Three things you should never, ever do

A Connecticut man called the radio show of personal-finance guru Dave Ramsey, and inadvertently gave a master class in what not to do in a divorce:

1. Never, ever, sign away your interest in a matrimonial home without the other party refinancing the property.  This poor fellow signed a quit claim deed, but his ex-wife didn’t obtain a new mortgage.  Now she’s decided she’s not going to make the payments anymore, and the mortgage company is coming after him.

There is a court order stating that she must refinance and have his name removed from the covenants of the mortgage, so she may be in contempt of court.  But it would have been much easier if the caller ensured that this was done as a condition of him signing the deed.

So why didn’t his lawyer catch this?  Well, about that…

2. Never “share” a family lawyer with the other party.  Even if both parties apparently agree on all the major issues, something inevitably comes up which they hadn’t thought about until a lawyer points it out.  And it’s sadly not uncommon for one party to be coerced or bullied into a blatantly unfair, one-sided “agreement.”

The lawyer’s job is to represent your interests.  By definition, your interests and those of your ex are not the same.  There is an inherent conflict of interest.  Had this guy retained his own legal counsel, he likely wouldn’t have gotten into this mess in the first place.

The caller almost certainly has the law on his side, but he remains reluctant to take the matter back to court.  Which raises my third point:

3. Don’t “give in” to the other party in the hopes of “keeping the peace.”  The caller tells Dave that he isn’t sure taking legal action “is the best decision for [his] children,” because he’s concerned about “keeping the peace between the two households.”

Ramsey responds, “I missed the part where she cares about that.”

Sadly, I’ve seen it many times: a client comes into my office to discuss the other party’s settlement proposal, I point out some blatant deficiencies, but he or she wants to agree “just to get it over with.”

A separation agreement or consent order might be the most important document you will ever sign in your life.  If you accede to terms you don’t really agree with, you – and your children – may be stuck with them indefinitely.  You can make a court application to vary an order or agreement, but the burden is on you to show that a “material change of circumstances” has occurred.  If you knew about these potential problems when you made the agreement, it’s that much harder for you to meet the test.

When one party folds and just accepts what the other side demands, it’s usually shows a severe imbalance in power between the parties.  (And it’s not always the female partner being coerced by the man – I’ve worked on several cases where it’s the husband who just wants to “get it over with,” not to mention some same-sex relationship cases.)  Rest assured, the party dictating the terms of agreement couldn’t care less about your feelings.

 

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Why are Kinder Eggs banned from America?

It actually happened: Piers Morgan made a good point for once.

America’s founding fathers, in their wisdom, never saw fit to include “the right to low-quality European chocolate with cheap toys you’ll be stepping on for weeks thereafter” in the Bill of Rights.  But why can’t Kinder Surprise Eggs be sold in the United States, anyway?

As with most American stories, the answer involves a lot of corporate intrigue and legal wrangling:

Since production began in 1974, the company has sold more than 30 billion Kinder Surprise eggs around the world. But in the United States, they are prohibited by Section 402 (d)(1) of the 1938 Federal Food, Drug and Cosmetic Act, which bans any candies with non-nutritive objects “embedded” inside them.

[…]

Though the original law is nearly a century old, it came up for debate in the 1990s. In August, 1997, Kreiner Imports Inc. of Chicago said it would voluntarily recall 5,000 Kinder eggs to cooperate with the U.S. Consumer Product Safety Commission (CPSC.)

It was the same year that Nestle USA Inc and Mars Inc. went to war over a copycat product. The Nestle Magic was a hollow chocolate globe surrounding a plastic shell with a Disney toy inside.

Though the Consumer Product Safety Commission ruled the candy didn’t violate its safety regulations, the Food and Drug Administration wrote to Nestle in July 1997 saying it violated the 1938 Food and Drug Act.

Leading the charge was an elite group of consumer lobbyists known for taking on big adversaries. Soon after Carol Tucker Foreman criticized the product, supermarket chain Stop and Shop announced it would no longer sell them. Also on the team was Connecticut State Atty. Gen. Richard Blumenthal, who called on officials to address the issue “before Nestle Magic could become Nestle tragic,” according to the L.A. Times. [Interestingly, Blumenthal is now one of the Senate’s leading voices in favor of gun control. – DJP]

Though Mars Inc. representatives originally denied involvement in the effort,  the company later acknowledged that it had picked up the tab, according to the Times.

