4 ms·

Thomas is the biggest QI critic on the court (along with Sotomayor). I don’t see strong evidence for the others you listed.

tptacek 4y ago
Ah, that's a good callout. Thanks. He's twice recently dinged QI, the first time in a policing case. I still think you wouldn't want this court hearing a QI case, but there's two potential crossover votes, not one.
- rayiner 4y ago
  I think you can count to 5. The problem isn’t ideological, it’s pragmatic. The signal to noise ratio in lawsuits against the police is extremely low. You’d be opening the floodgates to frivolous litigation. Just look at the shit that gets filed against judges—and they have absolute immunity. Gorsuch and especially Thomas are the most likely of anyone on the Court to not care about the practical ramifications. I think it’s actually a better court for challenging QI than it’s been in decades. Replacing Breyer with KBJ and Scalia with Gorsuch moved things closer. Thomas has also come into his own. Kennedy to Kavanaugh was probably a wash. RGB to ACB maybe a small step back.
  - tptacek 4y ago
    Wokay, I stand corrected on that.
    - abduhl 4y ago
      I believe that Kagan is also mostly a QI supporter, given her generally deferential disposition towards the executive branch and its agencies. So your read on the bench’s leanings here seems to be almost entirely wrong. You’re unlikely to see a more friendly bench for challenging QI for years: Thomas, Gorsuch, Jackson, and Sotomayor seem to be votes against QI in its current form while Alito, Kagan, and Kavanaugh are votes for keeping QI.
      - tptacek 4y ago
        Wokay, I stand corrected on that.
    - rayiner 4y ago
      I don’t think there’s a correct answer here, I’m just reading tea leaves too.
      - tptacek 4y ago
        Yeah, no, you made an interesting point, that's all I'm saying.
  - dmix 4y ago
    > The signal to noise ratio in lawsuits against the police is extremely low. You’d be opening the floodgates to frivolous litigation. What are the practical implications then if it's indeed primarily signal to noise? Just a bunch of lawyers (and their boosters) making political plays that go nowhere but burden the system? And a bunch of police who get caught in the crosshairs while union lawyers take the brunt of the impact, while police spend years on paid leave and amplify police hiring shortages?
    - retrac 4y ago
      From a judge's perspective, the impact on the legal system must surely be prominent, if only subconsciously. "Just a bunch of lawyers" is their entire social class.
    - abduhl 4y ago
      Every lawsuit filed takes up judicial resources. QI is an effective way to dump a lot of frivolous lawsuits, it just happens to have a really high false positive rate for “frivolous” (and happens to be unconstitutional IMO). There aren’t different courts for lawsuits against the police. It’s not just police sitting on paid leave but innocent people languishing in jail while their case drags on and actual disputes that aren’t frivolous dragging out rather than being resolved so that the parties can move on.
    - rayiner 4y ago
      Overloading the court systems and interfering with the ability of police to do their jobs.
      - ROTMetro 4y ago
        Their job is upholding the law, and access to the courts is one of the highest and most important constitutional rights to ensure trust in the system. One of the HIGHEST laws/rules of their job is ENSURING citizens have access to the courts so they are not doing their job if they are in anyway discouraging such access, especially when their justification is 'inconvenience'. The lawmakers are the ones that create the mechanisms for access to the courts, it is THEIR job to ensure the laws/system are workable when people choose to ACCESS THEIR RIGHTS. That is NOT the police's job, again, that is the law makers job. Qualified immunity is unconstitutional and protections/ensuring the system works is required to be done by lawmakers under the constitution, not illegally giving DELEGATED AUTHORITY from the judicial branch to the executive.
  - ROTMetro 4y ago
    There were posters all over Federal Prison that filing false cases/liens against Judges would result in additional charges and or sentence extension. It came off more as 'don't challenge your case in any way' and definitely discouraged a lot of dudes that had very valid reasons to file. Access to the courts by citizens should be the court's priority, not discouraging it because it's 'inconvenient' for government agents.
  - tomohawk 4y ago
    A legislative fix would be better than a judicial one. While unlikely, a large part of the need for QI would go away if the English Rule was adopted. It is far to easy to sue in the US over frivolous matters, and the US is the only OECD country that does not have the English Rule, which provides a pragmatic limit on those shenanigans.
    - dragonwriter 4y ago
      > a large part of the need for QI would go away if the English Rule was adopted. The English Rule makes litigation inherently higher risk for less wealthy litigants while barely limiting more wealthy ones, and further tips the balance of the legal system to the wealthy. And it doesn’t address the need for QI. OTOH, QI would be fairly comprehensively solved if the immunity was treated as an indemnity by the employing government rather than a simple immunity, such that, should QI be established to apply, instead of the case being dismissed before reaching the merits, it became a case where any damages would be the responsibility of the employing government agency rather than the employer, bypassing any otherwise-applicable governmental immunities. (The logic of QI is that it is unjust to hold a government employee responsible in their personal capacity for a violation of the law done in their capacity as a government agent, within a zone in which they had discretion in the job, and where there was insufficient basis for them to know that the act was a violation; there is, I think, a very good argument that this is the case but that the result should not be that all remedy is lost.) The problem is when governmental immunities stack with personal immunity under QI and with insufficient prosecution of crimes by public officials to denial all remedy, not with QI alone. In fact, I would argue that QI is, alone, the least important of the three roots of the problem, just that it prevents the last available end-run around the more important ones.

