No Image

Truck Drivers Weigh In On TransAm Trucking Case, Neil Gorsuch Nomination – Above the Law

March 24, 2017 Admin3915 0

Trump plays with a truck like I would have… when I was seven. (Generated by IJG JPEG Library)

We’ve heard legal opinions and political opinions about TransAm Trucking v. Department of Labor , the “frozen truck driver” case that Senate Democrats highlighted during the Neil Gorsuch confirmation hearings.

You know who we haven’t heard from? Truck drivers.

Their opinion is important. One convoluted line of reasoning I’ve heard from Democrats is: truckers voted for Trump –> Gorsuch hurt a trucker –> truck driving Trump voters will turn on the president because he nominated a person who puts law over truckers –> or something.

Well, here at Above the Law, we’ve heard from truck drivers. They have legal opinions too. After reading our story on TransAm, self-professed truck drivers reached out to us. One burning question was on their mind:

If he was out of gas, how did he drive the truck away? Something missing here. The case says the gas gauge read below empty. But there had to be some gas.

The facts of the case, and perhaps my summary of the case, were kind of confusing. Truck driver Alphonse Maddin pulled over when he “ran out of gas.” But later, he unhitched the trailer and drove away, prompting his firing. I appreciate how many truck drivers hammered in on this apparent factual inconsistency.

Here’s the potential resolution, from the facts as stated by the Tenth Circuit:

At approximately 11:00 p.m., Maddin pulled to the side of the highway because he was unable to find the TransAm-mandated fuel station and his gas gauge was below empty. When he attempted to pull back onto the road ten minutes later, he discovered the brakes on the trailer had locked up because of the frigid temperatures.

It would appear Maddin pulled over before fully out of gas. The brakes froze while he was waiting for further instructions. Then he unhitched the trailer and drove the cab on what little gas was left, ostensibly to a non-TransAm-approved gas station.

Does that clear things up?

Your story does not make sense, Elie. And, by the way, TransAm’s trucks don’t use gas. They use diesel fuel.

Sorry man, my Tonka trucking tutorial didn’t cover that.

Truckers aren’t focused on the gas situation as a mere technicality. Their legal reasoning sounds close to a “contributory negligence” standard. For their perspective, if Maddin put himself in a position to run out of gas, then he caused the events that led to his own firing:

If it ran out of fuel was this not the fault of the driver? If the weather was bad and temps were going to be below zero I would make sure I had fuel.

Number one, the driver should have made sure that he and his truck were prepared for the trip and the weather. Making sure that you have enough fuel is one of those things. He could have called in well before his fuel situation became critical and gotten fuel. Any company would prefer to spend an extra 10 to 20 bucks for out-of-network fuel instead of a couple hundred for a service call or wrecker. Also, a driver needs to ensure that he has appropriately warm clothing just in case he gets stranded in severe weather.

In fact, that last guy went further in ascribing negligence — or at least incompetence — on Maddin’s part:

Second, the frozen brakes. This is something that a driver can handle without need for a service call. Often enough, rocking the truck in reverse will do it, and if not, banging on them with a hammer will release them. This is something every driver should be able to do.

Here’s the thing, these fact-based analyses have literally nothing to do with the case by the time it comes to the Tenth Circuit. The Tenth Circuit is an appellate court. The trial court, the “finders of fact,” determined that Maddin’s truck was out of gas and broken down. All the Tenth Circuit had to decide is what the law requires TransAm and Maddin to do in such a situation; they can’t review if that situation in fact existed. The panel ruled that the law provided Maddin the option he took, and Gorsuch disagreed.

BUT… this discussion is also why it’s generally unfair to pin a “bad outcome” on an appellate judge during the political process of a confirmation hearing. Maddin’s actual situation, the danger he faced in fact, might well have been mitigated or aggravated based on facts that the Tenth Circuit simply wasn’t allowed to consider. Gorsuch’s dissent simply would not have required Maddin to sit there and die . However, the majority’s opinion doesn’t require Maddin to be MacGyver to keep his job under the law.

A key part of Gorsuch’s legal analysis was on the question whether TransAm required Maddin to “operate” the vehicle, in a legal sense, when they ordered him to sit in the truck until help arrived. Truckers who focused on this part of the opinion generally sided with Maddin. This comment is the best example:

I am not a lawyer but I am a truck driver and if one were to argue with Gorsuch on whether or not Maddin operated a vehicle or not, he clearly refused to operate or drive the trailer (yes, we DO drive the trailer!) because the trailer was unsafe to drive. The trailer IS a vehicle, is it not? It’s licensed as such. Gorsuch is wrong on the law! Case closed!

