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11th Circuit Grants Tyson "Economic" Eminent Domai

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HAY MAKER

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October 24, 2005

11th Circuit Grants Tyson "Economic" Eminent Domain
By Terry A. and J. Randall Stevenson


On Tuesday, August 16, 2005, the 11th Circuit Appellate Court overruled an Alabama jury and upheld Judge Strom's decision to overturn the jury's finding that Tyson Fresh Meats Foods, the nation's largest beef packer, used illegal practices to manipulate beef markets. In February 2004, the jury found Tyson liable for $1.28 billion in damages for eight years of market manipulation.


The Court did not disagree with the jury that Tyson had used captive supplies to pressure prices downward. Instead, the Court said the plaintiffs in the suit did not prove the complete absence of an economic justification. Essentially, the Court has ruled that the tremendous producer harm inflicted by Tyson should be ignored even if it overwhelmingly exceeds the financial benefits to Tyson. The 11th Circuit says Tyson had a business justification to do so. The Court said," Pickett must establish more than that the use of marketing agreements have decreased the price for cattle. He must establish that their use has adversely affected competition, which requires showing that marketing agreements have no pro-competitive justifications."

librty.jpg








The only way the Court could have arrived at this conclusion was to interpret the Packers and Stockyards Act non-literally. The Packers and Stockyards Act says that it is unlawful to engage in any course of business that has the effect of manipulating prices. The 11th Circuit supported Judge Strom's decision to add other requirements to the law, making it necessary for the plaintiffs to prove that Tyson did not have a legitimate economic justification for its practices.


In the recent decision by the Supreme Court in the case of Kelo vs. New London, that Court took a similar approach. The question was the extent of the government's power of eminent domain. In the Fifth Amendment to the Constitution the government is granted the power of eminent domain provided it pays a fair value for the property taken and that the taking is for "public use." The Court took the term "public use" and interpreted it non-literally to mean "public benefit." In doing so the decision turned on the economic justification of the action involved.


The two decisions have two significant things in common. First, they both depend on a non-literal interpretation of the law. The literalness of the law is a constraint on the power of the judiciary and these judges took to themselves power that did not belong to them in both cases.


Second, both decisions rely heavily on the idea of economic justification. For the 11th Circuit the economic benefit was for Tyson. As long as the activity Tyson engaged in was justified by their own reasonable business rationalization, they were off the hook.


In the Kelo decision, the economic benefit was ostensibly to the city of New London. But that benefit accrued to the city only through an increased tax base because of economic benefit to the new owners of the condemned property. The primary beneficiary involved is Pfizer.


By its very nature, measuring the legality of an activity according to its economic justifications gives an advantage to the larger, wealthier entity and takes away the premise that all are to be equal before the law. Like the Kelo decision, the 11th Circuit Court granted an "eminent domain." Tyson was granted the right of "taking" through price manipulation, as long as it could justify it through its own economic benefit. The "public benefit" is supposedly a greater efficiency in our economy. But the real beneficiary is Tyson.




Contact The Stevenson Report by email at [email protected] or view at www.thestevensonreport.com
 

agman

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HAY MAKER said:
October 24, 2005

11th Circuit Grants Tyson "Economic" Eminent Domain
By Terry A. and J. Randall Stevenson


On Tuesday, August 16, 2005, the 11th Circuit Appellate Court overruled an Alabama jury and upheld Judge Strom's decision to overturn the jury's finding that Tyson Fresh Meats Foods, the nation's largest beef packer, used illegal practices to manipulate beef markets. In February 2004, the jury found Tyson liable for $1.28 billion in damages for eight years of market manipulation.


The Court did not disagree with the jury that Tyson had used captive supplies to pressure prices downward. Instead, the Court said the plaintiffs in the suit did not prove the complete absence of an economic justification. Essentially, the Court has ruled that the tremendous producer harm inflicted by Tyson should be ignored even if it overwhelmingly exceeds the financial benefits to Tyson. The 11th Circuit says Tyson had a business justification to do so. The Court said," Pickett must establish more than that the use of marketing agreements have decreased the price for cattle. He must establish that their use has adversely affected competition, which requires showing that marketing agreements have no pro-competitive justifications."

librty.jpg








The only way the Court could have arrived at this conclusion was to interpret the Packers and Stockyards Act non-literally. The Packers and Stockyards Act says that it is unlawful to engage in any course of business that has the effect of manipulating prices. The 11th Circuit supported Judge Strom's decision to add other requirements to the law, making it necessary for the plaintiffs to prove that Tyson did not have a legitimate economic justification for its practices.


