As you can tell by the number of hyphens I had to deploy in the headline, this one was hard to classify. But it wasn’t hard to dismiss.
According to Wikipedia, “hotpot” is “a dish whereby a heat source placed on the dining table keeps a pot of soup stock simmering, and a variety of … foodstuffs and ingredients are served beside the pot for the diners to put into the hot stock.” (The article says it’s “also known as steamboat,” and I find that term strangely appealing but the court’s opinion uses “hotpot,” and I will too.) An example can be seen above. The idea is straightforward, but hotpot is also more elaborate than many dishes because of the many plates involved. This is my opinion, at least. I don’t claim to be some kind of steamboat expert or anything.
At Red Hill Restaurant in Wellington, New Zealand, ordering hotpot costs $48 per person, and there is a two-person minimum. According to Red Hill, it introduced the latter requirement because rising costs have made it “not economical for Red Hill to prepare a hotpot for one paying customer only.” Seems plausible. This might require more from servers than other dishes, or maybe they don’t want to pay for a whole bunch of single-person hotpots. Or maybe they just want more money. The point is that a seller is generally allowed to charge whatever the seller wants to charge. If a potential buyer considers that charge to be too high, the buyer’s sole remedy, ordinarily, is to rotate 180 degrees about his or her vertical axis and move away from the product or service being offered.
Or you could sue.
But there are only a limited number of reasons such a suit might be valid. One of them might be discrimination on the basis of some protected characteristic. For example, if you charged $48 per [insert race] person, but $96 per [insert other race] person, that would be illegal because it discriminates on the basis of race. On the other hand, if you charged $48 per person but $96 if that person is Aaron Rodgers, who is indisputably a Hall-of-Fame quarterback but also, it turns out, a kook; or if you just don’t like Aaron Rodgers because maybe he ran over your cat, I don’t know, that would not be illegal because those things are not protected characteristics. Discriminating for reasons like that is not illegal.
According to Taiming Zhang, Red Hill’s two-person minimum is illegal because it “amounts to indirect marital status discrimination as it is less likely that a single person would be dining with another person who is prepared to share the cost of a hotpot meal.” According to New Zealand’s Human-Rights Review Tribunal, no it isn’t because it doesn’t. Zhang v. The First Org Ltd (Strike Out) [2024] NZHRRT 11.
Mr. Zhang, who is single, and was even less surprisingly representing himself, agreed that a single person could still order hotpot for one. So his right to hotpot had not itself been denied. And he did not claim that Red Hill had refused to provide him with hotpot or otherwise treated him less favorably because he is single. But, he contended, its policy had the effect of treating him differently because of his marital status and therefore constituted indirect discrimination, illegal in New Zealand under sections 21 and 65 of its Human Rights Act.
Well, as I said yesterday in a conference call regarding a lawsuit where the plaintiffs want a hell of a lot more than $48, some arguments are so dumb it actually makes it harder to articulate why they’re dumb. This might be one of those situations. The easiest way to put it is probably that while Red Hill’s policy does discriminate against “single diners,” it does that because they happen to be alone at the time, not because they’re unmarried.
As the tribunal put it, “even if we were to accept that persons dining alone are more likely than not to be single, if most single people dined in groups of two or more the impact of Red Hill’s policy may not be significant, and therefore would not constitute a material disadvantage to single people as a group.” And Zhang had not alleged any facts that would show otherwise. Nor had he given the tribunal any reason to think “information about how many people dine alone at Red Hill is available or what the marital status of those diners is,” or “the marital status of those who dine in groups….” I take it that Red Hill doesn’t ask its customers to fill out census forms before serving them, which seems fine to me.
In short, Zhang was really arguing that Red Hill wanted to charge him “too much” for hotpot, but the tribunal seemed to be believe that affordable hotpot is not a fundamental human right:
As a person dining alone, Mr Zhang objects to paying the full price for a serving of hotpot. He claims that he should be able to order a single portion of hotpot in return for which he agrees it is reasonable to pay more than half the price of the minimum two-person portion on offer. Given Mr Zhang accepted it would be appropriate to charge some additional amount for an individual serving size of hotpot, Red Hill argued that Mr Zhang’s principal complaint is about the amount he is required to pay, rather than about discrimination per se and is frivolous for this reason.
We agree that the essence of this claim is about the minimum charge for a serving of hotpot and how large that serving should be. For Mr Zhang to claim that the non-discrimination right is engaged by this question trivialises the right’s importance.
Case dismissed.
]]>This is the question posed and extensively discussed in a forthcoming law-review article that I saw announced the other day on Twitter. See Michael L. Smith, “Is Originalism Bullshit?” 28 Lewis & Clark L. Rev. (forthcoming 2025). Have I read all of it? By no means. But I have read more than enough to commend it to you.
This is not the first time I’ve commended Smith’s writing, and this should be no surprise, given that he clearly enjoys writing about ridiculous subjects. See “Is It Legal to Shoot Fish With a Gun?” (Apr. 14, 2021) (discussing Smith’s 2020 article, “Shooting Fish”). At that time, Smith was an associate at a law firm in Los Angeles, but since then he has apparently come to his senses and become a law professor. Thankfully that still leaves him time to crank out stuff like this, which like the fish-shooting article is both entertaining and interesting.
