Law Review article on frivolity

[Lambkin]

No matter how persuasive your reasoning to the "saveable" guy, if Pete's still on the street saying "look, free money!" then that person probably won't be deterred. So do try to persuade that guy, but it won't be sufficient without the promoter smackdown happening first.

[Quixote]

Which one of us are not hoping that the courts address Hendrickson's argument completely?

I'm not. What would be the point? The more words the court uses to say a tax denier theory is really, really stupid, the more the promoters attempt parse those words exposing the hidden meaning therein that helps them sell more books/tapes/videos.

The more detailed and explicit the answer provided by the court is, the more likely that someone like Pete will point out perceived loopholes.

Pete doesn't look for loopholes. If the Court disagrees with him, he just assumes the Court is wrong.

Until some point within the last year, my faith in the integrity, indeed the lawfulness, of the U.S. Supreme Court was in a sad state of disrepair, and had been for many years. In
light of the obvious unconstitutionality of the "income" tax-- as enforced against private citizens within the 50 states-- the failure of the court to declare it so seemed an incontrovertible indictment.

...

Last year, my faith was restored. Well, that's actually far too strong a statement-- the court still has much to answer for, regarding the "income" tax and a good deal else. But as far as the Constitutionality of that tax as written is concerned, all is well, for the IRC passes Constitutional muster.

CTC, Introduction, page vii.

[Blup]

I don't think it's the court's job, quite honestly, to change the entire legal process, which consists of citing other cases, just for a few nutcases. If they can't be bothered to cite-check, then they can go to hell.

[Gregg]

Which one of us are not hoping that the courts address Hendrickson's argument completely?

I'm not. What would be the point? The more words the court uses to say a tax denier theory is really, really stupid, the more the promoters attempt parse those words exposing the hidden meaning therein that helps them sell more books/tapes/videos.

The more detailed and explicit the answer provided by the court is, the more likely that someone like Pete will point out perceived loopholes.

Howz about we get a court to just say...

"This is beyond stupid, beyond frivilous, beyond random word generators. Yes, everything that comes in is taxable, there are pages of things you can deduct, but if it spends, we want a cut."

[Brandybuck]

Yes, but a layman is not terribly impressed (or even necessarily prone to look things up) when you say "frivlous" and just string some cites to previous cases together. All I am saying is that it might be helpful if judges explained in concise detail WHY an argument is frivolous. I'm not suggesting a dissertation.

A tax denier knows he is being tricky. Some think their trickery is smart and cunning, others think they can trip up the judge in linguistic legerdemain, and still others think are just trying to cheat the system. But it's still know in their hearts that it's trickery. I really don't give a rat's ass if a trickster is not impressed by the judge.

These people are NOT going to listen to what the judge says. So why should he bother?

[Blup]

Too, these folks have been led to believe that the courts are out to git 'em. I try to tell people who don't trust the courts that a court is like a computer language compiler (usually lose 'em right there heh).. that if you try to enter crappy code, the compiler will spit out an error. It simply will not work unless you enter code that the compiler recognizes. You can't just make sh7t up and think it's gonna run.

But deep down inside... I think most of the dudes in the sovereign "movement" are criminals at heart and know that what they're doing is BS and that they're going to lose in the end. That they can gum up the works of the system for just a moment while the court tries to find out what the fork they're saying is enough of a 'win' for them.

These people are the quintessential "losers" of society. They expect to lose, and their actions lead them toward losing.

I think the mistake WE make is assuming that they want to win, or at least want to have a chance at winning. The sovereign movement is the psychology of loserdom, given full effect in our society.

[webhick]

Too, these folks have been led to believe that the courts are out to git 'em. I try to tell people who don't trust the courts that a court is like a computer language compiler (usually lose 'em right there heh).. that if you try to enter crappy code, the compiler will spit out an error. It simply will not work unless you enter code that the compiler recognizes. You can't just make sh7t up and think it's gonna run.

Garbage in, garbage out.

[Judge Roy Bean]

From some experience with people who have run themselves through the pro se meat grinder in financial cases, I can tell you there is a serious amount of distrust of the "judicial system."

