JDJEDTJR's Dukeminierism source of failure of law in California?
JDJEDTSR is the incarnation of the combination of quantity and quality in law schools. JDJEDTSR's fourth most emphasized subject, after civil procedure, contract, and tort, is property. JDJEDTJR is the incarnation of law schools regardless of alleged quality. JDJEDTJR's favorite text for property law, is Property (Casebook) by Jesse Dukeminier of the UCLA law school ( http://www.amazon.com/exec/obidos/tg/detail/-/0735524378/qid=1112712916/br=1-5/ref=br_lf_b_5//102-1374166-4870552?v=glance&s=books&n=10966 ).
Dukeminier's approach to property law strays from the letter of the law in a given jurisdiction,and explicit agreement to the rule of extrajudicial stare decisis, common sense, and appeal to codes that various claimants in property cases agree to be or are forced by a dominant party such as one making a will to be bound to; rather Dukeminier emphasizes stare decisis or precedent stretching all the way back to Medieval Norman property law; and his analyses of Medieval Norman property law are to this day referred to by judges and attorneys in property disputes. This Dukeminier-ist approach is dominant in law schools, amongst attorneys arguing cases, and also with judges defending the decisions they have made.
Naturally, the property law system of a nation, can in some ways be expected to suffer, if property law disputes are decided by way of reference to precedent stretching all the way back to Medieval property law, as opposed to some other method being used. One would expect that a superior method would involve laws that are regularly re-written to eliminate ambiguities, combined with contractees in property agreeing beforehand to be bound by a given code in the resolution of ambiguities in the property contracts.
The Dukeminierist approach has led to the failure of the state of California to guarantee organizations, the right to retreat into a coccoon in wich its employees are shielded from distracting stimuli the owners of the organization wish to shield the employees of the organization from. This has at least in part to do with the Dukeminierist, appeal to ancient and faroff precedent, an approach dominant in the state of California, and amongst lawyers of the JDJEDTJR type arguing cases there.
Recently Intel was involved in a lawsuit against a Mr. Hamidi in the state of California ( http://www.phillipsnizer.com/library/cases/lib_case324.cfm ). Intel found itself in a position wherein it was unable to get Mr. Hamidi to stop emailing Intel employees, by simply officially requesting to Mr. Hamidi that he stop sending the email to the Intel employees. Although leaders of organizations have on an obvious interest in optimizing productivity and efficiency amongst their employees; and although leaders of organizations have an obvious right to choose if they so wish to optimize such productivity by so to speak withdrawing, with their employees, into a cocoon shielded from distracting outside stimuli, the Dukeminier-ist state of California, had no law in place that would have allowed Intel to withdraw into a cocoon, by simply requesting Mr. Hamidi to cease sending the emails; the state had no law in place that would have turned Mr. Hamidi into an offender simply because after he was officially requested, in a manner such that there was no doubt that he had been made aware of the request, he continued to send emails and disregarded the request.
Such failure on the part of the state of California to allow its businesses to retreat into a productivity cocoon, does not bode well for business in California's ability to compete with businesses in other nations where it is easy for businesses to retreat into productivity cocoons, and is a result in part of a Dukeminierist, precedentist, approach to law.
Likewise the failure of Intel lawyers to obtain from the court an injunction against the sending of emails by Hamidi, is in part an outgrowth of the Dukeminieriest attitudes of such lawyers. The Intel lawyers attempted to get the injunction on the grounds that Hamidi was guilty of the property tort "trespass against chattels", a tort rooted in a Dukeminierist precedentism-in-extremis approach to law. This approach fell flat on its face, and many of us are left wondering why the Intel lawyers plunged into the trespass to chattels approach as opposed to some other more reasonable approach such as a "nuisance" approach.
All in all, the net result of the initial failure of the state of California to allow businesses to retreat into a cocoon, combined with the failure of the Intel lawyers in court, is that businesses in the state of California are not able to retreat into a cocoon, if they so wish, by simply requesting that someone stop sending the employees of the business emails.
Whether or not it is a stupid idea for a business to retreat into a cocoon, businesses nevertheless have the right to decide whether they will retreat into a cocoon.
The Intel v Hamidi case basically, is about, should employer A, be able to prevent B, from emailing A's employees C, using A's email system? Phone calls, old fashioned "snail-mail", outsiders walking in to talk to employees, protesters standing on the street shouting into a bullhorn come to mind.
The employer A wishes to disrupt communication between B and C, the employees of A. There are various solutions for the employer. One type of solution is non-coercive, wherein the phone calls are filtered by a person or by a machine, so as to insure that B's phone calls are excluded. For example, the employer, or the leaders of the organization, could sound-proof the building they are in so that the man on the street with a bullhorn is not heard.
In the case of "snail-mail", an employee or a machine could be assigned the task of tossing out letters from B.