“Originalism,” to quote originalist Steven G. Calabresi, “is a theory of the interpretation of legal texts, including [but generally meaning] the text of the [U.S.] Constitution.” According to this theory, “the constitutional text ought to be given the original public meaning that it would have had at the time that it became law.” Others believe that what matters are the words themselves, even though the meaning of words or phrases can change over time. For example, if arguing about the “right to bear arms,” an originalist might point to evidence that in 1783, this meant being part of an organized militia that could be called up to defend the state if necessary, but a non-originalist might argue it just means carrying guns around.
Still others might say, “hey, both of you guys are just coming up with arguments to justify the result you like, not really applying a coherent theory that yields consistent results.”
I will just pause here to randomly mention that Calabresi, who is co-founder of the Federalist Society, first opposed the impeachment of Donald Trump and then supported it, and more recently took the position that the insurrection disqualified Trump from holding office, before deciding a month later that no it didn’t. He would not support Trump in the 2024 election, he said then, but recently he called Trump’s New York trial “an unjust political act rivaled only in American politics by the killing of Alexander Hamilton by Aaron Burr,” so maybe he’s rethinking that too? Well, it’s hard to tell what words mean sometimes.
More to the point here, sometimes the people using them don’t care what they mean, or at least don’t care whether they’re true or false. And that is what we usually mean by “bullshit,” according to Prof. Harry Frankfurt, who wrote a terrific little treatise on the issue. A “bullshit” statement is often false, but not necessarily; what makes it bullshit is that the speaker doesn’t care. He has some motive for saying the words other than convincing people with their truth. We all do this to some degree, but some more than others. And some apparently cannot do anything else. Is bullshitting worse than lying? Frankfurt thought so, and at least one judge has agreed. See, e.g., “Sentence Enhancement Imposed for Bullshit” (July 27, 2005). Because “generative AI” is essentially a highly advanced bullshit generator—it neither knows nor cares whether what it’s telling you is true—look for many more opinions on this in the future.
Anyway, I am much more interested in the phenomenon of bullshit than in originalism, so I especially commend to you the first 16 pages of Smith’s forthcoming article, which cover the former topic. The answer to the headline question, of course, is “it depends,” but this article is an entertaining discussion of why that’s true.
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Good news, Virginians—the category of dead animals you can pick up off the side of the road and take home for dinner is about to expand by two.
As you should all know by now, about half of U.S. states have laws that allow citizens, under certain circumstances, to harvest for personal use any supplies that may suddenly become available after a driver-involved animal-termination event. See, e.g., “California’s Roadkill Bill Becomes Law” (Oct. 30, 2019). Virginia is already one of those states, but it appears that the current statute has been deemed insufficient. On February 6, the state’s House of Delegates voted 98-0 to expand it.
Wait, I hear some of you saying. Why do I need permission to pick up and eat some dead thing I find by the side of the road? Or anywhere else, for that matter? Is this not my right? Do I not have dominion over the fish of the sea, and the fowl of the air, and the cattle, and over every creeping thing that creepeth upon the earth? Well, yeah, in a sense, but I’m pretty sure that wasn’t referring to you specifically. And you delegated some of that dominion to the government of your jurisdiction, which has almost certainly passed laws that protect many of those things most of the time, yea, even those that creepeth. Only during hunting season shall they be taken, and only unto the bag limit. But laws like this one create exceptions.
Under Virginia’s current law, for example, “any person driving a motor vehicle who collides with a deer or bear may, upon compliance with the provisions of this section, keep the deer or bear for his own use as if the animal had been killed by that person during hunting season for the animal.” Va. Code § 29.1-539. “Compliance” means that the driver must immediately report the accident, whereupon an officer “shall view the deer or bear” to ensure that it was an accident. If the officer is satisfied, he or she may award the deer or bear to said driver.
If HB 1025 passes, it would expand the list of claimable dead animals to include turkeys and elk, and would expand the list of claimants to include not just the driver but anyone who might come along and discover the corpse. Specifically, any person “who discovers a deer, bear, turkey or elk that has been killed in a collision with a motor vehicle” could make the claim in the same way as above. And under new subsection C, if the driver or discoverer “does not claim such animal,” an officer “may award such animal to any other person who wishes to claim it pursuant to this section.”
Of course, there is a potential problem here—what happens if two people both claim the same former deer, bear, turkey, or elk? If the driver has a claim, but any person who “discovers” it also has a claim—and let’s say they can’t agree to split the carcass, or don’t agree on which is “the good part”—then what happens? This may seem unlikely, but remember that no award can be made until after the officer shows up and renders an opinion on the cause of death. Any number of people might come along during that time and make the same “discovery.” The officer(s) couldn’t be sure who got there first. For that matter, the driver’s passenger, if any, might jump out and stake a claim before the driver could. (I guess the passenger could call from inside the vehicle, but having him “jump out” to do it seems funnier.)
Well, I think the officer’s authority to award the whole animal to one person or another probably includes the implicit authority to divide it up and award parts of it in whatever way seems best. So that may solve the problem described above. I also think maybe the officer should have authority to just buy everybody a sandwich, which might solve the basic problem in a much cleaner way.
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