It's a bit like trying to see what's going on on the other side of the tracks through a few open boxcar doors of a fast moving train. You miss a lot of bits and pieces so it's easy to jump to conclusions. Especially when anecdotal stories and rumors are deliberately used to promote legal mythologies.

[grixit]

Too, these folks have been led to believe that the courts are out to git 'em. I try to tell people who don't trust the courts that a court is like a computer language compiler (usually lose 'em right there heh).. that if you try to enter crappy code, the compiler will spit out an error. It simply will not work unless you enter code that the compiler recognizes. You can't just make sh7t up and think it's gonna run.

Won't work. They already think they know the hacks and cheat codes.

[.]

The scamming promoters aren't going to be affected by anything any court says. The true believers (whether delusional and/or just stupid) aren't going to be affected by anything any court says.

The marginal devotee might be influenced and helped by a bit more commentary from the bench.

A few extra sentences devoted to the utter impracticality and uselessness rather than case cites would probably be most effective. Much stiffer and earlier-in-the-process sanctions (not all of them go uncollected) would probably compensate for the relatively small amount of court time involved, not to mention serving as a bigger deterrent to some.

Publishing more of them would fatten up the federal reporter a tiny bit, but would make the info more readily available. Even though most of the idiots will never grasp what "not for publication" means and will still consider anything that isn't to be some sort of conspiracy, some of the goofy "researchers" might figure out that they're fighting a losing battle if they can find (or more likely be pointed to) more total and abject defeats of their favorite magic words more easily.

Other than those minor concessions to total nonsense, to hell with those who don't get it; at some point adults have to be held to account whether or not they ever understand why.

[notorial dissent]

Yes, but a layman is not terribly impressed (or even necessarily prone to look things up) when you say "frivlous" and just string some cites to previous cases together. All I am saying is that it might be helpful if judges explained in concise detail WHY an argument is frivolous. I'm not suggesting a dissertation.

I have to strongly agree here, a court saying something is “frivolous” means absolutely nothing to the average person. I can see why it means what it means to the legal community, but sometimes there is a lot to be said for brevity and plain spokenness.

I think that the judge coming out and saying in plain English that “this legal argument / premise, is nothing but nonsense dressed up as legal argument, that the entire premise is based on mind numbing stupidity and ignorance both of the law and reality, and has no validity legally or factually in any form whatsoever, and that is why you are being bounced down the pike”, would be a refreshing change of pace.

[fortinbras]

In tax cases, "frivolous" means an argument already beaten flat in previous tax cases. Not just a little doubtful, but repeatedly decisively unambiguously held to be bogus, especially if it's a sort of grandiose argument (e.g., not just a question about what category of tax applies to some particular transaction but the claim that the litigant doesn't have to pay any taxes at all).

But the tax deniers usually behave like squirrels crossing the road - they make a point of refusing to look up any previous tax cases. "Court decisions aren't the law," they say, "I can and will ignore the court decisions on previous attempts to make this argument." And they end up like roadkill.

[Demosthenes]

In tax cases, "frivolous" means an argument already beaten flat in previous tax cases.

The average non-lawyer doesn't know that frivolous is polite judge-speak for really, really stupid.

[wserra]

OK, I read the thing. I can't say that I studied every word, or even read every sentence with the care it would take to recognize every grammatical error. I did, however, start at the beginning and finish at the end.

The article strikes me as a thesis in search of an argument. The thesis: resolved, that the concept of sanctions for frivolous arguments is or should be in some way troubling to the legal profession. The writer's selection of premises is illustrative. The second sentence of this lengthy article: "Attorneys complain of the hassles of litigating under the threat of sanctions." (Why won't Scribd let you select and copy?) Later, the author muses about "the potential chilling effects on filing of meritorious cases".

I have been a litigator, full-time, for thirty-three years, dealing with courts in one fashion or another literally every day. I can say with complete certainty that not once have I even thought about being sanctioned, let alone complained of it. Not once have I felt any "chill" at all. Moreover, there is nothing litigators like quite as much as telling war stories over a beer or eight (well, not much, anyway). I have never heard a colleague complain of the fear of being sanctioned. Those premises are simply false. Why does the author write this as though it is self-evident? Because that's his thesis.