In the recent decision by the Supreme Court in the case of Kelo vs. New London, that Court took a similar approach. The question was the extent of the government's power of eminent domain. In the Fifth Amendment to the Constitution the government is granted the power of eminent domain provided it pays a fair value for the property taken and that the taking is for "public use." The Court took the term "public use" and interpreted it non-literally to mean "public benefit." In doing so the decision turned on the economic justification of the action involved.


The two decisions have two significant things in common. First, they both depend on a non-literal interpretation of the law. The literalness of the law is a constraint on the power of the judiciary and these judges took to themselves power that did not belong to them in both cases.


Second, both decisions rely heavily on the idea of economic justification. For the 11th Circuit the economic benefit was for Tyson. As long as the activity Tyson engaged in was justified by their own reasonable business rationalization, they were off the hook.


In the Kelo decision, the economic benefit was ostensibly to the city of New London. But that benefit accrued to the city only through an increased tax base because of economic benefit to the new owners of the condemned property. The primary beneficiary involved is Pfizer.


By its very nature, measuring the legality of an activity according to its economic justifications gives an advantage to the larger, wealthier entity and takes away the premise that all are to be equal before the law. Like the Kelo decision, the 11th Circuit Court granted an "eminent domain." Tyson was granted the right of "taking" through price manipulation, as long as it could justify it through its own economic benefit. The "public benefit" is supposedly a greater efficiency in our economy. But the real beneficiary is Tyson.




Contact The Stevenson Report by email at [email protected] or view at www.thestevensonreport.com

Why do these folks always tell only part of the details? Why not disclose all of what the court said? I guess in doing so they would destroy their phony postion.
 

Econ101

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Agman:Why do these folks always tell only part of the details? Why not disclose all of what the court said? I guess in doing so they would destroy their phony postion.

What other part is pertinent, Agman? Maybe you could tell us the rest of the story. Maybe you could also explain the RPA example the court used incorrectly or do you believe they did not use it incorrectly?
 
A

Anonymous

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Earl and Wally have been able to see the true story for years:

http://www.nobull.net/CattlemenLegal/wally/doglift.gif

http://www.nobull.net/CattlemenLegal/wally/fairmarkets.jpg

http://www.nobull.net/CattlemenLegal/wally/tomjefferson.jpg
 

agman

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Econ101 said:
Agman:Why do these folks always tell only part of the details? Why not disclose all of what the court said? I guess in doing so they would destroy their phony postion.

What other part is pertinent, Agman? Maybe you could tell us the rest of the story. Maybe you could also explain the RPA example the court used incorrectly or do you believe they did not use it incorrectly?

Pertinent-the 'serious Daubet" issues with Taylor's testimony or do you still conveniently overlook that statement by the Appellate Court for your convenience. I believe it is on page 13 footnote #7.

The Robinson Patman Act does allow for price discrimination as I already explained. Recent case law per this issue was Glickman vs IBP. I also listed various conditions that would allow for price discrimination. I have no intent of repeating what I have already clearly stated. End of subject-the factless lawsuit got buried as it should have by judges who are much more expert in law than you.

All you ever present is your view of the law and a litany of baseless accusations and conspiracy theories which are even less credible than Taylor's untested theories. That is another part of the story which you fail to acknowledge. What law requires that theories advanced at trail must be tested for validity? Post that answer for the readers and provide something useful for once.
 

ocm

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agman said:
Econ101 said:
Agman:Why do these folks always tell only part of the details? Why not disclose all of what the court said? I guess in doing so they would destroy their phony postion.

What other part is pertinent, Agman? Maybe you could tell us the rest of the story. Maybe you could also explain the RPA example the court used incorrectly or do you believe they did not use it incorrectly?

Pertinent-the 'serious Daubet" issues with Taylor's testimony or do you still conveniently overlook that statement by the Appellate Court for your convenience. I believe it is on page 13 footnote #7.

The Robinson Patman Act does allow for price discrimination as I already explained. Recent case law per this issue was Glickman vs IBP. I also listed various conditions that would allow for price discrimination. I have no intent of repeating what I have already clearly stated. End of subject-the factless lawsuit got buried as it should have by judges who are much more expert in law than you.

