And Dave's Solo Act

If DaveScot didn't exist, it would be necessary to invent him. Who could give up the constant amusement of watching him take brave leaps in the dark and land with a resounding thud? Here's his latest, where he entirely misreads a post by Sandefur at the Panda's Thumb and still doesn't get the distinction between what juries can and cannot judge. He's still trying to find some credibility for his claim that if the damages had been over $20 in the Dover case, then a jury would have heard the case and likely would not have ruled the way the judge did. He claims that Sandefur agrees with him and disagrees with me; he is wrong. Here's the portion he quotes from Sandefur:

But there's a rule that says that you can't have a jury when you're asking for an injunction, only when you're asking for damages. This goes back to the old common law days. At the time the Constitution was written, courts were divided into the law courts and the equity courts. If you wanted money damages, you would go to a law court. If you wanted an injunction, you would go to an equity court. You could only have juries in law courts, not equity courts. Nowadays the two kinds of courts have been combined. But you're still only entitled to a jury trial in cases seeking "law"-type remedies--that is, money damages--not in cases seeking "equity"-type remedies, such as an injunction.

He emphasizes the part in bold. Now here's what he's missing completely: our courts perform both functions, as courts of law and courts of equity. So what would actually happen if someone sued for both injunctive/declaratory relief and money damages that went over $20? There would be a mixed trial, heard by both a judge and a jury, each of which would determine different parts of the case. The jury would be empowered only to decide the question of damages, while the judge would rule on the request for injunctive or declaratory relief. Why? Juries are finders of fact. They cannot issue injunctions or declarations of relief. Here's a legal reference for you, Dave:

Only judges can grant injunctions. Juries cannot decide injunctions because juries do not issue orders. Only judges issue orders. You can ask both for an injunction and for money damages in a complaint. Then, the judge will decide your injunction while the jury will decide your money damages (if you wish to have a jury trial on that part of your case).

And of course, all of this relies on the equally ridiculous notion that if you call reimbursement of legal fees punitive damages, they magically become punitive damages. Reimbursement of legal fees is allowed in all civil rights cases where the government is challenged, and that is for a reason entirely different from why we provide punitive damages. Congress was clear on the reasons why it wanted such reimbursement and there were two primary reasons. First, because if the government is acting unconstitutionally and the court agrees, a citizen should not be forced to spend their own money in order to stop the government from doing so. Second, because it allows citizens to attract competent counsel by which to pursue such cases against the government. Those are all good things, of course, and Dave would no doubt support them in any other case. But if he doesn't like the outcome of those cases, like all juveniles, he throws a fit and stomps his feet and wants to change the rules.

But Dave isn't done being a dolt yet. He still has this question to ask:

If you don't believe this was part of the ACLU strategy ask yourself what other reason there might have been for NOT asking for punitive damages if not to avoid a jury trial?

Gee Dave, maybe because they weren't interested in making money over the issue? Maybe what they were after is what they got, injunctive relief from an unconstitutional policy. The fact is, the only reason they asked for the nominal damages of $1 per plaintiff was to avoid having the case mooted in case of a school board change (which, of course, did happen) and force the court to rule in the case. The plaintiffs weren't trying to get rich off the case. They weren't seeking to punish the school district. They wanted an injunction to prevent them from violating the Constitution and that's what they got.

Stop for a moment, Dave, and think about this: why don't the ACLJ or the ADF ask for punitive damages in cases like Lamb's Chapel? Because they want to avoid a jury trial? Of course not. Juries would be more sympathetic to their case than judges would. It's because when someone files a case against the government on a constitutional issue, they don't do it to make money. They do it out of principle, even if you don't agree with that principle. They're suing to have their rights restored, not to have their bank account increased. And it's also because they know that no matter what they ask for in damages, the constitutional issue can only be decided by a judge, not a jury.


More like this

DaveScot and Larry Fafarman really should take their act on the road, I think. I'd pay money to see these keystone cops try and explain legal concepts to each other and argue about it, wouldn't you? Dave's post on jury nullification continues to provide much amusement. As Dan said in a comment,…
Good ol' DaveScot is back (with a brand new dance) and this time he's blathering about jury nullification. The problem is that he doesn't seem to have a clue what jury nullfication is. What makes it even funnier is that he actually quotes the definition of jury nullification and then still doesn't…
I thought I was done pummeling DaveScot's immeasurable ignorance on this issue, but then I saw this comment where he interjects his thoughts in bold. It's just astonishing how someone can be so wrong about virtually everything and be totally unaware of it. It's like the perfect storm of stupidity.…
Dave and Larry don't always perform together, of course. Larry has his own act, which can be seen at his blog pretty much every day. And he's continued to peddle nonsense on this issue over there. (1) The attorney fee awards that defendants must pay in establishment clause cases are often…

In fairness, Dave did also previously say (before the trial) that Judge Jones would likely side with the defense because of his alliances, so it's probable that Dave just has a hard time thinking outside of personal gain.

