1789 to 2014: Letter from First Comte de Intelligencer JEAN CHAIT to His Excellency’s Minister of Finances Necker

12 09 2014

From the Desk of the First Comte de Intelligencer JEAN CHAIT

26 August 1788

Dearest Friend Necker,

I received with some distress your note of 24 August, wherein you expressed concern that the People, faced with privation, an obtuse system of justice, and an obdurate policy of foreign adventurism, have nominated as their Spokespeople certain Parties and Individuals, who express the most radical and Unserious theories and speculations on Politics and Government, and who would, in your view, seek to depose His Majesty the King Louis XVI, father of the French people, protector of the Frankish and Norman realms, and fruit of Bourbon tree.

It is my pleasure therefore to set your concerns at ease. These Radicals are indeed Unserious; and lack a basic understanding of how the Bourbon system works. What does it mean to oppose in His Royal Body the King Louis XVI? The presumption that vociferous opposition to His Majesty, and his Court, would affect some meaningful change in the Government and Politic of France and the Bourbon lands betrays a childlike unseriousness in those critics who would crown themselves leaders of the masses.

Are they aware, these radicals, philosophes, and vagrants, of the nature of the French state? Composed as it is of dozens different administrative regions, more recently divided into generalities which have yet to develop administrative authority of their own? Do they imagine the interests of a Breton to be coterminous with the interests of an Angevin? Or Poitanne? Is the King merely to give speeches on vulgar hustings, would this set in harmony the disparate dukedoms, bishoprics, freeholds and cities, that daily and for centuries have struck different notes from church towers, fields, and castle walls?

How precisely do they expect His Majesty to impose a uniform system of so-called constitutionalism, where he can hardly exercise his will over the freeholders and minor dukes of Rodez or Armagnac? With over 47 provinces, and as many or generalities, responsible for taxation often in conflict with the local Duke or provincial dynasty–is His Majesty to wave his hand and bring “tax fairness” to all these places, as though these Men and their Kin do not exist? No man knows better than yourself, My Dear Necker, despite your Swiss heritage, that His Majesty, and his Bourbon Forebears including le roi soleil, have often to dragoon payments of tax, or wheedle gifts from the Church, merely to finance the Royal Household, much less to provide for any national administration of justice.

And of justice!

These wild-eyed radicals point to the Body of the King, and cry for equal justice–the King’s justice–betraying what can only be a naive understanding of how the Justice of the Realm in fact operates. Do they envision the King sits as seigneur judge from Normandy to Provence? Provence, where there is still in use by the low and middle courts code systems of law derived from the Roman Empire, the time of Casear? And Normandy, where the common law, through years of vassalage to the English Crown, administers yet the system of writs and common law to be found in that dismal island?

Are they so insular, these Heretics and Rabble-Rousers, that they fail to know the plight of the common subject who seeks justice, often spending years between seigneurial courts, ecclesiastical courts, and bailliages and sénéchaussées, before their cases can even be heard? And yet, they say, our complaint is with His Majesty, for not administering justice evenly.

These same charlatans sing their song of woe for the dignity of the urban artisans, decrying the immiserated condition of the ropemaker and brickmaker and ferrier. They decry his lack of power in bargaining with his masters and municipal and noble purchasers of the fruits of his labor.

Do these Poseurs, Charlatans, Criminals and Emos assume an impossible longevity in His Majesty, that it was he that authored the Ordinance of Villers-Cotterêts in 1539, which ancient document in its Article 185 states unambiguously,

Que suivant nos anciennes ordonnances et arrests de nos cours souveraines, seront abattues, interdites, et défendons toutes confrairies de gens de mestier et artisans par-tout notre royaume.

In other words, that all Associations and Confraternities of artisans and professionals are prohibited to combine or withhold, in concert, their labor? Is the King to treat the Ordinance as mere paper–the very contempt for Law about which these self-styled Philosophes at once mewl?

My Dear Friend, in other words, these Men are precisely those about whom His Majesty–and your Excellency–needn’t worry; precisely because they are Unserious, and lacking totally in the Savvy and Elan that marks those of us who have made careers as keen observers of a system which works within a slight percentage of perfection–a system which, organically emerged over centuries of careful compromise, is the Best of all Possible Governments, in the Best of all Possible Worlds.

Yours in Self-Awareness,


Six Months in Chicago

18 08 2014


(image via NBC5-WMAQ)

For six months in Chicago, there may be a rare, once-a-decade opportunity to get some answers. If that sentence seems magniloquent, that’s because I had to start big since the subsequent sentence is, “That opportunity is the 2015 Chicago municipal elections.”

That opportunity is the 2015 Chicago municipal elections. Chicago is defined by confluence; in the first instance, literally, as sitting at the confluence of Lake Michigan, the Chicago River, and the Chicago Portage, the connection between the Great Lakes and Mississippi watersheds. Soon after, the nation’s railroad flowed together there; now, it’s the confluence of the nation’s air travel and trucking. Today, it is also a confluence of some of the country’s biggest challenges.

Income inequality, gentrification, rising housing costs, under-resourced schools and creeping privatization, under-served mental health services, police brutality, street crime, segregation, environmental justice, exploitation of undocumented workers, police militarization, un- and under-compensated care work, wage theft, unemployment, over-crowded jails, hyper-criminalization, lack of government transparency, and crumbling infrastructure. These issues intersect on the orange-lit streets of the Great American City. Chicago is a beautiful city and livable city. It is also suffering.