All you ever present is your view of the law and a litany of baseless accusations and conspiracy theories which are even less credible than Taylor's untested theories. That is another part of the story which you fail to acknowledge. What law requires that theories advanced at trail must be tested for validity? Post that answer for the readers and provide something useful for once.

The Daubert hearing results were a factual finding by Strom. They are not reviewable by the Appellate Court. Appellate Courts are supposed to review only matters of law, not matters of fact. Reviewing matters of fact violates the 7th amendment. Talk about more similarity with Kelo, judges who ignore the Constitution.
 

Econ101

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Agman,

I want to know what those "serious" Daubert issues were. Was it not "testing" the theories with the definition of "testing" being totally ignored? Taylor tested the data over and over again. What "test" do you deem necessary? Is there ever a "test" on this issue other than the jury deciding the case? What is the standard for factual determinations if it wasn't the process that the trial went through? Was it not up to the jury?
 

agman

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ocm said:
agman said:
Econ101 said:
What other part is pertinent, Agman? Maybe you could tell us the rest of the story. Maybe you could also explain the RPA example the court used incorrectly or do you believe they did not use it incorrectly?

Pertinent-the 'serious Daubet" issues with Taylor's testimony or do you still conveniently overlook that statement by the Appellate Court for your convenience. I believe it is on page 13 footnote #7.

The Robinson Patman Act does allow for price discrimination as I already explained. Recent case law per this issue was Glickman vs IBP. I also listed various conditions that would allow for price discrimination. I have no intent of repeating what I have already clearly stated. End of subject-the factless lawsuit got buried as it should have by judges who are much more expert in law than you.

All you ever present is your view of the law and a litany of baseless accusations and conspiracy theories which are even less credible than Taylor's untested theories. That is another part of the story which you fail to acknowledge. What law requires that theories advanced at trail must be tested for validity? Post that answer for the readers and provide something useful for once.

The Daubert hearing results were a factual finding by Strom. They are not reviewable by the Appellate Court. Appellate Courts are supposed to review only matters of law, not matters of fact. Reviewing matters of fact violates the 7th amendment. Talk about more similarity with Kelo, judges who ignore the Constitution.

Talk about confusing pre-trail with trail testimony-there is a difference you know. The problems with Taylor's work were exposed during cross exam at trail.

In pre-trail the determination is whether he is qualified as an expert witness. That determination does not extend to what was actually presented at trail under cross examination.

Sorry bud, but evidence presented at trail is made available to the Appellate Court for their review. You cannot present NEW evidence derived after the trail to the Appellate Court. I believe that is how the law reads. I believe you know that.
 

ocm

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agman said:
ocm said:
agman said:
Pertinent-the 'serious Daubet" issues with Taylor's testimony or do you still conveniently overlook that statement by the Appellate Court for your convenience. I believe it is on page 13 footnote #7.

The Robinson Patman Act does allow for price discrimination as I already explained. Recent case law per this issue was Glickman vs IBP. I also listed various conditions that would allow for price discrimination. I have no intent of repeating what I have already clearly stated. End of subject-the factless lawsuit got buried as it should have by judges who are much more expert in law than you.

All you ever present is your view of the law and a litany of baseless accusations and conspiracy theories which are even less credible than Taylor's untested theories. That is another part of the story which you fail to acknowledge. What law requires that theories advanced at trail must be tested for validity? Post that answer for the readers and provide something useful for once.

The Daubert hearing results were a factual finding by Strom. They are not reviewable by the Appellate Court. Appellate Courts are supposed to review only matters of law, not matters of fact. Reviewing matters of fact violates the 7th amendment. Talk about more similarity with Kelo, judges who ignore the Constitution.

Talk about confusing pre-trail with trail testimony-there is a difference you know. The problems with Taylor's work were exposed during cross exam at trail.

In pre-trail the determination is whether he is qualified as an expert witness. That determination does not extend to what was actually presented at trail under cross examination.

Sorry bud, but evidence presented at trail is made available to the Appellate Court for their review. You cannot present NEW evidence derived after the trail to the Appellate Court. I believe that is how the law reads. I believe you know that.