I gotta say, if truckers were judges, we’d have a lot more “case closed!” and a lot less “remanded in part, reversed in part.”

Listening to all these truck drivers, I’m struck by one thing: it’s so important that people feel like the judicial process is “fair.” People can accept cases that turn on the “facts,” they can accept cases that turn on the “law,” but they cannot abide cases that turn on the “party” of jurists.

Is there anything about the Senate confirmation process that gives people confidence that appellate review is something other than politics by other means? When Merrick Garland can’t even get a hearing? When the questions for those that do are all about their politics?

Seems like our whole confirmation process is “Borked.”

Earlier : The ‘Frozen Truck Driver’ Case Democratic Senators Are Hanging On Neil Gorsuch

Elie Mystal is an editor of Above the Law and the Legal Editor for More Perfect . He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com . He will resist.

No Image

Truck Drivers Weigh In On TransAm Trucking Case, Neil Gorsuch Nomination – Above the Law

March 24, 2017 Admin3915 0

Trump plays with a truck like I would have… when I was seven. (Generated by IJG JPEG Library)

We’ve heard legal opinions and political opinions about TransAm Trucking v. Department of Labor , the “frozen truck driver” case that Senate Democrats highlighted during the Neil Gorsuch confirmation hearings.

You know who we haven’t heard from? Truck drivers.

Their opinion is important. One convoluted line of reasoning I’ve heard from Democrats is: truckers voted for Trump –> Gorsuch hurt a trucker –> truck driving Trump voters will turn on the president because he nominated a person who puts law over truckers –> or something.

Well, here at Above the Law, we’ve heard from truck drivers. They have legal opinions too. After reading our story on TransAm, self-professed truck drivers reached out to us. One burning question was on their mind:

If he was out of gas, how did he drive the truck away? Something missing here. The case says the gas gauge read below empty. But there had to be some gas.

The facts of the case, and perhaps my summary of the case, were kind of confusing. Truck driver Alphonse Maddin pulled over when he “ran out of gas.” But later, he unhitched the trailer and drove away, prompting his firing. I appreciate how many truck drivers hammered in on this apparent factual inconsistency.

Here’s the potential resolution, from the facts as stated by the Tenth Circuit:

At approximately 11:00 p.m., Maddin pulled to the side of the highway because he was unable to find the TransAm-mandated fuel station and his gas gauge was below empty. When he attempted to pull back onto the road ten minutes later, he discovered the brakes on the trailer had locked up because of the frigid temperatures.

It would appear Maddin pulled over before fully out of gas. The brakes froze while he was waiting for further instructions. Then he unhitched the trailer and drove the cab on what little gas was left, ostensibly to a non-TransAm-approved gas station.

Does that clear things up?

Your story does not make sense, Elie. And, by the way, TransAm’s trucks don’t use gas. They use diesel fuel.

Sorry man, my Tonka trucking tutorial didn’t cover that.

Truckers aren’t focused on the gas situation as a mere technicality. Their legal reasoning sounds close to a “contributory negligence” standard. For their perspective, if Maddin put himself in a position to run out of gas, then he caused the events that led to his own firing:

If it ran out of fuel was this not the fault of the driver? If the weather was bad and temps were going to be below zero I would make sure I had fuel.

Number one, the driver should have made sure that he and his truck were prepared for the trip and the weather. Making sure that you have enough fuel is one of those things. He could have called in well before his fuel situation became critical and gotten fuel. Any company would prefer to spend an extra 10 to 20 bucks for out-of-network fuel instead of a couple hundred for a service call or wrecker. Also, a driver needs to ensure that he has appropriately warm clothing just in case he gets stranded in severe weather.

In fact, that last guy went further in ascribing negligence — or at least incompetence — on Maddin’s part:

Second, the frozen brakes. This is something that a driver can handle without need for a service call. Often enough, rocking the truck in reverse will do it, and if not, banging on them with a hammer will release them. This is something every driver should be able to do.