tptacek 4y ago

Ah, that's a good callout. Thanks. He's twice recently dinged QI, the first time in a policing case. I still think you wouldn't want this court hearing a QI case, but there's two potential crossover votes, not one.

rayiner 4y ago
I think you can count to 5. The problem isn’t ideological, it’s pragmatic. The signal to noise ratio in lawsuits against the police is extremely low. You’d be opening the floodgates to frivolous litigation. Just look at the shit that gets filed against judges—and they have absolute immunity. Gorsuch and especially Thomas are the most likely of anyone on the Court to not care about the practical ramifications. I think it’s actually a better court for challenging QI than it’s been in decades. Replacing Breyer with KBJ and Scalia with Gorsuch moved things closer. Thomas has also come into his own. Kennedy to Kavanaugh was probably a wash. RGB to ACB maybe a small step back.
- tptacek 4y ago
  Wokay, I stand corrected on that.
  - abduhl 4y ago
    I believe that Kagan is also mostly a QI supporter, given her generally deferential disposition towards the executive branch and its agencies. So your read on the bench’s leanings here seems to be almost entirely wrong. You’re unlikely to see a more friendly bench for challenging QI for years: Thomas, Gorsuch, Jackson, and Sotomayor seem to be votes against QI in its current form while Alito, Kagan, and Kavanaugh are votes for keeping QI.
    - tptacek 4y ago
      Wokay, I stand corrected on that.
  - rayiner 4y ago
    I don’t think there’s a correct answer here, I’m just reading tea leaves too.
    - tptacek 4y ago
      Yeah, no, you made an interesting point, that's all I'm saying.
- dmix 4y ago
  > The signal to noise ratio in lawsuits against the police is extremely low. You’d be opening the floodgates to frivolous litigation. What are the practical implications then if it's indeed primarily signal to noise? Just a bunch of lawyers (and their boosters) making political plays that go nowhere but burden the system? And a bunch of police who get caught in the crosshairs while union lawyers take the brunt of the impact, while police spend years on paid leave and amplify police hiring shortages?
  - retrac 4y ago
    From a judge's perspective, the impact on the legal system must surely be prominent, if only subconsciously. "Just a bunch of lawyers" is their entire social class.
  - abduhl 4y ago
    Every lawsuit filed takes up judicial resources. QI is an effective way to dump a lot of frivolous lawsuits, it just happens to have a really high false positive rate for “frivolous” (and happens to be unconstitutional IMO). There aren’t different courts for lawsuits against the police. It’s not just police sitting on paid leave but innocent people languishing in jail while their case drags on and actual disputes that aren’t frivolous dragging out rather than being resolved so that the parties can move on.
  - rayiner 4y ago
    Overloading the court systems and interfering with the ability of police to do their jobs.
    - ROTMetro 4y ago
      Their job is upholding the law, and access to the courts is one of the highest and most important constitutional rights to ensure trust in the system. One of the HIGHEST laws/rules of their job is ENSURING citizens have access to the courts so they are not doing their job if they are in anyway discouraging such access, especially when their justification is 'inconvenience'. The lawmakers are the ones that create the mechanisms for access to the courts, it is THEIR job to ensure the laws/system are workable when people choose to ACCESS THEIR RIGHTS. That is NOT the police's job, again, that is the law makers job. Qualified immunity is unconstitutional and protections/ensuring the system works is required to be done by lawmakers under the constitution, not illegally giving DELEGATED AUTHORITY from the judicial branch to the executive.
- ROTMetro 4y ago
  There were posters all over Federal Prison that filing false cases/liens against Judges would result in additional charges and or sentence extension. It came off more as 'don't challenge your case in any way' and definitely discouraged a lot of dudes that had very valid reasons to file. Access to the courts by citizens should be the court's priority, not discouraging it because it's 'inconvenient' for government agents.
- tomohawk 4y ago
  A legislative fix would be better than a judicial one. While unlikely, a large part of the need for QI would go away if the English Rule was adopted. It is far to easy to sue in the US over frivolous matters, and the US is the only OECD country that does not have the English Rule, which provides a pragmatic limit on those shenanigans.
  - dragonwriter 4y ago
    > a large part of the need for QI would go away if the English Rule was adopted. The English Rule makes litigation inherently higher risk for less wealthy litigants while barely limiting more wealthy ones, and further tips the balance of the legal system to the wealthy. And it doesn’t address the need for QI. OTOH, QI would be fairly comprehensively solved if the immunity was treated as an indemnity by the employing government rather than a simple immunity, such that, should QI be established to apply, instead of the case being dismissed before reaching the merits, it became a case where any damages would be the responsibility of the employing government agency rather than the employer, bypassing any otherwise-applicable governmental immunities. (The logic of QI is that it is unjust to hold a government employee responsible in their personal capacity for a violation of the law done in their capacity as a government agent, within a zone in which they had discretion in the job, and where there was insufficient basis for them to know that the act was a violation; there is, I think, a very good argument that this is the case but that the result should not be that all remedy is lost.) The problem is when governmental immunities stack with personal immunity under QI and with insufficient prosecution of crimes by public officials to denial all remedy, not with QI alone. In fact, I would argue that QI is, alone, the least important of the three roots of the problem, just that it prevents the last available end-run around the more important ones.