and in conclusion...

I finally acquired an attorney, from a friend's recommendation, and who is delightful. They opened the conversation with "Okay, so I've read the demand letter, and I've read the contracts...and to be honest, I'm a little confused about the letter in relation to the contracts, so maybe you can give me an overview."

Because, yes, when someone writes a settlement demand letter alleging some sort of contract fraud, but fails to mention a single line of the contract, or any other piece of evidence, that is some Hail-Mary scammy bullshit right there. The response letter is magnificent, with the attorney even finding one or two juicy tidbits I'd forgotten, like the clauses that say "we all agree we have all the information we need, and we don't all have the same information, and that's fine," or "we have our own sources of information independent of Chris, and we're happy with what we know."

Hapless Stock Guys know this, of course, since they provided the contract and drove the whole process, soup to nuts; they screwed up and blew a hole in their balance sheet, and the ROI of having an attorney spend an hour sending me a threatening letter is so huge it doesn't make sense not to try, even knowing I'm the kind of person who quoted the contract back to them from memory, without prep.

It doesn't mean they're not assholes, though.

only keep going.

This was the second Christmas without Tim, coming up fast on two years since he departed. When he died, I hadn't seen him in several years, though we'd talked to catch up a bit right after Christmas, and it's both irrational and undeniably real to be so affected by the calendar. It's annoying, is what it is. I think about Tim all the time, in all kinds of contexts, and not for a moment does his suicide leave my awareness. Why should I feel the pressure building in my thoughts as December counts away? (My therapist has a technical term for a conditioned response to a single event, but I didn't take notes.)

It builds, then Christmas releases some of it, then some more building, and finally the first week of the New Year has passed, and it's back to the regular slog. I'll need a job at some point, I guess.

The Hapless Stock Guys, who flubbed everything by overpricing my shares, are now threatening to sue me because I knew about a pre-IPO stock split and didn't tell them. I didn't know, as it happens, and there are emails to that effect at the time, and if I'd known, it's likely that telling them would have violated my NDA. Plus, I am the descendant of many lawyers, and so I knew the contract has many gems like this one:

5.3. Purchaser and Seller represent to each other that on the date hereof and as of the Transfer Date:

(i) they are entering into this Agreement voluntarily and they are not under any form of duress; 

(ii) they have had the opportunity to review the form of this Agreement with their legal and tax counsel and/or other advisors prior to executing it and are fully satisfied that its terms are fair and that it effects, and at all times hereunder will effect, a fair exchange of value; 

(iii) they are familiar with, or have been advised by their respective counsel of, applicable securities laws regarding the Forward Transaction, and are responsible for ensuring that their entry into the Forward Transaction is in compliance with such laws; 

(iv) they are not relying on any express or implied legal or investment advice or information from the other with respect to the prospects or value of the Company or the Shares or any other aspect of the Forward Transaction; 

(v) they acknowledge and accept that the other party to the Forward Transaction may have material, non-public information about the Company that they do not have and which has not been disclosed; 

(vi) they hereby irrevocably waive any right to, and agree to refrain from pursuing against the other party to the Forward Transaction or against any other party, any and all actions, suits, litigations, arbitrations, proceedings, investigations, claims or liabilities of whatever nature (including but not limited to under SEC Rule 10b-5 or similar laws) that relate to the other party’s potential possession of material, non-public information about the Company; and 

(vii) other than as explicitly stated herein, they have not relied upon any other representation or warranty of the other, or any third party.

So they would first have to convince a judge that something merits nullifying extraordinarily explicit and broad clauses like these, just to get a hearing, then convince a judge or jury that I knew a variety of insider things that I didn't (like the stock split), or that I'd sold some stock earlier at N/2 the price they paid me, and thus I knew it was only worth N/2. (The stock I'd sold earlier was waaaay below N/2.) At the end, if somehow they get to a trial (they won't), they'll end up arguing that a techie middle manager, with indifferent financial skills, somehow conned two guys who make some phone calls and activate investment groups with millions of dollars, and who signed the contract that they themselves provided, which makes all of it ridiculous, and then they'll have to pay my legal fees and expenses.

That sort of interrupted my week of moping about or being reflective. I've never gotten a legal nastygram before! It's really unpleasant.

One more day until Tim's yahrzeit. The new year can start on Monday.

Prohibition and historical perspective

I just finished reading Daniel Okrent's Last Call, which is a wonderful, wonderful book, with a brilliantly droll turn of phrase about every four paragraphs. The subtitle is The Rise and Fall of Prohibition, and the thrust of the narrative is that Prohibition altered America in ways reverberating down to the present, which we have now mostly forgotten. Some are cute, like the fact that "scofflaw" was coined by a newspaper contest to come up with a word for someone who defied Prohibition. Others are a bit more intense and immediately relevant.