Here’s the thing, these fact-based analyses have literally nothing to do with the case by the time it comes to the Tenth Circuit. The Tenth Circuit is an appellate court. The trial court, the “finders of fact,” determined that Maddin’s truck was out of gas and broken down. All the Tenth Circuit had to decide is what the law requires TransAm and Maddin to do in such a situation; they can’t review if that situation in fact existed. The panel ruled that the law provided Maddin the option he took, and Gorsuch disagreed.

BUT… this discussion is also why it’s generally unfair to pin a “bad outcome” on an appellate judge during the political process of a confirmation hearing. Maddin’s actual situation, the danger he faced in fact, might well have been mitigated or aggravated based on facts that the Tenth Circuit simply wasn’t allowed to consider. Gorsuch’s dissent simply would not have required Maddin to sit there and die . However, the majority’s opinion doesn’t require Maddin to be MacGyver to keep his job under the law.

A key part of Gorsuch’s legal analysis was on the question whether TransAm required Maddin to “operate” the vehicle, in a legal sense, when they ordered him to sit in the truck until help arrived. Truckers who focused on this part of the opinion generally sided with Maddin. This comment is the best example:

I am not a lawyer but I am a truck driver and if one were to argue with Gorsuch on whether or not Maddin operated a vehicle or not, he clearly refused to operate or drive the trailer (yes, we DO drive the trailer!) because the trailer was unsafe to drive. The trailer IS a vehicle, is it not? It’s licensed as such. Gorsuch is wrong on the law! Case closed!

I gotta say, if truckers were judges, we’d have a lot more “case closed!” and a lot less “remanded in part, reversed in part.”

Listening to all these truck drivers, I’m struck by one thing: it’s so important that people feel like the judicial process is “fair.” People can accept cases that turn on the “facts,” they can accept cases that turn on the “law,” but they cannot abide cases that turn on the “party” of jurists.

Is there anything about the Senate confirmation process that gives people confidence that appellate review is something other than politics by other means? When Merrick Garland can’t even get a hearing? When the questions for those that do are all about their politics?

Seems like our whole confirmation process is “Borked.”

Earlier : The ‘Frozen Truck Driver’ Case Democratic Senators Are Hanging On Neil Gorsuch

Elie Mystal is an editor of Above the Law and the Legal Editor for More Perfect . He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com . He will resist.

No Image

Truck Drivers Weigh In On TransAm Trucking Case, Neil Gorsuch Nomination – Above the Law

March 24, 2017 Admin3915 0

Trump plays with a truck like I would have… when I was seven. (Generated by IJG JPEG Library)

We’ve heard legal opinions and political opinions about TransAm Trucking v. Department of Labor , the “frozen truck driver” case that Senate Democrats highlighted during the Neil Gorsuch confirmation hearings.

You know who we haven’t heard from? Truck drivers.

Their opinion is important. One convoluted line of reasoning I’ve heard from Democrats is: truckers voted for Trump –> Gorsuch hurt a trucker –> truck driving Trump voters will turn on the president because he nominated a person who puts law over truckers –> or something.

Well, here at Above the Law, we’ve heard from truck drivers. They have legal opinions too. After reading our story on TransAm, self-professed truck drivers reached out to us. One burning question was on their mind:

If he was out of gas, how did he drive the truck away? Something missing here. The case says the gas gauge read below empty. But there had to be some gas.

The facts of the case, and perhaps my summary of the case, were kind of confusing. Truck driver Alphonse Maddin pulled over when he “ran out of gas.” But later, he unhitched the trailer and drove away, prompting his firing. I appreciate how many truck drivers hammered in on this apparent factual inconsistency.

Here’s the potential resolution, from the facts as stated by the Tenth Circuit:

At approximately 11:00 p.m., Maddin pulled to the side of the highway because he was unable to find the TransAm-mandated fuel station and his gas gauge was below empty. When he attempted to pull back onto the road ten minutes later, he discovered the brakes on the trailer had locked up because of the frigid temperatures.

It would appear Maddin pulled over before fully out of gas. The brakes froze while he was waiting for further instructions. Then he unhitched the trailer and drove the cab on what little gas was left, ostensibly to a non-TransAm-approved gas station.

Does that clear things up?

Your story does not make sense, Elie. And, by the way, TransAm’s trucks don’t use gas. They use diesel fuel.

Sorry man, my Tonka trucking tutorial didn’t cover that.

