Pittsburgh Legal Back Talk

Legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus.

1510 Posts and Counting

Who Knows What Evil Lurks in the Hearts of Men?

Posted by Cliff Tuttle| June 24, 2018 | © 2018

No. 1,510

I’ve written about this before.  It never ceases to amaze me that I receive so many emails like this one. Some days I get two or three of them.  Is it even a crime?  If so, is anyone ever apprehended and punished for doing it?  And who clicks the links?  90 year old ladies?  Ten year old children?

Have you ever received a legitimate email from FedEx or anyone else that looked like this?

Of course, bad grammar and spelling are usually the biggest giveaway. The author of this typical masterpiece is almost certainly not a native speaker of English. This one was probably slapped together in a few minutes. But I have received others that must have required much more time to assemble.


On Being Quick to Learn and Slow to Judge

Posted by Cliff Tuttle| June 23, 2018 | © 2018

No. 1,509

Image: vridor.org

It is worth a reminder not to draw conclusions with less than full information.

Information is being communicated to us with incredible speed.  Yet, too often, what reaches our eyes and ears first is incomplete or worse, presented to further the interests or biases of the communicator. If the communicator is also a persuader, the information presented must be sifted with special care.

To see an illustration of this phenomenon, switch the TV channel back and forth between the major news networks during a breaking news event.  The differences in presentation can be astounding.

It is critical to suspend judgment until all of the relevant facts are in.  That can be difficult to do.  But reserving judgment is a state of mind that can be cultivated.  So is skepticism. There is nothing wrong with examining everything that comes to you with a critical eye, no matter what the source.  Moreover, truth has layers.  Specific facts presented may be flawed or even misrepresented.  But additional information, garnered over time, may nevertheless justify the same conclusion, despite the initial flawed communication. One statement that seems improbable can turn out to be the truth.  Another that seems credible can be an outright lie.

That doesn’t mean that it is ethical to attempt to deceive.  Don’t do it.  After you are found out, your credibility is damaged, perhaps destroyed.  Like the little boy who cried wolf, you may not be believed, even when correct.

Lawyers face these problems all of the time.  In a criminal case, for example, the prosecution presents its case first.  I’ve asked the jury to withhold judgment until after they have heard the defense.  Jurors want to be fair and a reminder that a trial is organized to permit the orderly presentation of evidence is very helpful.  Moreover, the weakness in a key witnesses’ testimony may only appear later, after cross examination or testimony of other witnesses.

We should all develop the healthy habit of withholding judgment until we have heard the whole story. That applies to everything, not just the news or court cases. Healthy skepticism is a habit worth cultivating.




Supreme Court Says States May Require Sales Tax Payment On Internet Sales By Merchants with No Presence in the State.

Posted by Cliff Tuttle| June 22, 2018 | © 2018

No. 1,508

SOUTH DAKOTA v. WAYFAIR, INC., ET AL., NO. 17-494, 585 U.S._____  (DECIDED JUNE 21, 2018)

[NOTE: Full Opinion is linked above. Verbatim excerpts from the opinion are reprinted below in bold italics.  Consult the link for the full text.]

Image: asianentrepreneur.com

The Supreme Court revisited its interpretation of the Commerce Clause in two prior cases, National Bellas Hess, Inc. v. Department of Revenue of Ill., 386 U. S. 753 (1967); Quill Corp. v. North Dakota, 504 U. S. 298 (1992).  The Court granted certiorari to reconsider the scope and validity of the physical presence rule mandated by those cases.

The Court’s Opinion, authored by Mr. Justice Kennedy stated:

 The Constitution grants Congress the power “[t]o regu­late Commerce . . . among the several States.” Art. I, §8, cl. 3. The Commerce Clause “reflect[s] a central concern of the Framers that was an immediate reason for calling the Constitutional Convention: the conviction that in order to succeed, the new Union would have to avoid the tenden­ cies toward economic Balkanization that had plagued relations among the Colonies and later among the States under the Articles of Confederation.

Under the Commerce clause, it has been held that the states may not enact legislation or impose regulations that hinder interstate commerce.  However, taxation of commerce has not been prohibited, so long as it does not discriminate against interstate commerce in favor of local commerce or impose undue burdens upon it. Over time, caselaw has developed whereby the Courts have sought to find a suitable nexus between the interstate business activity and the state of the consumer.  Thus, the physical presence rule. Due process is a parallel, but not identical, consideration.

