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f/k/a archives . . . real opinions & real haiku

March 5, 2005

a dead horse — publicly driven

Filed under: pre-06-2006 — David Giacalone @ 4:35 pm


Approaching storm…

a black coat in the meadow

snorts against the wind






Scent of the dead horse–

descending vortex

of vultures






Coolness…wind-stirred pines

mirrored in the stream

silhouettes of rising geese




“LIllyShadwell” Rebecca Lilly, from Shadwell Hills 

(Birch Prees Press, 2002)





by dagosan:  

the dog

gets all her kisses —

chilled by a wagging tail 

                                       [March 5, 2005]




“tinyredcheck” My amiable colleague Walter Olson is often very careful with his facts, nuances and analogies, 

but I think his “Litigation slush funds: California propagandizes for antitrust”  (Mar. 3, 2005), at Point

of Law, rather carelessly misses the point.  As we reported on Feb. 10, in antitrust: the video

an award of $496,000 was granted to the American Antitrust Institute to educate California

consumers and businesses about the benefits of the antitrust laws.  The award came from the

Vitamin Cases Consumer Settlement Fund (Judicial Council Coordination Proceeding No. 4076

Master File No. 301803, San Francisco County; approved September 8, 2004).  The case was

brought by the State of California and private plaintiffs under antitrust law, alleging that consumers

were harmed by a price-fixing scheme of the vitamin manufacturers.


Walter wants us to believe that an award in an antitrust case, under a cy pres fund, which will

be used to educate the public about the benefits of a little-understood existing law relevant to

the case, is equivalent to the use of tax-payer funds in a publicity campaign orchestrated by a

Governor wanting to change current laws drastically.   Walter says:

WOlson  “There’s currently a hue and cry over revelations that Calif. Gov. Schwarzenegger’s

administration  used taxpayer funds to prepare materials promoting its view of reforming

wage-and-hour laws; one presumes the same critics deplore the idea of using publicly

driven funds to sway public views in favor of more expansive antitrust enforcement.”

(emphases added)

I guess Walter (careful not to assume) presumes that Schwarznegger’s opposition can’t tell the

difference between tax-payer-funded and “publicly driven.”  (I would agree that chauffered

governors are publicly driven.)


Just what does “publicly driven” mean?  Do funds become “publicly driven” because they derive

from a court case brought by private plaintiffs?  Because the state is suing on behalf of its citizen-

consumers?  Are such funds really analogous to money straight from the State treasury and taxpayer

pockets?  Seems like a stretch that might be made by the sort of slippery lawyers Walter so often





The Consumers Fund was open to applications from non-profit organizations for projects related

to food delivery to the needy, nutritional and health outreach, professional education, nutrition

education, research, as well as antitrust enforcement and policy.  [See the Declaration of the Cy Pres

Fund Administrator, Harry M. Snyder, and summaries of the grant applications; other grants went

to a project to deliver food to the homebound, a scholarship fund for health professionals who serve

underserved areas, the improvement of school district nutitrion services, and for a forum on


Helping the public understand how antitrust policy and enforcement works to assure competition in

the marketplace — and why that is important to consumers and businesses — seems like a good use

of this cy pres fund.  It’s fairly innocuous — except to the fringe who want all antitrust laws revoked. 

I’d be surprised if Walter were among those radicals.   I’ve known the AAI’s Bert Foer for almost two

decades, and I trust him when he says “Our film and materials will be objectively presented, colorful

and provocative” (AAI press release, Feb. 10, 2005).  A public that understands the issues better may

choose to expand antitrust enforcement — or to rein it in.  Making those choices while informed about

the issues seems like something Walter would applaud — unless he just has an axe to grind or an ox

he’s trying to protect.

  • It’s no secret that I am a former antitrust lawyer and an advocate for

    consumer protection through more competition. 

  • Walter, maybe you should borrow Rebecca’s haiku above in your battles with ATLA.


scales rich poor neg  I’ve complained about Michael Boxley before.   I’m pleased to note

that a judge has rejected the claim of the confessed sex offender, and

former chief counsel to NYS Assembly Leader Sheldon Silver, that

the State pay his legal fees in a suit by a former Assembly staffer,

who claims Boxley raped her.   According to an AP/Newsday report

(March 4, 2005):

Supreme Court Justice James Canfield ruled against Boxley,

saying “there is no question but that the criminal activity

that petitioner has either already admitted or is accused of

constitutes a substantial departure from the duties of

public employment.”

So far, no comment from the usually chatty counsel for Boxley.


  • A final point: The one-year suspension of Boxley’s law

    license seems rather lenient to me.  I wonder what

    Carolyn thinks? 

                                                                                                       original of The Gates in full color 

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