In September 1997, Mars executives wrote a letter to the Food and Drug Administration saying it had joined critics because “we care about the public interest,” according to the Washington Post. A month later, Nestle announced that it would discontinue sales of its competing product, telling the L.A. Times that the company felt its candy was safe but took it off the market due to “an unresolved technical, legal problem.”

In 2013, Mars Inc. spent $1.99 million on lobbying efforts, according to data from the Senate Office of Public Records that was compiled by OpenSecrets.org. Nestle spent a total of $4.8 million in the same year, with the vast majority going toward food processing and sales.

The 1997 fight wasn’t the first time toy-filled chocolate eggs came under fire. In 1989, the candies were discussed in British Parliament after a child died from choking on a small piece.

The good news for American children, if not their parents, is that a similar Kinder product will soon be available in their country:

In 2018, Ferrero International will release the “Kinder Joy” in America. Unlike the Kinder Surprise it has two distinct, sealed halves. One half contains the mystery toy, and the other half is filled with chocolate, milk-crème, and chocolate wafer bites. This tweak of having the toy and chocolate packaged in separate sections makes this version of the Kinder egg adhere to the FDA regulation.

The Kinder Joy was originally developed to sell the chocolate treats in warm-weather markets (such as India, China and Korea) where the traditional exposed chocolate egg melted.

It’s better than nothing, I guess, but if President Trump wants to get rid of allegedly useless and outdated regulations, I know where he can start.

 

The T-word

In light of the deadliest mass shooting in modern American history, by a 64 year-old white man whose political or religious motivation, if any, remains unknown, I’ve seen much of this kind of thing on social media:

Because when you want a nuanced and informed discussion of legal issues and systemic racism, you turn to Twitter.

Huffpost explains why law enforcement officials are avoiding the T-word for the time being:

There’s a reason that law enforcement authorities are hesitant to label an attack like the one in Las Vegas as terrorism. Specific federal statutes target international terrorism and acts associated with groups that the U.S. government has labeled as foreign terrorist organizations. But there’s no specific federal statute aimed at acts of domestic terrorism, meaning acts inspired or carried out on behalf of domestic extremist organizations. Some federal laws are aimed at particular acts that might be carried out for terrorist purposes, like hijacking planes or assassinating government officials, but mass shootings are not on that list.

So had Stephen Paddock lived, it’s unlikely that he would have faced federal terrorism charges. And unless authorities turn up evidence that his attack was motivated by hatred for a specific racial group ― which is unlikely, given that he fired indiscriminately into a crowd of thousands ― there’s a good chance he wouldn’t have faced any federal charges at all.

[…]

…it’s not clear the Las Vegas massacre would qualify as an act of domestic terrorism. There is a federal definition of the term ― yes, even though there isn’t a charge. An act of domestic terrorism must be intended to intimidate or coerce a civilian population, to influence a government policy by intimidation or coercion, or to affect the conduct of government by mass destruction, assassination or kidnapping. We don’t know yet if Paddock had any of those goals in mind.

There is a Nevada state law which may define the Vegas massacre as terrorism, but not a federal one.  The ACLU, notably, is wary of what would actually be targeted by a specific law against “domestic terrorism”:

In the U.S., there’s still a great deal of reluctance to create a criminal charge of domestic terrorism.

“It’s an incredibly broad label,” Hina Shamsi, director of the national security project at the American Civil Liberties Union, told NPR in August following the white nationalist rally car attack in Charlottesville, Virginia.

“There’s a real danger of the government criminalizing ideology, theology and beliefs rather than focusing on specific criminal acts,” she said.

According to Shamsi, the ACLU opposes any such law, because it believes it infringes on free speech and religion and could be politicized and used against groups like anti-war groups or environmental activists.

Reason’s Ed Krayewski made a similar point after Charlottesville:

The FBI has specific legal criteria it uses to define international terrorism, domestic terrorism, and the federal crime of terrorism. To be terrorist, an act must appear to intend to “intimidate or coerce a civilian population; to influence the policy of a government by intimidation or coercion; or to affect the conduct of a government by mass destruction, assassination, or kidnapping.” The federal offense is defined as a criminal act “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.”

In political rhetoric, by contrast, the word is frequently deployed as a thought-terminating cliché—a way to promote the idea that some military or police activity should be permitted to occur outside of the constraints of the Constitution, particularly against certain classes of people. In the last few decades, and particularly since 9/11, those classes of people have tended to be Muslim.

[…]

At the beginning of his term as attorney general, Holder sought to treat terrorism as a law enforcement issue. This was the right instinct. Terrorists are criminals with political ideas, but they are still criminals. The term terrorism is used to strip those criminals—and many noncriminals—of longstanding legal protections. And its ultimate effect has been to make it politically harder to defend the idea of treating “terrorism” as a law enforcement issue, often while creating the space for even more terrorism.