For example, some of us are now, rightly, concerned with the expansion of government surveillance, unchecked by the courts; and the Fourth Amendment has been a vague shadow of its original self for a long time now: e.g. your refusal to take a breathalyzer test becomes probable cause to arrest you (or in the new strategy, there's a judge on-site to issue a warrant for a blood sample). And yet, wiretapping didn't require a warrant, from the first time the Supreme Court considered it in 1928's Olmstead v. United States, until they overturned it in 1967's Katz v. United States. Olmstead was a 5-4 ruling, and Justice Louis Brandeis's dissent is now famous, as Supreme Court dissents go, being cited in pretty much every pro-privacy decision of the past 50 years:

The protection guaranteed by the Amendments is much broader in scope. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone -- the most comprehensive of rights, and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. [emphasis mine]

So this case, coming out of Prohibition, has moved along all kinds of decisions that have shaped our world, like Griswold v. Connecticut (birth control), Miranda v. Arizona (Miranda rights), Katz mentioned above, and Roe v. Wade. But it took 39 years to get from Olmstead to Katz; 39 years for the Court to decide that another area of technology was subject to rights of privacy and protection from search.

Knowing that we've had a previous period of warrantless wiretapping adds some perspective to our current one, doesn't it? Not that it's not bad, but that it's not unique: it changed once, and it can change again.

Or, take the Jones Act of 1929. This escalated most Prohibition violations from misdemeanors to felonies, maximum sentences for a first offense from 6 months to 5 years, and bumped fines from $1000 up to $10,000. Failure to report a felony also became a felony, so if you happened to see someone transporting alcohol (and it was hard not to), you were subject to 3 years in federal prison. This was part of a spasm of draconian enforcement in the years leading up to Repeal, when people refusing to acknowledge that Prohibition couldn't work focused on how weakly enforced it was, rather than how unenforceable.

On March 29, 1929, six officers, "'armed with sawed off shotguns, pistols, machine guns, bulletproof vests, and tear bombs'"

"invaded the home of Peter DeKing, a suspected bootlegger. One of them clubbed him over the head with the butt of a shotgun. As he dropped senseless, his wife Lillian sprang to his side. A blast from the shotgun killed her. When told of the atrocity, Ella Boole of the WCTU [Women's Christian Temperance Union] remarked, 'Well, she was evading the law wasn't she?" [quoted in Drug Policy and Human Nature]

In Michigan, where the state legislature had passed a stricter-than-federal enforcement law, Etta Mae Miller, mother of 10 whose husband was already in jail, sold two pints of liquor to an undercover cop, and since it was her fourth violation, she was put in jail for life.

The War on Drugs has made this sort of thing routine, imprisoning endless millions of Americans and producing locally-controlled paramilitary police forces who constantly screw up and kill innnocent people (without consequences, of course).

Photo by Flickr user kchrist/Kenn Wilson

Those right there are two officers from Bay Area Rapid Transit, the light rail system, which to my knowledge has never experienced an incident requiring machine guns. In addition to being over-armed, they're also under-supervised, as we learned with the Oscar Grant murder.

A few years ago, when I read America Afire: Adams, Jefferson, and the Revolutionary Election of 1800, I thought, "Wow, the election of 2000 looks pretty calm and civilized by comparison." For some reason I learned that we'd had worse elections, but I didn't continue on to think that we've had really bad everything at various times.

America has lots of problems right now, and lots of stuff we need to fix, and directions that we need to change. I wonder if we lived longer, long enough to see everything more than once, would we be wiser? Would we understand that the way things are, good or bad, has happened before in some form or another, and will happen again, and are going to change? Or is it a human thing, and our history would follow other cycles longer than a human lifetime? Maybe we're inherently short-sighted. Me, I'm going to relax a little bit. We've been here before, and it's lame; but it will change.

more details on my Prop 8 questions

Shannon Minter, the actual lawyer they got to answer people's Prop 8 trial questions, responded in more detail to the stuff I asked, about the previous case law around gay marriage that all went unmentioned in Judge Walker's decision. His response to my question directly:

It is true there are a bunch of older state cases upholding marriage bans-as well as a handful of more recent ones (sadly, the New York Court of Appeals, the Maryland Court of Appeals, and the Washington Supreme Court). But Judge Walker is not bound by any state court decisions. There are very few federal cases considering the validity of marriage bans-and virtually none decided by the federal courts of appeal. In a nutshell, Judge Walker had to decide the questions presented to him without relying on an binding precedent that is directly on point, because there isn't any. He did the right thing by presenting his reasoning about the legal issues presented. It would not have served any purpose for him to spell out why he disagreed with the reasoning in other cases that were not binding on him in the first place.

So, there it is. Here's his response to someone else on a similar topic:

I think Baker v Nelson is a real red herring being waved around by the other side in a desperate attempt to recover some lost media ground after Judge Walker's amazing decision! In 1971, the MN Supreme Court upheld MN's marriage ban. The gay couple who brought the case asked SCOTUS to review the decision. At that time, the Supreme Court HAD to take any case that presented a federal constitutional question. In 1972, the Supreme Court denied the case on the ground that it did not present a substantial federal question. But a heck of a lot has changed since then! in 1972, the supreme court had not yet held that laws that discriminate against women were subject to a heightened level of review. The court had not struck down Colorado's anti-gay ballot initiative in Romer, or held that individuals have a protected right to be in a same-sex relationship in Lawrence. So much has changed that any precedential value that Baker v. Nelson has, is exceedingly small. And in any case, the question presented by the Prop 8 case is a new one not considered in Baker: can the people of a state first permit a group to enjoy a fundamental right, and then take that right away based on a bare desire to send the message that the group is inferior?