Still there are grounds to expect, that the employers or the leaders of the organization should not be expected to resort to such non-coercive methods, and should be able to get the source of the incoming stimuli to desist by notifying him in a manner such that there is no doubt that he has been notified, to stop emailing the employees.
Businesses and similar organizations can be hounded to death, by way of competing organizations bombarding them with letters, emails, phone calls, etc.
An email in the emailbox, is a source of work for the recipient, just as, a letter or a phone call; 1000 emails in every box, every day, would make the task of extracting important emails exhausting. 1000 snail-mail letters every day would make the task of extracting important snail-mail letters tedious; 1000 phone calls every day, would make extracting important phone calls fatiguing.
Therefore the burden of insulating the organization from distracting outside stimuli such as emails, cannot reasonably be placed on the organization, because such involves the organization having to expend time energy and money for the "insulation", when such insulation can be achieved, by laws requiring those requested to stop communicating with employees to stop communicating with employees.
Because otherwise, is to place an unreasonable burden upon an employer or similar entity, similar to requiring an employer to expend time, energy, and money on sound-proofing his business as a way of dealing with the man on the street shouting into a bullhorn.
The other issue is, that the employees who received the emails, had the option of opting out of getting further emails, which they could exercise by e-mailing the sender of the emails. Does the emphoyer have the right, to disrupt input from the outside, which the employee is given a chance and choice to abort on his own? This is akin to: letters, which an employee can stop by writing to the sender, or phone calls which an employee can stop by calling someone.
The employer, has the right, to make decisions for employees re what the employee will be exposed to on the employer's property, whileon the job. The employer has the right to decide what he wants time energy and money of employees spent on, in the course of the employees using the employer's email system; the employer for example, has the right to decide for the employee which outside talkers the employee will listen to. Employees and persons such as Mr. Hamidi are free to utilize their own email systems and websites to communicate with one another.
Nevertheless, due apparently to the Dukeminierism of JDJEDTJR-- the above arguments I make are made are made without reference to precedent-- what we witness in California is the state of California failing to guarantee to employers and similar such organizations the right to get outside elements to stop emailing their employees, simply by unmistakeably giving notice to such elements that they are requested to stop.
Such is a burden for employers, similar to an employer being required to expend time energy and money soundproofing his place of business to shut out the noise made by someone on the street with a bullhorn, as opposed to the employer being able to get the man with the bullhorn to stop simply by requesting him that he stop.
Furthermore the Dukeminierist Intel lawyers, in attempting to use medieval property law (trespass to chattels) have failed to find redress, on the grounds that no damage had been done by Hamidi to the chattel (Intel's computer system), and on the grounds that Intel's use of its chattel (its computer system) had not been disrupted by the outside emails.
@2005 David Virgil Hobbs
This represents my opinions at this time which may not coincide exactly or even remotely with fact.
Dukeminier's approach to property law strays from the letter of the law in a given jurisdiction,and explicit agreement to the rule of extrajudicial stare decisis, common sense, and appeal to codes that various claimants in property cases agree to be or are forced by a dominant party such as one making a will to be bound to; rather Dukeminier emphasizes stare decisis or precedent stretching all the way back to Medieval Norman property law; and his analyses of Medieval Norman property law are to this day referred to by judges and attorneys in property disputes. This Dukeminier-ist approach is dominant in law schools, amongst attorneys arguing cases, and also with judges defending the decisions they have made.
Naturally, the property law system of a nation, can in some ways be expected to suffer, if property law disputes are decided by way of reference to precedent stretching all the way back to Medieval property law, as opposed to some other method being used. One would expect that a superior method would involve laws that are regularly re-written to eliminate ambiguities, combined with contractees in property agreeing beforehand to be bound by a given code in the resolution of ambiguities in the property contracts.
The Dukeminierist approach has led to the failure of the state of California to guarantee organizations, the right to retreat into a coccoon in wich its employees are shielded from distracting stimuli the owners of the organization wish to shield the employees of the organization from. This has at least in part to do with the Dukeminierist, appeal to ancient and faroff precedent, an approach dominant in the state of California, and amongst lawyers of the JDJEDTJR type arguing cases there.
Recently Intel was involved in a lawsuit against a Mr. Hamidi in the state of California ( http://www.phillipsnizer.com/library/cases/lib_case324.cfm ). Intel found itself in a position wherein it was unable to get Mr. Hamidi to stop emailing Intel employees, by simply officially requesting to Mr. Hamidi that he stop sending the email to the Intel employees. Although leaders of organizations have on an obvious interest in optimizing productivity and efficiency amongst their employees; and although leaders of organizations have an obvious right to choose if they so wish to optimize such productivity by so to speak withdrawing, with their employees, into a cocoon shielded from distracting outside stimuli, the Dukeminier-ist state of California, had no law in place that would have allowed Intel to withdraw into a cocoon, by simply requesting Mr. Hamidi to cease sending the emails; the state had no law in place that would have turned Mr. Hamidi into an offender simply because after he was officially requested, in a manner such that there was no doubt that he had been made aware of the request, he continued to send emails and disregarded the request.