The Shawn Kings of the world want the definition of “terrorism” to encompass more white guys, but they aren’t the only ones who will be caught up in the net.  They should be very careful what they wish for.

Should they stay or should they go?

I’ve gone back and forth on the question of whether Trump’s top officials and cabinet members should resign in protest, or stay and try to keep him as under control as possible.

Jamie Kirchick makes a strong argument for the latter:

…now that Trump is president, and barring his unlikely impeachment or resignation, it is essential that he be joined in the cockpit by competent, experienced, patriotic individuals, who, unlike their Commander-in-Chief, put the best interests of the country before their selfish and venal desires. To the extent they can, they need to wrestle Trump from the controls—perhaps by convincing him to be a largely ceremonial president. At the very least, they can lessen the damage Trump can do. Ultimately, it is better to have them there than to have Trump flying alone. Which is why it’s unfortunate to see commentators urging high-ranking administration staffers to resign.

[…]

…Unlike newspaper columnists and Twitter denizens, people working for the President of the United States do not have the luxury of sniping at him from the safety of the sidelines. Joe Scarborough, who transformed himself from one of Trump’s loudest media cheerleaders to moralizing scold without expressing even a scintilla of atonement in between, is calling for mass resignations.

Who does these pundits think will fill the positions of White House Chief of Staff and Defense Secretary were Kelly and Mattis to go? Very likely the kinds of conspiracy theorists and nationalists whom McMaster has been tirelessly cleaning out of the National Security Council, and who would have thrived were his predecessor Mike Flynn still around. Indeed, for all the administration backstabbing and high drama that has filled headlines over the past several months, such palace intrigue is far better than the alternative: an administration purged of reasonable individuals and replaced by Bannonites.

It is precisely when things get so bad that we want trustworthy individuals to serve. With any hope, they will be able to land this administration to safety.

If we make it through this alive, the tell-all books about the Trump Administration will be amazing.

A great weekend for online justice

In addition to the woman killed and others injured at Charlottesville, two innocent people had their lives turned upside down by the online mob.

First, “alt-right” supporters (and even some mainstream conservatives) fingered the wrong guy as the owner/driver who mowed down demonstrators with his car:

Prominent alt-right media personalities and websites framed a Michigan man that one labeled an “anti-Trump druggie” for Saturday’s car attack on anti-racist protesters in Charlottesville, Va that killed one and injured 19 others.

Police said the suspect in the incident is 20-year-old James Alex Fields Jr. from Maumee, Ohio. That is not the name of the man identified by the websites Gateway Pundit and GotNews earlier in the day.

[…]

…readers flocked to the Facebook page of the Michigan man who was falsely accused of the homicide. Users finally began to slow the harassment on his page when he posted to Facebook several times while the suspect of the car attack was in custody.
The wrongly accused man has since set his Facebook page to private.

Not to be outdone, the anti-Trump brigades then doxxed an Arkansas university professor as one of the far-right Tiki torch Nazis:

A man at the rally had been photographed wearing an “Arkansas Engineering” shirt, and the amateur investigators found a photo of Mr. Quinn that looked somewhat similar. They were both bearded and had similar builds.

By internet frenzy standards, that was proof enough.

Mr. Quinn, who runs a laboratory dedicated to wound-healing research, was quickly flooded with vulgar messages on Twitter and Instagram, he said in an interview on Monday. Countless people he had never met demanded he lose his job, accused him of racism and posted his home address on social networks.

Fearing for their safety, he and his wife stayed with a colleague this weekend.

[…]

People who then try to correct the record often feel drowned out by the false information.

Mark Popejoy, an art director in Bentonville, Ark., attempted to correct dozens of Twitter accounts that had inaccurately pegged Mr. Quinn as the Charlottesville rally participant. He would point out that the University of Arkansas had confirmed that Mr. Quinn was not involved, and ask that the Twitter users delete their erroneous tweets.

While some appreciated the new information, others adamantly refused to change their minds, he said in an interview on Monday. He said he didn’t know Mr. Quinn but sympathized with his position.

“While some appreciated the new information, others adamantly refused to change their minds” should be Twitter’s new motto.

Even the bad people have rights

If you’re going to encourage people to punch Nazis, at least give us a definition of “Nazis.”  We can all agree the guy walking around with a swastika flag is the genuine article, but many people on twitter hold to a definition much more…expansive than that.