Read the rest of this entry »

A Civil Action for Deprivation of Rights

14 08 2014

§1983. Civil action for deprivation of rights

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

In Monell v. Department of Social Services of the City of New York, the Supreme Court held that local government units are to be included among those persons to whom Section 1983 applies.

In Pembaur v. City of Cincinnati, the Supreme Court found that a single decision by
a local “final policymaker” triggered Section 1983 liability under Monell, even if the decision was not intended as settled policy (i.e., it was an ad hoc response).

In Tenney v. Brandhove, the Court settled and delineated two types of
immunity under Section 1983: qualified and absolute. A defendant-official is entitled to qualified or absolute immunity turns on the act being challenged, and not the office held by the public official.

Officials performing non-ministerial functions are shielded from liability if they can prove that “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” (see Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity requires first that the plaintiff show that a constitutional right would have been violated on the facts alleged; and second that the right was clearly established. (Saucier v. Katz, 533 U.S. 194, 199-200 (2001)). Qualified immunity is pled as an affirmative defense, meaning the defendant must admit the truth of the events as pled by the plaintiff.

In Fordyce v. City of Seattle and Smith v. City of Cumming, appellate courts recognized the rights of the public to record matters of public interests (in particular protests) and the activities of police. City of Cumming was brought under 42 USC § 1983.

Case law suggests a public official (including police) need not be particularly identified in a complaint for violation of civil rights under § 1983, despite the higher pleading standards following Ashcroft v. Iqbal, 556 U.S. 662 (2009). See in particular, Stevenson v. City of Seat Pleasant, 743 F. 3d 411 (4th Cir. 2014).

There is no respondeat superior liability under § 1983. Typically, individual officers are insured, and departments or cities are involved in the litigation by a proving up of failure to supervise or negligent policy-setting, etc.

Happy Hunting.

How We Made “Innocent Until Proven Guilty” into “Guilty Unless Proven Innocent”

1 08 2014

It was fairly simple to invert the Anglo-American legal doctrine of “innocent until proven guilty.” In large counties in the United States, as many as 80% of those accused of felonies are represented by publicly-funded counsel. These counsel have such voluminous caseloads that in some cases, they can’t spend more than an hour on a particular case. Because the Sixth Amendment guarantees all criminal defendants effective counsel, these defendants can challenge their conviction on the grounds that their public defender didn’t have appropriate opportunity to raise a vigorous and effective defense.

However, the Supreme Court held (in Strickland v. Washington) that in order to vindicate the Sixth Amendment right to effective counsel, a defendant must (a) first wait until they are convicted; (b) prove up that the counsel was professionally unreasonable; and (c) prove up that the ineffective counsel was “prejudicial.” In other words, they must prove (as the Court held subsequently Harrington v. Richter) that the likelihood that they would have prevailed given effective counsel was “substantial.”

In other words, the default situation, given the reality of overloaded public defenders, is ineffective counsel–because, in reality, very few private defense attorneys would spend just a couple hours on a felony rap–which can then be remedied by a showing of likely innocence.

Just how overloaded are public defenders? The American Bar Association, as of 2011, recommended that public defenders handle no more than 150 felony cases per year. As of 2010, Cook County public defenders were handling an average of 235 felony cases.

Even assuming the state is only charging slam-dunk cases (a reasonable assumption, given prosecutors are often overworked as well), this basically guarantees that hundreds, if not thousands, of criminal defendants are not getting effective counsel every year.

The courts, in not recognizing the reality of underfunded public defense programs, are guilty of a cynical formalism that brushes aside the Sixth Amendment’s letter and spirit: that when faced with the machinery of the state, every citizen is presumed innocent. It is facially reasonable to require a defendant to prove on appeal or via collateral attack that effective counsel would almost certainly have made a difference (i.e., to prove a substantial likelihood that they would have prevailed). In reality, though, it means that indigent defendants, significantly likely to receive ineffective counsel, enjoy only an adulterated presumption of innocence.

The Conversation the Members of Jade Had With Each Other When They Got an American Apparel Catalog

31 07 2014

INT. Two Bedroom Condo. Murano Glass, framed record covers, wall-art made with wrought iron and depicting a musical staff and notes. JADE 1 enters, carrying her MAIL, including a CATALOG. It is an AMERICAN APPAREL CATALOG. She also carries some GROCERIES, in a paper bag, and her SUNGLASSES are stuck loosely into her hair. Stumbling, she drops everything down on the dining room table, a simple glass-top table supported by cheap metal-tubing legs. JADE 1, exasperated, plops onto a chair, lets out a tired sigh. The AMERICAN APPAREL CATALOG catches her eye. Thoughtlessly, she flips through it. Her eyes widen. At that moment, her BLACKBERRY rings. She picks it up and looks at the caller id; it’s JADE 2 and 3 in a conference call.


We’re back!



Go West, Young Man: Reflections on Oakland By a Transplanted Chicagoan

24 07 2014

It’s a big, left-leaning city with a diverse population and an emerging gentry class, so it’s the same as Chicago more or less. The people are basically the same, because cosmopolitanism and humans being the same. It’s not as segregated, because Chicago is the most segregated. The people don’t seem to be as funny, because I’m new here and haven’t met a lot of people. It’s dirtier because Chicago has alleys. You have to drive couches and stuff to the dump. There are several areas of life that are made alternatively more and less complicated because it is a city in a different state, and thus a different legal regime pertains and patterns people’s behaviors.

This is dumb people shouldn’t write things like this.


How To Get Rich in America

7 07 2014

1. Be born rich


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