11:30 PM -:- Posted by Allen    

"Making Law"

I participate in a private discussion group that was founded to brainstorm responses and defenses to legal aggression by government against the individual or his money/property.

Recently we touched on the "fruit of the poisonous tree" (exclusionary rule) doctrine. The question was raised whether someone could use it to prohibit the use of employment forms on grounds that they are obtained by fraud and misrepresentation.

Could be. But then, I have the following thoughts as well.

First, businesses are not cops, so unless you can show that they are acting as official agents of a police power you'll run into the argument that what you give them is voluntarily given and not to a cop, so it's not covered.

Also, the "exclusionary rule", which is what we've been talking about, does not apply in civil matters.

Civil matters do not involve rights against police powers, such as what most of the Bill of Rights is about. Civil matters are more about contracts and constructions. An example of a construction is the idea of liability for negligence: you don't build a big fire in your yard and leave it unattended while you go across town to a movie, and then get to complain when your neighbor's insurance company send you the bill for the damages when his house burns down.

It's when you get into contracts that this issue gets interesting. First, all contracts by definition are voluntary and informed. A coerced contract is void, and a contract made upon withheld information is voidable, maybe even punishable.

Of course, before you can base anything on contracts you must first be able to show that the area in question involves contracts to begin with. If the area is compulsory, then it does not. So if there is a legitimate statute package requiring you to do something, there is no contract between you and the government to do it, and you don't have a choice; you just have to do it.

It's not always so black and white, though, as when there are laws regulating restrictions and mandates on certain activities: you are not bound by those laws unless and until you enter into those activities. Then the question becomes whether those activities are proper objects of law. Or, in rare cases, whether you are a member of an excluded class who may not be required to conform to that law.

I could go on and on. But where would it go? An outline of law in general? I loved teaching it, but I've found that you can't teach it effectively outside a structured class-style setting.

Worse, none of it is relevant while cops are selected for mediocre intelligence, prosecutors are selected for malicious creativity, judges are selected for their ability to suck wind, and citizens deselect themselves through illiteracy.

You end up in court with a guy charged with "singing in public" under a commercial regulation against "public singing" without a license, with the police failing to disclose that the public singing law is a regulation of paid entertainment in commercial establishments such as restaurants, dinner houses, theatres, coffee shops and cafes; prosecutors looking to make a name by pulling off the next astounding application of law; judges worrying about which lawyer to offend the least (or how to stick it to the arrogant doesn't-think-he-needs-us pro se), and a citizen who can't read the law beyond the words used to write it and sees clearly that it is a law about public singing but argues completely off-point that he has a right to sing.

It's a dark and dumb world where no one discerns that public singing and singing in public are not at all the same thing.

I believe that there is only one issue in 97% of all cases brought against individuals by the federal government, and 82% of all cases brought against individuals by state and local governments: jurisdiction.

Does the law speak to the activity being done or prohibited within the circumstances of the specific incident, and does it reach the individual committing or failing to commit the action.

I walk down the street. No law says I can't. A law says people under 18 can't, if it's after midnight and before 6AM. Am I under 18? Yes? Then the law covers me? Yes? Always? No? Not if I'm on my way home from work. In that case, I'm a member of an excluded class; excluded within specific circumstances.

Some people need a driver license to do what they do with cars and trucks, boats and airplanes; some don't.

Some people get their money from taxable activities; some don't. Some people get some of their money from taxable activities and the rest elsewhere.

The burden of proof is ALWAYS on the claimant. In most cases, that's the accuser.

Tax agency says you have income. Maybe you do, maybe you don't. But did they say it was taxable income? And did they say why it could be taxed? Or did they just say, you had income, you owe tax. The one thing does not lead inevitably to the other. Make them prove a direct connection.

But avoid making a declaration about anything you did being okay, because now you're the claimant and the burden of proof shifts to you on that point, unless you're really sharp and a great enough legal tapdancer to get back off the thin ice and re-spin things back toward their proper burden of proof.

Company won't hire you without you fill in a W9? Sue them for fraud, on grounds that they turned out to try to coerce you into filing papers authorizing them to pay you less than was agreed. Get really creative with a local Bait-n-Switch law, arguing that while they weren't selling you an inferior car after luring you in with a good but unavailable one, they were trying to coerce you into accepting an inferior paycheck after luring you in with a better but in fact unavailable salary. Argue that the principle is the same, and that the law should apply to all instances where someone is promised one thing but only delivered something less. Most judges are smart enough to see the logic but far too stupid to discern the sophistry, and you just might get it on. Then you have precedent, and the legal lemmings will suck up to it forever. And the prosecutor will smile and shake your hand and wish he could be you.

I know what you're thinking: bait-and-switch laws only exist in vehicle and retail codes.

Even if that's true, so what? Bait-n-switch is an act of fraud. Fraud is prohibited everywhere. I'm just giving it a name.

But what if your retarded state doesn't have any bait-n-switch laws at all? No problem.

Go federal.

Any business that sells across a state line (can you say, 'web site'?), or deals with interstate suppliers is attachable to federal jurisdiction.

What law do you use? Why, the Federal Bait-n-Switch law, of course:

[Code of Federal Regulations]
[Title 16, Volume 1]
[Revised as of January 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 16CFR238.2]

[Page 169]

TITLE 16--COMMERCIAL PRACTICES

CHAPTER I--FEDERAL TRADE COMMISSION

PART 238--GUIDES AGAINST BAIT ADVERTISING--Table of Contents

Sec. 238.2 Initial offer.

(a) No statement or illustration should be used in any advertisement
which creates a false impression of the grade, quality, make, value,
currency of model, size, color, usability, or origin of the product
offered, or which may otherwise misrepresent the product in such a
manner that later, on disclosure of the true facts, the purchaser may be
switched from the advertised product to another.
(b) Even though the true facts are subsequently made known to the
buyer, the law is violated if the first contact or interview is secured
by deception. [Guide 2]

[[Page 170]]

It's already established that product means services as well; shouldn't be too hard to argue that selling a job at less than the advertised or promised salary is no different than selling a fob.

Besides. It doesn't burn my brain to grasp the idea that I pay for my money with my life.

Oh! And Hey! Pay a week's worth of attention to subsection (b)! Doesn't matter what happens after the trick is pulled, the deed is already done.

The top-level point? The government, and businesses, are making claims.

Make them prove it.

And they're committing fraud.

Make them pay.

All the children sing: "Put up or shut up. Na-nya, Vernice Kuglin, Vernice Kuglin... you guys can't even beat a girl...."

Sic'em, Dick!