Truckers aren’t focused on the gas situation as a mere technicality. Their legal reasoning sounds close to a “contributory negligence” standard. For their perspective, if Maddin put himself in a position to run out of gas, then he caused the events that led to his own firing:

If it ran out of fuel was this not the fault of the driver? If the weather was bad and temps were going to be below zero I would make sure I had fuel.

Number one, the driver should have made sure that he and his truck were prepared for the trip and the weather. Making sure that you have enough fuel is one of those things. He could have called in well before his fuel situation became critical and gotten fuel. Any company would prefer to spend an extra 10 to 20 bucks for out-of-network fuel instead of a couple hundred for a service call or wrecker. Also, a driver needs to ensure that he has appropriately warm clothing just in case he gets stranded in severe weather.

In fact, that last guy went further in ascribing negligence — or at least incompetence — on Maddin’s part:

Second, the frozen brakes. This is something that a driver can handle without need for a service call. Often enough, rocking the truck in reverse will do it, and if not, banging on them with a hammer will release them. This is something every driver should be able to do.

Here’s the thing, these fact-based analyses have literally nothing to do with the case by the time it comes to the Tenth Circuit. The Tenth Circuit is an appellate court. The trial court, the “finders of fact,” determined that Maddin’s truck was out of gas and broken down. All the Tenth Circuit had to decide is what the law requires TransAm and Maddin to do in such a situation; they can’t review if that situation in fact existed. The panel ruled that the law provided Maddin the option he took, and Gorsuch disagreed.

BUT… this discussion is also why it’s generally unfair to pin a “bad outcome” on an appellate judge during the political process of a confirmation hearing. Maddin’s actual situation, the danger he faced in fact, might well have been mitigated or aggravated based on facts that the Tenth Circuit simply wasn’t allowed to consider. Gorsuch’s dissent simply would not have required Maddin to sit there and die . However, the majority’s opinion doesn’t require Maddin to be MacGyver to keep his job under the law.

A key part of Gorsuch’s legal analysis was on the question whether TransAm required Maddin to “operate” the vehicle, in a legal sense, when they ordered him to sit in the truck until help arrived. Truckers who focused on this part of the opinion generally sided with Maddin. This comment is the best example:

I am not a lawyer but I am a truck driver and if one were to argue with Gorsuch on whether or not Maddin operated a vehicle or not, he clearly refused to operate or drive the trailer (yes, we DO drive the trailer!) because the trailer was unsafe to drive. The trailer IS a vehicle, is it not? It’s licensed as such. Gorsuch is wrong on the law! Case closed!

I gotta say, if truckers were judges, we’d have a lot more “case closed!” and a lot less “remanded in part, reversed in part.”

Listening to all these truck drivers, I’m struck by one thing: it’s so important that people feel like the judicial process is “fair.” People can accept cases that turn on the “facts,” they can accept cases that turn on the “law,” but they cannot abide cases that turn on the “party” of jurists.

Is there anything about the Senate confirmation process that gives people confidence that appellate review is something other than politics by other means? When Merrick Garland can’t even get a hearing? When the questions for those that do are all about their politics?

Seems like our whole confirmation process is “Borked.”

Earlier : The ‘Frozen Truck Driver’ Case Democratic Senators Are Hanging On Neil Gorsuch

Elie Mystal is an editor of Above the Law and the Legal Editor for More Perfect . He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com . He will resist.

No Image

Trump, desperate for a win, bets on health care – CNN

March 23, 2017 Admin3915 0

The House is expected to hold a cliffhanger vote on a repeal bill Thursday as acrimony among GOP lawmakers threatens to snatch defeat from the jaws of victory on an objective that has motivated conservative voters for years. Lawmakers worked late into the night Wednesday but were unable to secure a deal to ensure the bill’s passage. President Donald Trump tweeted out a rallying call to supporters on Thursday morning, telling them they were told “many lies” about Obamacare and calling on them to pressure their congressional representatives to back his measure. “Go with our plan. It’s going to be terrific. You’re going to be very, very happy,” the President said. The vote heralds a moment of massive political significance, especially for Trump — who READ MORE

No Image

Read President Trump's Interview With TIME on Truth and Falsehoods – TIME

March 23, 2017 Admin3915 0

President Trump spoke with TIME Washington Bureau Chief Michael Scherer on March 22 for a cover story about the way he has handled truth and falsehood in his career. This is a transcript of the exchange, with some minor edits. The transcript does not include requests he made of his staff during the interview, or a comment he made after asking to go off the record. PRESIDENT TRUMP: Hey, Michael. TIME: Hey Mr. President, Thank you for taking the time. Absolutely. How have you been, OK? Yeah, it has been a wild couple months. You keep us busy. Yeah, it’s been good though. It’s been good. Do you want me to give you a quick overview [of the story]? Yeah, it’s a cool story. I READ MORE