Such failure on the part of the state of California to allow its businesses to retreat into a productivity cocoon, does not bode well for business in California's ability to compete with businesses in other nations where it is easy for businesses to retreat into productivity cocoons, and is a result in part of a Dukeminierist, precedentist, approach to law.
Likewise the failure of Intel lawyers to obtain from the court an injunction against the sending of emails by Hamidi, is in part an outgrowth of the Dukeminieriest attitudes of such lawyers. The Intel lawyers attempted to get the injunction on the grounds that Hamidi was guilty of the property tort "trespass against chattels", a tort rooted in a Dukeminierist precedentism-in-extremis approach to law. This approach fell flat on its face, and many of us are left wondering why the Intel lawyers plunged into the trespass to chattels approach as opposed to some other more reasonable approach such as a "nuisance" approach.
All in all, the net result of the initial failure of the state of California to allow businesses to retreat into a cocoon, combined with the failure of the Intel lawyers in court, is that businesses in the state of California are not able to retreat into a cocoon, if they so wish, by simply requesting that someone stop sending the employees of the business emails.
Whether or not it is a stupid idea for a business to retreat into a cocoon, businesses nevertheless have the right to decide whether they will retreat into a cocoon.
The Intel v Hamidi case basically, is about, should employer A, be able to prevent B, from emailing A's employees C, using A's email system? Phone calls, old fashioned "snail-mail", outsiders walking in to talk to employees, protesters standing on the street shouting into a bullhorn come to mind.
The employer A wishes to disrupt communication between B and C, the employees of A. There are various solutions for the employer. One type of solution is non-coercive, wherein the phone calls are filtered by a person or by a machine, so as to insure that B's phone calls are excluded. For example, the employer, or the leaders of the organization, could sound-proof the building they are in so that the man on the street with a bullhorn is not heard.
In the case of "snail-mail", an employee or a machine could be assigned the task of tossing out letters from B.
Still there are grounds to expect, that the employers or the leaders of the organization should not be expected to resort to such non-coercive methods, and should be able to get the source of the incoming stimuli to desist by notifying him in a manner such that there is no doubt that he has been notified, to stop emailing the employees.
Businesses and similar organizations can be hounded to death, by way of competing organizations bombarding them with letters, emails, phone calls, etc.
An email in the emailbox, is a source of work for the recipient, just as, a letter or a phone call; 1000 emails in every box, every day, would make the task of extracting important emails exhausting. 1000 snail-mail letters every day would make the task of extracting important snail-mail letters tedious; 1000 phone calls every day, would make extracting important phone calls fatiguing.
Therefore the burden of insulating the organization from distracting outside stimuli such as emails, cannot reasonably be placed on the organization, because such involves the organization having to expend time energy and money for the "insulation", when such insulation can be achieved, by laws requiring those requested to stop communicating with employees to stop communicating with employees.
Because otherwise, is to place an unreasonable burden upon an employer or similar entity, similar to requiring an employer to expend time, energy, and money on sound-proofing his business as a way of dealing with the man on the street shouting into a bullhorn.
The other issue is, that the employees who received the emails, had the option of opting out of getting further emails, which they could exercise by e-mailing the sender of the emails. Does the emphoyer have the right, to disrupt input from the outside, which the employee is given a chance and choice to abort on his own? This is akin to: letters, which an employee can stop by writing to the sender, or phone calls which an employee can stop by calling someone.
The employer, has the right, to make decisions for employees re what the employee will be exposed to on the employer's property, whileon the job. The employer has the right to decide what he wants time energy and money of employees spent on, in the course of the employees using the employer's email system; the employer for example, has the right to decide for the employee which outside talkers the employee will listen to. Employees and persons such as Mr. Hamidi are free to utilize their own email systems and websites to communicate with one another.
Nevertheless, due apparently to the Dukeminierism of JDJEDTJR-- the above arguments I make are made are made without reference to precedent-- what we witness in California is the state of California failing to guarantee to employers and similar such organizations the right to get outside elements to stop emailing their employees, simply by unmistakeably giving notice to such elements that they are requested to stop.
Such is a burden for employers, similar to an employer being required to expend time energy and money soundproofing his place of business to shut out the noise made by someone on the street with a bullhorn, as opposed to the employer being able to get the man with the bullhorn to stop simply by requesting him that he stop.
Furthermore the Dukeminierist Intel lawyers, in attempting to use medieval property law (trespass to chattels) have failed to find redress, on the grounds that no damage had been done by Hamidi to the chattel (Intel's computer system), and on the grounds that Intel's use of its chattel (its computer system) had not been disrupted by the outside emails.
@2005 David Virgil Hobbs
This represents my opinions at this time which may not coincide exactly or even remotely with fact.
posted by David Virgil at 9:54 AM
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