But if he doesn't like the outcome of those cases, like all juveniles, he throws a fit and stomps his feet and wants to change the rules.

I would like to see a scenario out of It's a Wonderful Life where three law professors show Dave what the world would be like for all cases if his made-up rules were adopted.

"...but Professor Nader, a jury in Massachusetts is too liberal to decide to outlaw gay marriage! I think we should put the question to a judge!"
"Sorry Dave, but because your attorney's fees are over $500,000 already, and since someone might call them punitive damages, the jury figures it all out. This, of course, is in line with your crazy rules regarding jury nullification."

By FishyFred (not verified) on 02 Jul 2006 #permalink

Dave and Larry remind me of the picketers I meet weekly as an escort at a Planned Parenthood clinic. Their literature and taunts explicitly say that PP offers abortions to make lots and lots of money ("It's all about the money," they shout.) The truth, as you might expect, is somewhat different.

Abortion involves only five percent of patient visits. Of our local PP clinic group (we operate four clinics) 31% of our revenue comes from private donations. Fifteen percent comes from government grants. And slightly less than 50% comes from patient fees. But to provide abortions requires air tight security. For that we (I'm on the board there) employ a part time armed guard, use four video cameras and recorders, have bullet proof glass with seven layers of glass and six layers of plastic (plus standard Thermopane glazing) in all our windows, a full time security system with electrically locking doors throughout the interior, and special adapters on the ventilators on the roof (to prevent the injection of noxious fumes).

Do we make money on abortions? Of course not. Every abortion we provide costs PP more money than it takes in as revenue from any source, and that doesn't even begin to consider the costs of the security steps outlined above). So the allegation that PP offers abortions for profit is a total canard. But like Larry and DaveScot, the truth is never an impediment, if ignorance or lies serve one's purposes better

So what are the odds that:

1) Mr. Sandefur will contact Dave to let him know just how badly he's mangled this?

2) Dave, if so corrected, will admit he was wrong and not erase the thread?

By dochocson (not verified) on 02 Jul 2006 #permalink

I must admit that I was not expecting DaveScot to actually acknowledge your posts, but there it is.

By FishyFred (not verified) on 02 Jul 2006 #permalink


The odds of the first are pretty good, but Tim is traveling for the holidays at the moment, presumably with his lovely fiance Erin, and won't be able to respond for a while. I did tell him about it, however. As for the second, I think the odds of DaveScot admitting he was wrong about something are roughly equal to the odds of Carrot Top winning Best Actor at next year's Academy Awards.

To be fair to the PP protesters, their principal argument is not that PP makes that much off of abortions, but that the physicians providing the abortions made lots of money, and that this group is actually controlling the show, with PP just being a figurehead. At least that was the argument I got when I was a Congressional aide meeting with interest groups.

I'm not sure that the conspiracy theory explanation is better either from a logical or moral perspective, seeing as it smacks of propaganda such as "Der ewige Jude." Still, we should try to be correct about these things.

Kehrsam, you'd be right about the money except that the physicians who work with PP that I know are on full time salary or a one-day-a-week contract. They are not paid by the procedure. The one I know personally at one time had a full time private practice but found that the malpractice premiums had grown so that she no longer could make a decent living, so she joined PP (to which she'd long been an adviser). Her salary is adequate but well below her peers in other specialties. PP affiliates nationwide avoid the malpractice premiums by self-insuring for all its medical services through a nationwide pool. That keeps operating costs much lower than they would be in private practice.

I should also add that the physicians who perform abortions for PP have to keep a very low profile and engage in all kinds of subterfuges to shield their families from harm. Ones I've known have been tailed and harassed by protesters, received many phone calls and mails threatening bodily harm, and had their children harassed at school. They have to endure more abuse than anyone I know in public life and that takes a toll, both financial and emotional. Becoming affluent is not an option on their dance card of choice. To allege that the motivation of PP and their physicians is money is as absurd as saying the same thing about the ACLU. The facts support neither argument.

I agree with everything you say. I was just trying to bring out a small point in how the pro-life side argues. I haven't been lobbied on the issue in a few years as well. The change in physician affiliation may well have made the pro-choicers change their talking points and they haven't bothered to let me know. '-)

Do you think it reasonable to spend $2.5 million dollars in legal costs to get an injunction where no actual damage was done? Give me a break. This is gaming the system. Exhorbitant legal fees are being used as a proxy for punitive damages. Thanks for strengthening my point by showing there was really no cause of action for damages. But they sure damaged that impoverished little school district with the far out of proportion legal costs. -ds

So DaveScot, when you are headed to court you'll skimp on the legal representation? Who is the arbiter of how much representation is valid in any given court case?