All righty, then.

(UPDATE: More stuff relevant to my questions, in this response to an anti-equality op-ed by Edwin Meese.)

awkward

In the wake of the Prop 8 decision I went and re-read summaries of Griswold v. Connecticut (the first to dig a right to privacy out of the Constitution), Roe v. Wade (right of privacy gives the right to have an abortion), and Lawrence v. Texas (right to privacy includes sex).

Now, I do believe we should dig a right to privacy out of somewhere in the Constitution, and these are all really important decisions and I'm glad we have them. Everyone deserves access to contraception, women deserve full rights to make decisions about their bodies (not that Roe gives them that exactly, but whatever), and consenting adults should get to have whatever sex we want. The people who hate those decisions are frankly terrifying, with their violent anti-government and anti-liberal rhetoric, and their actions showing that their truly held principle is that the government should enforce the rules of their sub-sect of Christianity. So I'm okay with being stuck with the rulings.

That said, the legal reasoning is a little...weird. I guess you can blame it on the Ninth Amendment, which says:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

To me, this seems to say pretty clearly that just because there are rights enumerated in the Constitution, that doesn't mean that's all the rights we have. I think the writings of the Founders back this up, but for some reason, it seems to get a narrower reading. But for some reason, courts have thrown up their hands and said "We don't know what this means, so we better not mess with it much." (Any lawyers reading, I'd love some help with understanding it.)

The softened shibboleth for "abortion is wrong" on the Right is often "I believe Roe was wrongly decided." There's no denying it's a sort of a tangle, which leaves me in the awkward position of saying "You might be right, except your preferred outcome is INSANE." Unfortunately, that level of honesty is perilous in a discussion with people who only see absolutes.

ouch, he's gonna hate that

On page 63 of Perry v. Schwarzenegger, Judge Walker is quoting things in the Finding of Fact to show that the government's interest in supporting marriage is not reliant on procreation. Like this:

"If moral disapprobation of homosexual conduct is 'no legitimate state interest' for purposes of proscribing that conduct...what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising 'the liberty protected by the Constitution'? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry."

That, of course, is Justice Antonin "Homosexual Agenda" Scalia, dissenting in Lawrence v. Texas, the landmark 2003 ruling which decriminalized all private sex between consenting adults.

Talk about unintended consequences. The original premise alongside Scalia's statement of fact is that gay marriage is too absurd and horrible to contemplate. Now that context has changed, but the statement of fact remains and is still true. Oops.

Prop 8 gets mightily overturned

Bye-bye Prop 8! The homophobic cohort schemed and slimed their way into amending California's constitution--which isn't at all difficult, by the way, be careful where you sneeze or you'll amend the state constitution by accident. The lawsuits started flying immediately, but before the "OMG TEH GAY" contingent won a temporary victory, 18,000 gay couples had received marriage licenses. Said contingent immediately violated their promise not to try and have those marriages invalidated. Good work, guys! It must be nice to have a God of love and forgiveness who hates all the same people you do.

Today, however, Judge Vaughn Walker of the Northern California District Court--

I'm sorry, I have to interject here with a Wikipedia quote.

Walker's original nomination to the bench by Ronald Reagan in 1987 stalled in the Senate Judiciary Committee because of controversy over his representation of the United States Olympic Committee in a lawsuit that prohibited the use of the title "Gay Olympics". Two dozen House Democrats, led by Rep. Nancy Pelosi of San Francisco, opposed his nomination because of his alleged "insensitivity" to gays and the poor. Years later, the San Francisco Chronicle noted the irony of this opposition due to Walker's sexual orientation.

Right, so the judge is an openly gay Reagan appointee. Moving on.

The case is Perry v. Schwarzenegger, and here's why it's awesome:

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.

Here's the PDF of the full decision. Here's a few more juicy quotes from Talking Points Memo. And here's a CNN bit describing the next steps through the appeals process.

I can see where the Supreme Court wouldn't want to touch this with a ten-foot pole: this would be the defining decision on gay rights. I imagine the Ninth Circuit will let the decision stand, and then the Supreme Court decides whether to hear it or not. If they don't, it becomes binding precedent for the Ninth Circuit, and just strongly advisory for the other twelve circuits (most of which are far more politically conservative than the Ninth). They might not hear it: I can see them not wanting to touch this with a ten-foot pole, and they sometimes like to have conflicting circuit court decisions before they hear an issue.

Who knows? In the meantime, it's a strongly-worded, heartwarming decision.

(UPDATE: FYI, the "God hates all the same people you do" isn't original to me. It's an anecdote from Anne Lamott, who seems to me more quotable than readable..)

crazy crazy crazy

The New York Times investigates the small-town courts of New York State, where justices are elected, and don't have to have any legal training, or even a high school diploma. Also, no oversight and very little accountability.

What. The. Fuck.