Example: people are seriously making the argument that the American Civil Liberties Union is a pro-Nazi organization because of its free-speech activism:

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I don’t agree with Glenn Greenwald very often, but he is absolutely right to note that the same people who believe the United States government is racist and fascist should also have the power to decide what speech shall be allowed:

Let’s begin with one critical fact: the ACLU has always defended, and still does defend, the free speech rights of the most marginalized left-wing activists, from Communists and atheists, to hard-core war opponents and pacifists, and has taken up numerous free speech causes supported by many on the left and loathed by the right, including defending the rights of Muslim extremists and even NAMBLA. That’s true of any consistent civil liberties advocate: we defend the rights of those with views we hate in order to strengthen our defense of the rights of those who are most marginalizedand vulnerable in society.

The ACLU is primarily a legal organization. That means they defend people’s rights in court, under principles of law. One of the governing tools of courts is precedent: the application of prior rulings to current cases. If the ACLU allows the state to suppress the free speech rights of white nationalists or neo-Nazi groups – by refusing to defend such groups when the state tries to censor them or by allowing them to have inadequate representation – then the ACLU’s ability to defend the free speech rights of groups and people that you like will be severely compromised.

[…]

Beyond that, the contradiction embedded in this anti-free-speech advocacy is so glaring. For many of those attacking the ACLU here, it is a staple of their worldview that the U.S. is a racist and fascist country and that those who control the government are right-wing authoritarians. There is substantial validity to that view.

Why, then, would people who believe that simultaneously want to vest in these same fascism-supporting authorities the power to ban and outlaw ideas they dislike? Why would you possibly think that the List of Prohibited Ideas will end up including the views you hate rather than the views you support? Most levers of state power are now controlled by the Republican Party, while many Democrats have also advocated the criminalization of left-wing views. Why would you trust those officials to suppress free speech in ways that you find just and noble, rather than oppressive?

As I wrote in my comprehensive 2013 defense of free speech at the Guardian, this overflowing naïveté is what I’ve always found most confounding about the left-wing case against universal free speech: this belief that state authorities will exercise this power of censorship magnanimously and responsibly: “At any given point, any speech that subverts state authority can be deemed – legitimately so – to be hateful and even tending to incite violence.”

At best, this position is naive.  At worst, on the way-out-there fringes of the far left, it’s about someday seizing power and using it against the rest of us.

Like many American ideals, unfortunately, the right to freedom of expression is not equally protected in practice.  The Atlantic‘s Adam Serwer, in a thoughtful twitter essay, notes that predominantly African-American demonstrators in Ferguson were allowed far less leeway than the white supremacists of Charlottesville.

That’s why the principled liberal position – that of the ACLU – is that freedom of expression is for everyone.  Those damning the ACLU as Nazi collaborators, whatever they may be, are not remotely liberal.

 

The Nazis know

I’m often skeptical when those on the left accuse conservative politicians of using “dog whistle” rhetoric to appeal to racist, extreme-right supporters.  It can be, and often is, a non-falsifiable smear.

But President Trump’s disgraceful, amoral, mealy-mouthed “condemnation” of yesterday’s violence in Charlottesville, Virginia, leaves no room for doubt when you read the neo-Nazi Daily Stormer’s grateful response:

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I despise the “Antifa” movement, which promotes – often violently – its own brand of authoritarianism.  But the radical right actually has connections to the most powerful person on Earth.  Right now, that should be everyone’s top priority.

The founder of The Daily Stormer, interestingly, is bravely running away from a lawsuit launched by woman he encouraged his followers to harass:

Now Gersh is taking on the man who started it all. In a federal lawsuit filed in April, Gersh accuses Andrew Anglin, who publishes the neo-Nazi Daily Stormer website, of invading her privacy, intentionally inflicting emotional distress and violating Montana’s Anti-Intimidation Act by organizing more than 700 instances of harassment since December 2016. The Southern Poverty Law Center, a civil rights group, is representing Gersh.

[…]

How the case will turn out remains to be seen, in part because SPLC lawyers can’t find Anglin. Dinielli, Gersh’s lawyer, said his team hasn’t been able to serve Anglin and he hasn’t stepped forward to receive the complaint. A November 2016 article in HuffPost said Anglin “appeared” to be in Berlin, while other reports have placed him in Russia and Ohio. This week, CNN reported that Anglin said he now lives in Lagos, Nigeria.

Instead of staying, fighting and litigating the potentially important freedom-of-expression issues raised by this lawsuit, the brave neo-Nazi hero scampers away and hides like a cockroach.  It’s so, so perfect.