space station or something. My house has much more light pollution, but I could still see the light—it’s brighter than magnitude 2, I’d say, and sits in the west-south-west, in a triangular formation with the other two stars being double stars. I checked the on-line night-sky projector, but it was too confusing for me to figure out what constellation that is.
Anyway, with the naked eye from my front yard it still appeared to move in this strange lazy pattern—but never enough to actually be out of alignment with the other stars. Through the telescope, there was no hint of motion at all relative to the other stars.
So my conclusion is, just atmospheric effects bending the light and causing an illusion of motion—very warm today, after several days of cool, so I’m guessing warm air at a high enough altitude, predominantly blowing in one direction (hence the predominant southern apparent drift of the star). But this is still hard to believe, first because the motion was so obvious, (Erin will confirm this if asked), and second, because no other star appeared to move. If there’s an atmospheric effect causing such radical apparent motion, you’d think that some other star would appear to move, but it was only this one.
If any more astronomy savvy person out there has a better explanation, I’m eager to hear it.
In myarticles on the CivilWar, I’ve taken care not to defend the particular tactics by which Lincoln or the Union Army prosecuted the war. I think there are serious problems with some of these tactics, of course. The suspension of habeas corpus, for example. The power to suspend habeas is recognized by the Constitution, but, as Chief Justice Roger Taney pointed out, it is in the section of the Constitution that deals with the powers of Congress, which seems a good reason to believe that Congress, and not the President, has the authority to suspend habeas. (But, then again, Congress ratified Lincoln’s suspension of habeas when it came back into session.) But notwithstanding these issues, it would be silly to expect that a Civil War would be carried on without serious violations of civil liberties. The American Revolution also inflicted serious harms on such liberties, and every war always will—this is why war is bad. But the badness does not disprove its necessity, or its ultimate justification in some cases.
Still, I can’t help but wonder why there’s always so much talk about Lincoln’s or the Union’s violations of civil rights during wartime. (Often examples are given which were not done on Lincoln’s orders or even with his permission, but by generals in the field, whose orders were sometimes overruled by Lincoln.) You rarely see an article talking about how the Confederacy violated people’s rights to dissent and so forth. Why is that? Now, perhaps it could be because everyone stipulates that the Confederacy was on the wrong side of the war. If I could be confident of that answer, I would not feel compelled to write further.
The Southern states were marked by extremely serious violations of civil liberties not only during, but before the war. As early as 1795, Virginia prohibited any person who alleged that he was wrongfully held as a slave from being represented by a lawyer of his choice. SeeRobert McColley, Slavery And Jeffersonian Virginia 160 (1964). The same law made it illegal to even advise a slave on the procedure of challenging the master’s authority. Three years later, Virginia made it illegal for abolitionists to serve on juries. Id. at 161. Later on, laws in southern states infringed on freedom of the press. The State of Georgia offered a price for William Lloyd Garrison’s head. In the 1830s, southerners got President Jackson’s backing for their war against the distribution of abolitionists pamphlets. SeeWilliam H. Freehling, The Road to Disunion: Secessionists At Bay 291-93 (1990) (“Armed with [Postmaster General Amos] Kendall’s instructions…southern postmasters cleansed the mail in the fall of 1835, unless mobs seized the task.”) Southern Congressmen, with strong Northern support, passed a gag rule which, for almost a decade, prohibited Americans from even sending anti-slavery petitions to their own Congress. I need not even attempt to catalogue what was done to any black person foolish enough to speak out against slavery in the south—or speak out for anything, come to think of it—or even to try to learn to read and write.
I think people overlook these basic violations of the civil liberties of both whites and blacks by the Southern states because such things are part and parcel of slavery. As Kenneth Stampp wrote, nonslaveholding southern whites
joined the mobs which sporadically dealt summary justice to lawless slaves, punished strangers suspected of being abolitionist agents, smashed antislavery presses, dispersed antislavery meetings, and drove into exile native-born Southerners guilty of heresy. As a group the nonslaveholders, urban and rural, were passionate conformists and demanded orthodoxy from their churches, their schools, and their public men. In this chilling atmosphere the southern intellectual with an interest in social theory or moral philosophy played a stultifying role. If he remained in the South, the barriers raised by slavery circumscribed the areas of speculative thought open to him. Behind the barriers he performed the rituals which signified his loyalty to the South…. [B]eyond the barriers [was] the dangerous morass of heterodoxy from which, once entered, there was no return.
Fine enough. But what about when the war came? Perhaps at that point, the south began to respect the civil liberties of its citizens? Here’s James McPherson:
In his February 22 inaugural address, [Jefferson Davis] had contrasted the Confederacy’s refusal “to impair personal liberty or the freedom of speech, of thought, or of the press” with Lincoln’s imprisonment without trial of “civil officers, peaceful citizens, and gentlewomen” in vile “Bastilles.” Davis overlooked the suppression of civil liberties in parts of the Confederacy, especially east Tennessee, where several hundred civilians languished in southern “Bastilles,” and five had been executed. Only five days after Davis’ inaugural address, Congress authorized him to suspend the writ of habeas corpus and declare martial law in areas that were in “danger of attack by the enemy.” Davis promptly proclaimed martial law in Richmond and other Virginia cities. He did so not only because of Union invasion but also because of rising crime and violence…. General John H. Winder...jailed without trial several “disloyal” citizens including two women and John Minor Botts, a venerable Virginia unionist and former U.S. congressman. The Richmond Whig branded these actions akin to Lincoln’s suppression of civil liberties, whereupon Winder threatened to shut down the newspaper. He never did so, but a Richmond diarist noted in April 1862 that several editors “have confessed a fear of having their offices closed, if they dare speak the sentiments struggling for utterance. It is, indeed, a reign of terror.”
So am I just making a tu quoque argument? No. Of course just because the south did equally bad things does not make Lincoln’s acts right. But the fact that self-proclaimed “libertarian” writers on this subject insist on emphasizing only the wrongs committed by the Union, and ignore entirely the wrongs committed by the Confederacy—all the while denying that the war was about slavery in the first place—tends, I think, to shift the image in readers’ minds. How often do these Doughface Libertarians repeat the charge that Lincoln instituted a military draft? And how often do they even acknowledge that the Confederacy also drafted its citizens? Readers constantly exposed to this curious bias come, I fear, to imagine that the North was some ravenous machine devouring the lives and liberties of the innocent southerners just wanting their independence. An image closer to the truth would be a Confederacy that was very nearly a police state, basing its political dreams on nauseating theories of racial supremacy and the perpetual enslavement of millions of innocent human beings—demanding their right to enslave others without interference—and finally being brought down by a Union which was itself weakened by racism and other internal fissures.
Let us please have at least some balance. There was a right side in the war—and it was emphatically not the South!