South Dakota, which does not have an income tax, relies heavily upon sales tax.  As ecommence has flourished, it has seen an increasing volume of purchases escape its sales tax since the merchants do not have a physical presence in the State. The Supreme Court, which not so long ago thought that physical presence was a suitable nexus under the Commerce Clause, has decided that the world has changed. Indeed it has. [Bold italics below are from the Opinion]

In effect, Quill has come to serve as a judicially created tax shelter for businesses that decide to limit their physical presence and still sell their goods and services to a State’s consumers—something that has become easier and more prevalent as technology has advanced.

Worse still, the rule produces an incentive to avoid physical presence in multiple States. Distortions caused by the desire of businesses to avoid tax collection mean that the market may currently lack storefronts, distribution points, and employment centers that otherwise would be efficient or desirable. The Commerce Clause must not prefer interstate commerce only to the point where a merchant physically crosses state borders. Rejecting the physical presence rule is necessary to ensure that artificial competitive advantages are not created by this Court’s precedents. This Court should not prevent States from collecting lawful taxes through a physical presence rule that can be satisfied only if there is an employee or a building in the State.

The Court continues:

Modern e-commerce does not align analytically with a test that relies on the sort of physical presence defined in Quill…. But it is not clear why a single employee or a single warehouse should create a substantial nexus while “physi­cal” aspects of pervasive modern technology should not. For example, a company with a website accessible in South Dakota may be said to have a physical presence in the State via the customers’ computers. A website may leave cookies saved to the customers’ hard drives, or customers may download the company’s app onto their phones. Or a company may lease data storage that is permanently, or even occasionally, located in South Dakota. Cf. United States v. Microsoft Corp., 584 U. S. ___ (2018) (per curiam). What may have seemed like a “clear,” “bright-line tes[t]” when Quill was written now threatens to compound the arbitrary consequences that should have been apparent from the outset. 504 U. S., at 315.

Be­tween targeted advertising and instant access to most consumers via any internet-enabled device, “a business may be present in a State in a meaningful way without” that presence “being physical in the traditional sense of the term.” Id., at ___ (slip op., at 3). A virtual showroom can show far more inventory, in far more detail, and with greater opportunities for consumer and seller interaction than might be possible for local stores. Yet the continuous and pervasive virtual presence of retailers today is, underQuill, simply irrelevant. This Court should not maintain a rule that ignores these substantial virtual connections to the State.

In a coupe de grace, the Court then throws the language of Quill back in the face of the electronic retailer who seeks to avoid tax imposed by their brick and mortar competitors.

Wayfair offers to sell a vast selection of furnishings. Its advertising seeks to create an image of beautiful, peaceful homes, but it also says that “‘[o]ne of the best things about buying through Wayfair is that we do not have to charge sales tax.’” Brief for Petitioner 55. What Wayfair ignores in its subtle offer to assist in tax evasion is that creating a dream home assumes solvent state and local governments. State taxes fund the police and fire departments that protect the homes containing their customers’ furniture and ensure goods are safely delivered; maintain the public roads and municipal ser­vices that allow communication with and access to cus­tomers; support the “sound local banking institutions to support credit transactions [and] courts to ensure collec­tion of the purchase price,” Quill, 504 U. S., at 328

According to respondents, it is unfair to stymie their tax-free solicita­ tion of customers. But there is nothing unfair about re­ quiring companies that avail themselves of the States’ benefits to bear an equal share of the burden of tax collec­ tion. Fairness dictates quite the opposite result. Helping respondents’ customers evade a lawful tax unfairly shifts to those consumers who buy from their competitors with a physical presence that satisfies Quill—even one ware­ house or one salesperson—an increased share of the taxes. It is essential to public confidence in the tax system that the Court avoid creating inequitable exceptions.

Further, the real world implementation of Commerce Clause doctrines now makes it manifest that the physical presence rule as defined by Quill must give way to the “far-reaching systemic and structural changes in the economy” and “many other societal dimensions” caused by the Cyber Age. Direct Marketing, 575 U.S., at ___ (KENNEDY, J., concurring) (slip op., at 3). Though Quill was wrong on its own terms when it was decided in 1992, since then the Internet revolution has made its earlier error all the more egregious and harmful.



How to Have a Polite Discussion Even When Tempers are Flairing.