In point of fact, before courts label an argument "frivolous" that argument has been sliced, diced, dissected, resected, criticized, disparaged, lambasted, denounced, condemned, slammed, castigated, censured, excoriated, ripped, clipped, slashed, bashed, and trashed repeatedly. Before a pro se is sanctioned for making a frivolous argument, in most if not all cases either the pro se has made the same argument before and lost, or s/he has been warned about making the frivolous argument but persists anyway. It bothers me not at all that such a pro se litigant is sanctioned, and the article simply fails to make a case that there's anything unfair about it. Moreover, the article ignores the frequency with which sanctioned pro se litigants receive those explicit warnings.

As does Dan, above, I find plenty in the article which is simply silly. In addition to what Dan already noted, for example, the author finds discrimination against pro se litigants in the use of the concept of frivolity, because the "do not understand the significance". I have no clue what that means, when a litigant is explicitly warned that continuing to make an argument will result in sanctions (or, of course, where the same argument has previously resulted in sanctions imposed on that litigant). I don't think that a litigant need understand the history of the term or its "normative effect on attorneys" (whatever that is), so long as they can understand "This is wrong, and if you persist I will punish you".

No more time to write. In short, I come down far closer to Dan and Demo than to Lawdog and Mephistopheles.

[ASITStands]

The problem is that there are two types of folks out there. I completely agree with the hardline opinion with respect to the true believers.... nothing anyone could say will affect them in the slightest. But I still hope and believe that there are some out there who can still be reached. Some "protesters" do see the light and "reform." We have at least one here. That's why I suggested that at least sometimes, in a few selected cases, a more detailed review and explanation might be useful. But so far as the majority goes I agree that explanations other than than those already out there are useless.

See my comments here. I won't reproduce them here for brevity.

Yes, but a layman is not terribly impressed (or even necessarily prone to look things up) when you say "frivlous" and just string some cites to previous cases together. All I am saying is that it might be helpful if judges explained in concise detail WHY an argument is frivolous. I'm not suggesting a dissertation.

I have to strongly agree here, a court saying something is “frivolous” means absolutely nothing to the average person. I can see why it means what it means to the legal community, but sometimes there is a lot to be said for brevity and plain spokenness.

I think that the judge coming out and saying in plain English that “this legal argument / premise, is nothing but nonsense dressed up as legal argument, that the entire premise is based on mind numbing stupidity and ignorance both of the law and reality, and has no validity legally or factually in any form whatsoever, and that is why you are being bounced down the pike”, would be a refreshing change of pace.

I'm glad to see several others agreeing with my premise. There's got to be a middle road.

[ASITStands]

The scamming promoters aren't going to be affected by anything any court says. The true believers (whether delusional and/or just stupid) aren't going to be affected by anything any court says.

The marginal devotee might be influenced and helped by a bit more commentary from the bench.

A few extra sentences devoted to the utter impracticality and uselessness rather than case cites would probably be most effective. Much stiffer and earlier-in-the-process sanctions (not all of them go uncollected) would probably compensate for the relatively small amount of court time involved, not to mention serving as a bigger deterrent to some.

Publishing more of them would fatten up the federal reporter a tiny bit, but would make the info more readily available. Even though most of the idiots will never grasp what "not for publication" means and will still consider anything that isn't to be some sort of conspiracy, some of the goofy "researchers" might figure out that they're fighting a losing battle if they can find (or more likely be pointed to) more total and abject defeats of their favorite magic words more easily.

Other than those minor concessions to total nonsense, to hell with those who don't get it; at some point adults have to be held to account whether or not they ever understand why.

I think these ideas are close to the middle road. Haven't read the article yet. No time.

[fortinbras]

It's a fairly long article.

[Blup]

I've never heard of sanctions "surprising" anyone.. you have to be completely over the top to get sanctioned or held in contempt, from my experience. (And I've put forth a lot of crappy arguments for my sure-to-lose clients )