The Daubert issue refers only to the Daubert hearing which was pre-trial. You're the one confusing the two. The Appellate Court referred to the "Daubert issues." How are there any "Daubert issues" after Judge Strom found as a matter of fact that Taylor passed the Daubert test? The 11th Circuit was way out on a limb on this just like the Supreme Court on Kelo.

You also never challenged my original post on Taylor's "untested theories". They were not "theories", they were "causation mechanisms" that needed not be proven. Only the fact of causation needed proof, not the mechanism. The jury understood that. And you still haven't answered my original post on the topic.
 
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OCM,

Since Sandhusker and Kindegarten Economics are unable to provide the evidence that was presented in trial to justify a guilty verdict, perhaps you can.

What was the evidence that was presented in Pickett vs. IBP that would justify the juror's "guilty" verdict?

I am assuming you read the testimony or perhaps attended the trial?

Was it Bruce Bass saying (paraphrasing), "as the captive supply goes up the cash price goes down". Is that your "smoking gun"?

Let's hear it................




~SH~
 

agman

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Sandhusker said:
Wouldn't a true Daubert issue be brought up BEFORE the trial?

The expert witness is not cross examined before trail. It was the cross exam at trial that buried Taylor.
 

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agman said:
Sandhusker said:
Wouldn't a true Daubert issue be brought up BEFORE the trial?

The expert witness is not cross examined before trail. It was the cross exam at trial that buried Taylor.

None of the 12 jurors saw it that way.
 

Econ101

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agman said:
Sandhusker said:
Wouldn't a true Daubert issue be brought up BEFORE the trial?

The expert witness is not cross examined before trail. It was the cross exam at trial that buried Taylor.

If you are correct, why did 12 jurors get it wrong? That is where the decision rests. This was not a trial for Judge Strom or the appellate courts to determine. If they overruled the jury they should have written up thier case in the judgement and appellate briefs. They were interestingly void of "even a mere scintilla" of evidence that brought them to their conclusions. Are you saying that the plaintiffs did not present evidence or that you just disagreed with it, Agman? The appellate court was even wrong on the example they used in their brief from the Robinson Patman Act. Did you get it wrong too, Agman?
 

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agman said:
Sandhusker said:
Wouldn't a true Daubert issue be brought up BEFORE the trial?

The expert witness is not cross examined before trail. It was the cross exam at trial that buried Taylor.

Every pre-trial deposition I have ever been to the opposing side has asked questions of the expert witness.

There was evn a "Daubert" hearing in addition to depositions pre-trial in Pickett in which the attorneys were allowed to question and make motions before the judge. I quote:

"On March 13, 2003, the court held a Daubert hearing at which both parties presented evidence. In addition to reviewing the testimony from the Daubert hearing, the Court has also reviewed the parties' briefs, evidentiary submissions, and applicable law. For the reasons set forth below, IBP's motions will be granted in part and denied in part."

From the same ruling:

"IBP does not seem to quarrel with the methodology Dr. Taylor used; regression analysis is a commonly accepted method of reaching such conclusions."
"Although the methodology itself is reliable, IBP contends that Dr. Taylor's application of such methodology is unreliable and does not meet the Daubert test."
"Accordingly, the Court finds that defendant's objection to the foregoing proposed testimony of Dr. Taylor should be denied."

Filed April 10, 2003 with the Clerk, U.S. District Court, Middle District of Alabama
 

agman

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ocm said:
agman said:
ocm said:
The Daubert hearing results were a factual finding by Strom. They are not reviewable by the Appellate Court. Appellate Courts are supposed to review only matters of law, not matters of fact. Reviewing matters of fact violates the 7th amendment. Talk about more similarity with Kelo, judges who ignore the Constitution.

Talk about confusing pre-trail with trail testimony-there is a difference you know. The problems with Taylor's work were exposed during cross exam at trail.

In pre-trail the determination is whether he is qualified as an expert witness. That determination does not extend to what was actually presented at trail under cross examination.

Sorry bud, but evidence presented at trail is made available to the Appellate Court for their review. You cannot present NEW evidence derived after the trail to the Appellate Court. I believe that is how the law reads. I believe you know that.

The Daubert issue refers only to the Daubert hearing which was pre-trial. You're the one confusing the two. The Appellate Court referred to the "Daubert issues." How are there any "Daubert issues" after Judge Strom found as a matter of fact that Taylor passed the Daubert test? The 11th Circuit was way out on a limb on this just like the Supreme Court on Kelo.