No Image

Donald Trump Jr. Criticizes London Mayor After Deadly Attack – New York Times

March 23, 2017 Admin3915 0

PhotoDonald Trump Jr. in February in Vancouver, Canada. Credit Jeff Vinnick/Getty Images It has become something of an online custom in the social media age to react to tragic news stories — like Wednesday’s attack in London — with well-meaning if sometimes rote messages like “thoughts and prayers.” But that does not appear to be Donald Trump Jr.’s style. “You have to be kidding me?!” Mr. Trump said Wednesday afternoon on Twitter, as details of the episode — which left at least five dead, including the assailant, and 40 injured — continued to unfold. The message continued, “Terror attacks are part of living in big city, says London Mayor Sadiq Khan.” Mr. Trump, the oldest son of President Trump, was calling attention to an article READ MORE

No Image

Donald Trump associates 'will be indicted,' former NSA analyst says; John McCain calls for new probe – OregonLive.com

March 23, 2017 Admin3915 0

California Rep. Devin Nunes, the Republican chairman of the House Intelligence Committee, stepped into the spotlight on Wednesday. He declared at a press conference that he had come upon information that suggested U.S. intelligence agencies might have picked up communications by then-President-elect Donald Trump and his transition team last year. Nunes implied that this discovery gave credence to Trump’s now-infamous March 4 claim that former President Barack Obama had “wiretapped” Trump Tower, an allegation FBI Director James Comey debunked on Monday. But Nunes’ announcement proved a transitory diversion, as once again new developments popped up related to the investigation of alleged ties between Trump’s campaign and Russian officials seeking to sow chaos in the U.S. electoral process. Trump critics believe the president’s accusations against Obama READ MORE

No Image

Can President Trump Handle the Truth? – TIME

March 23, 2017 Admin3915 0

Generations of American children have learned the apocryphal tale of young George Washington, bravely admitting to his father that he chopped down the cherry tree. The story sprang from a culture that wanted even its fables to serve the ideal of truth. By that standard, the House Intelligence Committee hearing on March 20 should have been a massive humiliation for the President, who followed Washington 228 years later. It is rare for such hearings to be unclassified–and thus televised–but FBI Director James Comey found the largest possible audience for his rebuke of the sitting President. He had given Donald Trump nearly three weeks to walk back his incendiary tweets accusing President Obama of “wire tapping” Trump Tower during the campaign. If such surveillance had been READ MORE

Donald Trump Budget Slashes Funds for EPA and State Department

March 23, 2017 Admin3915 0

The plan to be released at 7 a.m. tomorrow is a “skinny budget,” a pared-down first draft of the line-by-line appropriations request submitted by first-term administrations during their first few months. A broader budget will be released later in the spring that will include Mr. Trump’s proposals for taxation as well as the bulk of government spending — Social Security, Medicare, Medicaid and other entitlement programs. Mr. Trump’s version is likely to be even skinnier than usual, a result of the chaos, inexperience and staffing problems encountered by the Trump White House over the first two months. Issues with coordination plagued Wednesday’s briefing sessions: Republican communications staff members, who usually coordinate their messaging, complained that they had been given no White House guidance on its READ MORE

No Image

The Wall Street Journal editorial board just went off on Donald Trump

March 22, 2017 Admin3915 0

In a speech to the National Republican Congressional Committee’s March fundraiser, March 21, President Trump pledged to cut taxes once the House GOP’s health-care bill is adopted. (Bastien Inzaurralde/The Washington Post) The Wall Street Journal, accused by some journalists of going soft on President Trump, printed a stinging editorial Wednesday that likened the falsehood-addicted commander in chief to an alcoholic. Trump doesn’t even drink. The Journal editorial board ripped the president for what it described as his “seemingly endless stream of exaggerations, evidence-free accusations, implausible denials and other falsehoods,” and reserved special criticism for his unsubstantiated charge that President Barack Obama wiretapped Trump Tower during the campaign. Even after FBI Director James B. Comey testified before Congress this week that his agency does not have “any READ MORE