Posted by Cliff Tuttle| June 20, 2018 | © 2018

No. 1,507

Sister Valerie Zottolla of Casa San Jose had some advice for all of us for effective communication, even with adversaries, involving highly emotional topics. Although she specifically references the issue of separation of families at the border, her words are equally applicable to dispute resolution and finding common ground with an adversary. Here it is, unedited:

Dear Amigas and Friends,
  We know so many of you feel as we do—sad, heavy-hearted, angry, maybe outraged, etc.—over the separation of families at our borders, resulting in thousands of children placed in detention centers. . .   and, feeling powerless in the face of such an overwhelming atrocity.  We have sent you information regarding some ways in which you might use your compassion to influence lawmakers.  We would like to offer you this challenge, now:
If you know of someone—just 1 person—who is in support of this policy; invite them into a conversation with you about it,  perhaps over a cup of coffee or tea.
  • Pray for the grace to be respectful and open.
  • LISTEN — without trying to build up defensive arguments against any of the points they are making—intently, trying to understand their point of view.  This will not be easy.
  • RESPECT the person; pay more attention to the “person” than to what they are saying.  And, then, of course, share your point of view.
You may or may not be able to do this, especially in such an emotionally charged time; but if you are, it could be a significant step in trying to build understanding and mutual respect…..putting one more building block in that bridge that so divides us, as a country.  It is this division that is fueling such atrocities.
Don’t feel discouraged if you leave with no resolution……try your best, though, to leave with mutual respect.  Oftentimes, such conversations are only the “beginning” in transforming one’s thinking; the planting of seeds, that only God knows how/when they will flower.
Once again, IF you feel able to do this, it could be valuable; but don’t hesitate to admit to yourself, that right now may not be the best time for you to engage in such a conversation.
“You have heard that it was said ‘You shall love your neighbor and hate your enemy.’ But I say to you, Love your enemies and pray for those persecuting…” (Matthew 5: 43-44)
With gratitude for all your support.
If you would like to know more about Casa San Jose and its mission, click the link in the box on the top of the left column of this blog.  It links to the CSJ website.  This organization is an outreach of the Sisters of St. Joseph to Latino families living in our community.

Intelligence is Like Beauty, in the Eye of the Beholder.

Posted by Cliff Tuttle| June 16, 2018 | © 2018

No. 1,506

Image: govtech.com

A friend of mine, who is my age, has been tested several times recently for symptoms of dementia. He asked his wife why the tester always asked questions about the date, day of the week and the like.  “Is it important?” he asked. It was a good question for him, since he had been retired for some time and didn’t have any daily responsibilities.

After being assured that it was, he stated that, in that case, he would make sure he always knew it.

Generally speaking, we remember what we think is important. However our brains are not perfect.  From the very first day of life they are molded by stimuli received from the world. By the time we are administerd an IQ test, perhaps in first grade, we are already pretty far down the road of experience and learning.

Intelligence has been defined in many different ways to include the capacity for logic, understanding, self-awareness, learning, emotional knowledge, reasoning, planning, creativity, and problem solving. It can be more generally described as the ability to perceive or infer information and to retain it as knowledge to be applied towards adaptive behaviors within an environment or context. [Wikipedia]

Intelligence tests are supposed to be neutral.  The effect of acquired knowledge, culture and everything else is supposed to be filtered out.  But, as we have reluctantly been forced to admit, despite the intriguing culture-free intelligence tests for infants developed by Piaget and others, it never can be.

We’ve been congratulating ourselves for the last 60 years or so that intelligence test scores have been increasing at a steady pace. The so-called Flynn Effect is supposed to reflect environmental factors, such as nutrition, that improved in the post war (WWII) western world.  But what is given can be taken away.  Some of the same studies that reported steady increase in IQ over the second half of the 20th Century are now reporting a decrease. Many factors have been suggested, but of course, there is no hard data that explains the supposed phenomenon.  In fact, it may not even be real, since the changes are very modest and may even be within the statistical range of error.

A more complete discussion is contained in a couple of interesting blog posts here and here.

The post by Economics prof  Tyler Cohen in Marginal Revolution on the subject drew a raft of comments, some witty, indicating that explanations range into dozens of sinister causes, including television. One of them is that when the world population level broke free from the Malthusian ceiling determined  by a limited food supply, Darwinian survival-of-the-fittest principles no longer operated to cull the human herd. Yes, some of the ideas suggested by Marginal Revolution readers are not exactly politically correct.

So where does all this leave us?  Is there nothing to be done?

Obviously not.  Other studies suggest that everybody, including older people, can do many things to improve the functioning of their neural network.  Exercise is one.  Diet is another.  Try reading — something challenging, of course.  Learn a language.  Do some math, preferably by hand.  Don’t watch mindless television shows; watch mindful ones and not too many. Engage in conversation with intelligent and interesting people.  Take a class.  Meditate.  Keep a daily journal. And, if you are really serious about keeping your mind in working order, write a blog.

I can’t prove it, but I have come to believe that everybody is smart in at least one unique way and dumb in others. There are so many ways to be smart that the range is infinite.  Find something you do best and when you do, do it a lot.  In other words, choose to be smart.




Bridging the Continents

Posted by Cliff Tuttle| June 15, 2018 | © 2018

No. 1,505

Here’s something cooling to look at.  But you will never guess what it is.