You also never challenged my original post on Taylor's "untested theories". They were not "theories", they were "causation mechanisms" that needed not be proven. Only the fact of causation needed proof, not the mechanism. The jury understood that. And you still haven't answered my original post on the topic.

Taylor being qualified as an expert witness per Daubert requirements is vastly different from data he did or did not submit or questions he failed to answer adequately during cross exam. Being qualified and upholding that status during cross exam are two different issues. Being qualified to drive an Indy car does not mean I won't wreck during competition nor does it have any bearing as to how I will finish.

Per testimony under cross exam Taylor stated his "theories" were untested. You can call them anything you want. You have a penchant for that. Read the transcript.

Why do you constantly evade telling the readers the truth on this forum that theories advanced at trail must be tested. That is the law or don't you know that basic fact? You cannot get by in court making accusations like you do on this forum without providing evidence to support your interminable stream of claims.
 

ocm

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agman said:
Taylor being qualified as an expert witness per Daubert requirements is vastly different from data he did or did not submit or questions he failed to answer adequately during cross exam. Being qualified and upholding that status during cross exam are two different issues. Being qualified to drive an Indy car does not mean I won't wreck during competition nor does it have any bearing as to how I will finish.

Per testimony under cross exam Taylor stated his "theories" were untested. You can call them anything you want. You have a penchant for that. Read the transcript.

Why do you constantly evade telling the readers the truth on this forum that theories advanced at trail must be tested. That is the law or don't you know that basic fact? You cannot get by in court making accusations like you do on this forum without providing evidence to support your interminable stream of claims.

These "theories" that you talk about were not a part of Taylor's econometric models, a fact that you have so carefully neglected to present. He tested his models extensively. Those "untested theories" did not affect a single number in his presentations. In court testimony it is not out of line for expert witnesses to speculate based on previous experience. These were not the focus of his testimony, the numbers were.

The defense would naturally focus on a perceived weakness and make an issue of it. It's making a mountain out of a molehill. Like a crime scene investigator who speculates as to whether the light was on or off when the murder was committed, but has previously testified as to blood and ballistic evidence. The defense would attack credibility by making an issue of the light--a distraction from the real evidence.
 

Econ101

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Agman, the theory of price manipulation in the Pickett case was the jury's judgement. You claim that no evidence was presented. Is that the case? Did the plaintiffs not present evidence that the cash markets were being discriminated against? Or did you just not beleive it?

The jury was to decide if Taylor was credible, not the judge. He just presided over the case. If he had good reason to believe it wasn't, he didn't write it up in his ruling. Neither did the appellate court. This is as serious as any "Daubert" issue. The court has to maintian credibility also. They don't get to decide cases. If they want to over rule a jury, they better get it right.

Thanks, OCM for the post supporting my take on the subject. Agman, it does not look like you even read the transcript.

Agman, if the defendant's attorney asked Taylor if he had diabetes, Taylor said "No" and then asked if Taylor "tested this theory?" and then Taylor said "No" again would it be pertinant to our discussion? Could you then claim that Taylor admitted that he did not "test" his theories and therefore had serious "Daubert" issues? If there were serious Daubert issues regarding anything applicable to the judgement to overrule the jury it should have been in the appellate briefs. It was not.

NEXT!! (See how I did that without calling Agman names, SH?)
 

ocm

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agman said:
Sandhusker said:
Wouldn't a true Daubert issue be brought up BEFORE the trial?

The expert witness is not cross examined before trail. It was the cross exam at trial that buried Taylor.

The cross examination during the trial is not Daubert. Thus the problem with the 11th Circuit finding.
 

ocm

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~SH~ said:
OCM,

Since Sandhusker and Kindegarten Economics are unable to provide the evidence that was presented in trial to justify a guilty verdict, perhaps you can.

What was the evidence that was presented in Pickett vs. IBP that would justify the juror's "guilty" verdict?

I am assuming you read the testimony or perhaps attended the trial?

Was it Bruce Bass saying (paraphrasing), "as the captive supply goes up the cash price goes down". Is that your "smoking gun"?

Let's hear it................




~SH~

One of the things that JW's do when they come to your door and get cornered on a topic is that they change the subject. They have done it to me when I have cornered them. That is when I end the conversation.
 

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