This is the Lief the Lucky Bridge in Iceland.  On the right is the Eurasian Plate.  On Your left is the North American Plate. In the sky is the Northern Lights.

Courtesy of atlasobscura.com, one of our favorite blog sites.

Cybercourts for Smart Contracts?

Posted by Cliff Tuttle| June 14, 2018 | © 2018

No. 1,504

According to Wikipedia:

“A smart contract is a computer protocol intended to digitally facilitate, verify, or enforce the negotiation or performance of a contract. Smart contracts allow the performance of credible transactions without third parties. These transactions are trackable and irreversible.[1] Smart contracts were first proposed by Nick Szabo, who coined the term, in 1994.[2]

Proponents of smart contracts claim that many kinds of contractual clauses may be made partially or fully self-executing, self-enforcing, or both. The aim of smart contracts is to provide security that is superior to traditional contract law and to reduce other transaction costs associated with contracting. Various cryptocurrencies have implemented types of smart contracts.”

Economist Alex Taberrok wrote today in his blog, Marginal Revolution about the idea that a computer could become the mediator of disputes involving smart contracts.  Presumably, instead of consulting case law, the cyber court would apply appropriate algorithms to the facts of a dispute. Its not too far in the future, actually. The disputed subject matter would involve a limited number of variables.  The algorithms would be generated from the rules of the smart contract together with other agreed answers.  You would put it together like the Uniform Commercial Code. And, of course, if there is a consensus that a verdict is wrong, you can reprogram it for the next time.


Flag Day: One Holiday Too Far?

Posted by Cliff Tuttle| June 14, 2018 | © 2018

No. 1,503

Today is flag day and the Pennsylvania State Courts are closed.  This holiday commemorates the day when the Continental Congress adopted the stars and stripes in 1777.  Half-way between Memorial Day and Independence Day, its a national holiday that has never caught on.

Although state courts are closed, relatively few other government offices are. Federal Courts are open. The Post Office is delivering the mail.  My municipality is open for business today.  The clerk I asked about it seemed puzzled by the idea that June 14 was a holiday. Our School District doesn’t mention Flag Day on its calendar. Neither does the the City of Pittsburgh school calendar, which lists today as a snow make-up day.

If you asked ten ten people when Flag Day occurs, it is my guess that you may not find anyone who knows.  And why should they?

Yes, there are parades, a few of them. The National Constitutional Center seems to have the biggest Flag Day celebration in the Country this year.  Otherwise, there is very sparse mention in the media. Nothing appears on page 1 of the Pittsburgh Post-Gazette, not even a list of the few government offices that are closed. On page two, at the bottom, there is a short mention in the Almanac, which lists historical events that occurred on the date of publication.

Happy Flag Day!


Peace and Serenity at the Courthouse Door

Posted by Cliff Tuttle| June 13, 2018 | © 2018

No. 1,502

Just in case you never noticed, the courtyard of the Family Division Courthouse is a pleasant oasis in the middle of downtown Pittsburgh. An inviting place to eat your lunch and watch the squirrels and decompress.

The exercise yard of the old jailhouse, built in 1900, has never looked better.

You cannot see the city traffic all around you, behind the walls.

Welcome to the Family Division. Juvenile Court is on your right.

Famous Last Words: You Who Enter Here Abandon Hope.

Posted by Cliff Tuttle| June 12, 2018 | © 2018

No. 1,501

An automated external defibrillator (AED) is a portable device that checks the heart rhythm and can send an electric shock to the heart to try to restore a normal rhythm. AEDs are used to treat sudden cardiac arrest (SCA). SCA is a condition in which the heart suddenly and unexpectedly stops beating.

There used to be one on the second floor of the City County Building on the Ross Street side. Its gone now, moved to the far side of the building on the second floor.  If you go there, perhaps because you remember the device being there, this sign on the wall tells you where it has been moved.

Unfortunately, you can’t get from one end of the second floor to the other directly.  You must take the elevator to the lobby, walk the length of the building (a city block) ride up the elevator to the second floor and find the Finance Office.  This walk, even at a slow pace, would probably kill somebody suffering an SCA.

Why isn’t this AED located in the lobby?  Has anybody ever needed to use it at either location?



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CLIFF TUTTLE has been a Pennsylvania lawyer for over 40 years and (inter alia) is a real estate litigator and legal writer. The posts in this blog are intended to provide general information about legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus. However, this information does not constitute legal advice and there is no lawyer-client relationship created when you read this blog. You are encouraged to leave comments but be aware that posted comments can be read by others. If you wish to contact me in privacy, please use the Contact Form located immediately below this message. I will reply promptly and in strict confidence.

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